Introduction: Investigators and the Fourth Amendment of the U.S. Constitution
(Content Under Development : Coming soon)
Accepted in: NC, SC, TN, KY, NM, KS, GA, IA, MN & OK (approved for 2 hours)
Smart devices are everywhere; from door cameras to smart speakers and smartwatches, they have become an integral part of everyone’s lives. Smart devices can also be a helpful tool in collecting information that would otherwise be difficult to obtain during the normal course of an investigation. Smart devices have provided new insight into how crimes are solved and how data is collected on a subject in a civil investigation.
Data collected from smart devices can potentially pave the way for law enforcement and private investigators to establish timelines of a user’s activities. The surreptitious nature of Smart speakers (Amazon Echo, Google Nest, etc.) allows these devices to obtain timestamped records of voice clips in the background of our daily lives without being noticed. Smartphones can provide records of the user’s activity and location with geofencing. The abundance of fitness trackers and smartwatches can provide forensic specialists with the precise time frame and location of a victim’s vitals during a crucial time of an investigation. Though smart devices are meant to make our lives easier and more convenient, they can also be employed as a powerful investigative tool.
Data mining personal information of everyday Americans on a daily basis is not without controversy. The enhanced precision of recording every footstep by smartphone technology has recently become an essential tool for obtaining information for investigative purposes. However, tracking the movements of spouses and domestic partners tread heavily into the privacy of others.
Purpose and Goals of the Course for PI Investigators on the Fourth Amendment
One of the goals of this course is to understand what smart devices are and identify all commonly used smart devices in our day-to-day lives. This course will help investigators identify the ways smart devices can provide valuable information for private investigators. This course will also examine Supreme Court decisions protecting the 4th Amendment and the protections the U.S. Constitution guarantees all citizens.
- Define what classifies a smart device.
- List examples of smart devices.
- Identify the type of data gathered by smart devices and determine the various reasons for mass data collection.
- Identify the different ways in which smart devices can aid in an investigation (criminal and civil).
- Determine the admissibility of certain smart devices in courts.
- Determine how to acquire smart devices for an investigation properly.
- Understand how to track and use smart devices for investigative purposes.
- Understand how Geofencing/smartphone tracking is made possible by the global positioning system (GPS) – a network of satellites owned and operated by the U.S. Space Force (USSF).
- An electronic device that uses the Internet to operate interactively with a network of other internet-connected devices.
- Smart devices have made core functions at home (security, lighting, etc.) more convenient and efficient.
- The Internet has simplified ease of connection and operation of these devices.
LIST OF SMART DEVICES WITH EXAMPLES
DATA COLLECTED BY SMART DEVICES
According to an April 2021 fact sheet from the Pew Research Center, an estimated 85 percent of Americans owned a smartphone – up from 35 percent in 2011. Furthermore, 97 percent of Americans owned a cell phone of some kind.
Smart devices constantly collect data on their users to provide them with a more personalized experience. Companies use this information to determine user behavior patterns and interests. These patterns, in turn, are used for advertising products, news stories, and other suggestions that the user may find useful or interesting.
Advertisers and smartphone companies must collect a wide breadth of information to form a profile for their users. Investigators may find this data useful when establishing a different kind of profile – one that can aid in establishing a reliable narrative for an investigation.
Below are a few examples of the data collected by smart devices.
- Daily schedules. Sleeping patterns, itineraries, and future plans.
- Physiological attributes. Sleeping patterns, exercising, dietary needs, and core body vitals (weight, heartbeat, temperature, etc.).
- Digital footprint. Passwords, browsing history, online photos and videos, frequent contacts.
- Household information. Occupants and their locations, utility bills, etc.
SMART DEVICES LISTEN
- Devices such as Google’s Assistant, Apple’s Siri, Amazon’s Alexa, and Facebook’s Portal are assumed to become active and start recording only when they hear their “Wake Word.” However, their patents say otherwise: the microphones on many smart devices are always active by default. In addition, these devices can be unintentionally activated by a word or phrase that sounds similar to the assigned “Wake Word.”
- A study conducted by Northeastern University and Imperial College London found that smart speakers can accidentally activate up to nineteen (19) times a day and record up to forty-three (43) seconds of audio with each accidental activation.
