The Fourth Amendment in the Digital Age

In the old days – and even now, as Occupy Wall Street exemplifies – people took to the streets to protest. But as technology evolved, new forms of demonstrations appeared. One such form is hacking to pursue political ends – hack-activism, or hactivism. A famous example of a hactivist group is Anonymous, whose attacks on government and major corporation websites to protest online surveillance and censorship were widely publicized.

In late 2010, Anonymous launched Distributed Denial of Service (“DDoS”) attacks[E1] on several websites, including those of PayPal, MasterCard, and Visa. The attacks, known as Operation Payback or Operation Avenge Assange (named after founder and head of WikiLeaks Julian Assange), were a response to those companies’ suspension of the accounts WikiLeaks[E2] used to receive donations. A strong opponent of Internet censorship, members of Anonymous aligned themselves with WikiLeaks, a self-proclaimed non-profit media organization that publishes leaked documents online. Anonymous claimed that the operations were protests against what the group considered an “affront to Internet freedom.”[E3] (Interestingly, Anonymous recently declared it will sever ties with WikiLeaks, denouncing WikiLeaks for making leaked documents available only to people who donate to or promote WikiLeaks on social media.)

WikiLeaks and Operation Payback / Avenge Assange spurred a flurry of legal debates, relating to freedom of expression – for example, should publishing leaked documents be protected under the First Amendment? But it also reignited a far-reaching Fourth Amendment question – how far should searches and seizures go in the digital age? In the present Anonymous case, U.S. v. Collins, 11-471, defense counsel demanded that files irrelevant to the case be deleted from the copies of files that were extracted from seized computers by the government. Prosecution, on the other hand, claimed that deleting files was unduly burdensome and could run the risk of corrupting evidence.

More than a year since the Anonymous hacktivists were arrested,the gridlock was broken earlier this month, when Judge Delwen Lowell Jensen of the U.S. District Court of the Northern District of California ordered the prosecution to hand over the seized files to the court. Judge Jensen explained that this was to prevent prosecutors from accessing private information irrelevant to the case, such as personal e-mails or medical information, while ensuring that all evidence collected in the investigation was preserved. As the latest in a string of cases on the scope of searches and seizures, it is yet to be seen if other courts will take similar stances.

U.S. v. Collins illuminates a common problem for criminal and civil litigators alike – how do we identify relevant electronic evidence? Just like prosecutors cannot seize and retain all documents, adversaries in civil litigation cannot require the other party to produce and hand over infinite information. While the days may be fewer (or entirely gone for some) when first year associates sifted through mounds of documents in warehouses for relevant information, sifting through electronic documents can also be a costly and time-consuming task. Several tactics exist to reduce the costs of e-discovery, including limiting its scope and managing information effectively, which may be applied to some criminal cases as well.

The U.S. v. Collins development poses another question –is it the fact that prosecutors or opposing counsel can see private information the actual problem? Or is it that someone – regardless of who it is – other than the owner [E4] will be able to see it? As a practical matter, especially in criminal proceedings, some privacy may have to give way. In U.S. v. Collins, the court has already stated they will oversee discovery so that prosecutors will not abuse their power over extraneous information. But who will oversee the court? Until new software can be developed to go beyond text searches to accurately single out relevant information– for example, image content detection for child pornography cases or tools to detect files relevant to hacking programs – eventually someone, courts or not, will have to go through the data to check its relevance. If other courts use their discretion in holding and dispensing evidence, such practice will require stronger rules for guidance and accountability.

(For an interview of Jay Leiderman, counsel for Anonymous, see: http://www.theatlantic.com/international/archive/2012/10/hacktivists-advocate-meet-the-lawyer-who-defends-anonymous/263202/.)

 

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