Week 5 Essay

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Cybercrimes Cybercrimes and What are the Methods of Prosecuting Them Trysha Krasnosky Wilmington University LES 330: Cyberlaw February 12, 2023

Cybercrimes Abstract In the United States there are two types of law that are practiced; criminal law and civil law. Within the area of criminal law lies an area of law that has become increasingly more prevalent in the last decade, computer crime. Computer crime is more commonly referred to as cybercrime. The crimes that fall under cybercrime can span from hackers, identity theft, wire fraud and even child pornography. Due to the nature of these crimes and the way that they are accomplished, prosecutors at times struggle with having the criminals charged. Difficulty can arise when attempting to obtainging evidence to prove the alleged crimes and at the same time not violating the constitutional rights of the defendant. Valid search warrants must be properly filed to acquire electronic communication from social media accounts and even e-mail servers. Even when evidence is found properly there can be the issues of whether the jurisdiction is appropriate. Keywords: Computer Crime, Evidence, Electronic Communication, Jurisdiction

Cybercrimes Cybercrimes and What are the Methods of Prosecuting Them The area of cybercrime encompasses a variety of different crimes that harm people without physically coming in contact with them. With the increase of people using the internet for every aspect of our lives comes the risk that you may fall prey to a criminal that is lurking waiting to defraud you. But even when the alleged criminal is found the judicial system requires that certain procedures be followed to prove whether guilt has been proven beyond a reasonable doubt. Cybercrime According to Craig (2013) cybercrime is defined as any criminal activity that is carried out on a computer or the internet. Cybercrimes can be divided into three general categories of computer related crimes: (1) Crimes where the computer is the instrument to commit the crime, (2) Crimes where a computer is the subject, and (3) Crimes that involve the theft of a computer or software. Examples of crimes where the computer is the subject are viruses, spam and even unauthorized web bots. When a person is using a computer as the means to commit crimes, they could be committing crimes ranging from copyright infringement, wire fraud or something as serious as exploitation of a minor. Federal statutes and laws exist to deter these bad characters from committing the crimes but they do very little at stopping the crimes from being committed. Some states have codified laws dealing with the issue of cybercrime and how to punish the criminals for the crimes. Even with these laws and statutes the process of getting the accused behind bars can still be difficult. A major issue that can arise is violating the constitutional rights of the defendant by attempting to restrict their 1 st or 4 th Amendment rights. At times other constitutional issues can arise when dealing with cybercrimes but the majority of them can be pointed back to the 1 st and 4 th .

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Cybercrimes United States v. Warshak In 2010, the United States Court of Appeals issued a ruling that protects people from warrantless seizure of private emails. Prior to this ruling the Supreme Court ruled in the case of Katz v. United States, that it is unconstitutional to conduct a search and seizure without a warrant. Katz created a general test for determining whether the government has the right to conduct a search. First, it must be determined whether the individual in question has an expectation of privacy and Second, is that privacy seen as reasonable by society. Katz concerned the issue of telephone conversation in public areas, and this was the precedent for over 40 years until technology required for a new ruling to be made. The Court of Appeals made this ruling in United States v. Warshak, when it was held that a person enjoys a reasonable expectation of privacy for the contents of emails that are sent or received through a commercial internet service provider. The e-mails were obtained by using the Stored Communications Act, 18 U.S.C. §§2701 which allowed for certain electronic communications to be obtained without a warrant, but this was a violation Warshak’s 4 th Amendment rights. Warshak had a reasonable expectation of privacy when he was sending his emails on the ISP and did not expect them to be accessible by other parties. The court noted that electronic communication “is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past.” It was decided that for the government to obtain the contents of e-mails they must obtain a warrant, use an administrative subpoena, or obtain a court order. United States v. Warshak, now serves as the precedent for how to handle cases involving electronic communication and the steps to follow to legally acquire the information. But when evidence is acquired illegally or if the government conducts warrantless searches the defendant has certain paths they can take to exclude the evidence from being presented to the court.