STORAGE OF COLLECTED DATA
- Cloud Storage – The most common option; cloud storage is accessible globally, making information readily available.
- Data is sometimes stored on a smart device for a defined time.
INTERNET OF THINGS (IoT)
- Definition. Any device or system that can transfer data through the Internet or other communications networks.
- Every smart device used at home is a part of the IoT.
- Data is a transactional tool; therefore, no information is worthless. For instance, smartphones may collect data on the smallest interactions, including search queries, the ads a user clicks on, and locations the user visits.
- Data mining. Information is an invaluable currency in the modern world. Data mining is the process of using massive data sets to personalize user experience. Data mining is also used in the development of artificial intelligence.
- The ability of several devices to communicate with each other may allow investigators to gather insight into situations where no witnesses are present. Recordings from different devices within the IoT can provide a complete image of a crime scene or an alibi for a suspect in an investigation.
Criminals often ignore smart devices during the crime and instead focus on not leaving physical pieces of evidence such as fingerprints. There is always a digital fingerprint available in IoT; for example, a smart device such as Alexa can record and timestamp every conversation even when it is dormant.
DATA ANALYTICS IN REAL-LIFE CRIME-SOLVING
- Law enforcement agencies have seized smart speakers in cases where prosecutors believed a smart device may have advertently recorded events preceding, during, and following a crime.
- Fitbit fitness trackers provide a plethora of information regarding a user’s location and vitals.
- Smart speakers can corroborate witness or suspect testimony. It has become increasingly more common for law enforcement agencies to request recordings from smart speakers to verify witness testimony.
SMART DEVICE EVIDENCE
- Smart devices are admissible as evidence in court – their IP addresses confirm location and time. They also store search histories.
- Forensic investigators can prove that the device in question was not tampered with for their permissibility to be granted.
- Smart home devices, such as thermostats and lights, can provide clues to when an individual enters or leaves a room.
WHEN TO RELY ON SMART DEVICES
- When there is no way to prove that the suspect was at the crime scene.
- When there are no leads on the case.
- To support and verify existing evidence.
- When establishing an alibi for a suspect.
DETERMINING THE AUTHENTICITY OF EVIDENCE PROVIDED BY SMART DEVICES
- Use forensics to prove that the device was not tampered with or altered in any way.
- Computer drives and specialized smart devices can store deleted search history that forensic technicians can retrieve.
THE FOURTH AMENDMENT
The Fourth Amendment protects people from unreasonable searches and seizures by the government. However, it is not a guarantee against all searches and seizures, only those deemed unreasonable under the law. Probable cause must be found before police can make an arrest or obtain a search warrant. Probable cause is met when there is a reasonable basis for believing a crime has been committed.
- UNITED STATES v. JONES. Presented the matter of whether “attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.” (Jones, 132 S. Ct. at 948.)
- RILEY v. CALIFORNIA. Ruled that “the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” (https://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf)
- UNITED STATES v. WURIE. Presented the issue of whether “the Fourth Amendment require[s] the police to obtain a warrant before searching an arrestee’s cellphone call log.” (https://www.law.cornell.edu/supct/cert/13-212)
- KENTUCKY v. KING. Ruled that “The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” (https://supreme.justia.com/cases/federal/us/563/452/)
- CARPENTER v. UNITED STATES. “This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.” (https://casetext.com/case/carpenter-v-united-states-67)
GPS, GEOFENCING, AND PRIVACY LAWS
- A geofence is a virtual boundary for a real-world area. Geofencing can notify users when devices enter and exit the established boundary. This information can be used to develop or confirm a timeline for an individual’s location.
- Geofence warrants allow law enforcement to conduct searches of location databases to obtain cell phone and user data near a specific area during a certain timeframe.
- Reverse keyword search warrants allow law enforcement to identify users who searched for a specific term within a particular time period.
- Third-party doctrine states that “people are not entitled to an expectation of privacy in information they voluntarily provide to third parties.” (https://sgp.fas.org/crs/misc/R43586.pdf)
Identify the are two types of CSLI historical and real-time. The former allows police and prosecutors to review documented locations of individual cell phone towers in the hopes of retracing the movements of suspected criminals. The latter lets police obtain current location information – and track the future movements – of a phone belonging to a suspected criminal or person of interest in a criminal investigation.