Cybercrimes Suppressing Evidence Cornell Law defines a motion to suppress as, “a request made by a criminal defendant in advance of a criminal trial asking the court to exclude certain evidence from the trial.” An example of a motion to suppress is where a defendant asks the court to exclude their confession due to a violation of their Miranda Rights. In addition a motion to suppress can be used to exclude evidence that was obtained through a warrantless search based on the exclusionary rule. Craig (2013) states that the exclusionary rule, “prevents the government from using evidence obtained in violation of an accused person’s constitutional rights.” If the defendant wishes for the court to exclude the evidence they must prove that their constitutional rights were in fact violated. Another method to get evidence excluded is by using the Fruit of the Poisonous Tree Doctrine. Craig (2013) states that “evidence derived from an illegal search, arrest or interrogation is inadmissible because the evidence was tainted by the illegality.” However, if the evidence would have been discovered inevitably then this would not apply. The most common causes for evidence to be suppressed are unlawful search and seizures, failure to give Miranda warnings, and chain of custody errors. Additionally, it is illegal to intentionally intercept electronic transmissions whether through a cell phone or an e-mail. Nevertheless, the Federal Wiretap Act, 18 U.S.C. § 2511 (1)(a) created requirements that could be fulfilled for wiretaps to be completed lawfully. The wiretap application must have a statement as to why a wiretap was the only investigative technique available to succeed, whether due to past attempts or it being too dangerous to obtain the information through other means. This issue is beneficial for a defendant because the evidence from wiretaps cannot be used in trial if it is in violation of the wiretap act. When it comes to evidence it falls on the defendant to ensure that all of it was obtained legally and through proper means. On the other hand, the prosecution has the difficulty of making

Cybercrimes certain that the investigation was conducted thoroughly and that all evidence is presented lawfully. Prosecution When formulating a case that involves cybercrime the prosecution can face numerous hurdles that can deter the government from proceeding with charging an alleged criminal. The first issue can start back at the original investigation of the crime. Since crimes committed through a computer are much different from physical crimes, law enforcement has to be knowledgeable on the proper steps that have to be followed and what evidence is required to get a warrant to help prove the case for prosecution. If the case is only based on loose facts a judge may not issue a warrant to search a phone or a computer. The time wasted could mean that the alleged criminal would have the ability to delete or destroy the device before it can even be searched. If a warrant is obtained and the electronic devices are retrieved, does the local law enforcement have the resources to effectively search the devices and do they have the time to devout to the investigation. This can cause a problem for prosecution who may receive a case that was not thoroughly investigated and the time frame for retrieving items from social media or other means could have passed. Another difficulty that prosecution has to contend with is establishing proper jurisdiction. As previously discussed, cybercrimes do not have to take place in the same jurisdiction as the place of the victim so it falls on prosecution to prove that the alleged criminal intended to cause harm within the state. Because of this it can sometimes be easier for federal prosecutors to try cases of cybercrime since they are able prosecute cases using federal statutes established under the Commerce Clause. For cases that involve international investigations of cybercrimes federal prosecutors must rely on partnerships with various international organizations to help investigate the crime. Another issue with international

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Cybercrimes cybercrimes is whether the country that the defendant is residing in allows for extradition back to the United States or will the prosecution have to wait to catch them when traveling. Because of the numerous hurdles and difficulties involving international cybercrimes many go uncharged or linger until inevitably being dismissed due to lack of evidence. Conclusion Cybercrime is a section of criminal law that is increasingly becoming more prevalent but still difficult to prosecute effectively. It falls on the government to prove that the alleged committed the crime beyond a reasonable doubt, but this isn’t simple due to the challenges of acquiring evidence legally and not violating any constitutional rights of the alleged. Federal statutes have been codified to establish stronger laws to combat cybercrime but even with these laws, prosecution has to confirm that jurisdiction is correct. Cybercrimes consist of a broad area of crimes and without a clear and concise global entitative the criminal will prevail at causing harm to more victims and requiring the government to use more resources to prosecute them.

Cybercrimes References 18 U.S.C. § 1030 18 U.S.C. § 1343 18 U.S.C. § 2511(1)(a) 18 U.S.C. §§ 2701–2712 Black’s Law Dictionary (9 th ed. 2009) Craig, B. (2013). Cyberlaw : The law of the Internet and information technology . Boston: Pearson. Grimes, Roger. (2016, December). Why it’s so hard to prosecute cyber criminals. CSO https://www.csoonline.com/article/3147398/why-its-so-hard-to-prosecute-cyber- criminals.html Katz v. United States, 389 U.S. 347, 361 (1967) Motion to Supress . (n.d.) Cornell Law School. Retrieved February, 2023 from https://www.law.cornell.edu/wex/motion_to_suppress United States v. Warshak , 631 F.3d 266 (6th Cir. 2010)

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