Technology in Criminal Investigation

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right The Tech Trade Secrets That May Be Harming the Criminal Justice System. [1]

Criminal investigation involves obtaining evidence of criminal acts in order to assist in the arrest and prosecution of the culprits. Criminal investigators try to determine the "methods, motives, and identities of criminals".[2] To assist in this process, investigators have access to various technological methods such as compiled public and private data, wiretapping and other forms of electronic-surveillance.[3] Due to the sensitivity of some of these technologies in relation to breach of privacy for citizens, there have been many ethical issues raised questioning the methods in which the federal, state, and local police departments carry out investigations.

History

During the 1700s, technology in law enforcement was extremely limited. Until the Industrial Revolution, police in most societies were still limited to “Watchmen” who patrolled communities while carrying whistles. Throughout the 1800s, the purpose of policing did not prioritize criminal investigations. Rather, officers prioritized making sure their respective politicians are voted for through brute force and intimidation using technologies such as batons or nightsticks.[4] Thus, the police force was notorious for corruption and was ineffective in preventing crime. Another form of technology used by the police during this era were call and alarm boxes.[5] Call boxes were stationed around communities and directly linked communications to local police departments. Alarm boxes were located in businesses that were used to report a criminal incident or other emergencies within that business. Furthermore, it was not until mid-late 1800s that the police had transportation technologies. Before horseback patrols, police officers patrolled on foot. This new form of wagon system proved effective mainly against strikers and demonstrators.[6] It was not until the 1900s that the police went through a reform that shifted in the direction of removing politics from policing. Throughout the 1900s, policing was removed from the hands of politicians and shifted gears towards a standardized and professional model on a state and national level. This shift established the foundation of many advancements in law enforcements such as motorized patrol vehicles, fingerprinting, improved communication systems, and record keeping.[7]

Ethical Challenges

The ethical issues related to criminal investigation significantly vary depending on the technology being discussed. Some of these issues focus on regulation and conduct of individuals who are involved in the investigation process while others are discussed in terms of their broader impact on society.

Forensics Science

Forensics science is the intersection between science and law as forensic scientists assist "law enforcement officers, lawyers, judges, and juries in delivering justice by providing results and conclusions" by collecting and analyzing evidence.[8] The most common forms of forensics analysis involves working with DNA and fingerprints from crime scenes, but forensics science is a broad topic that can include various sciences such as physical sciences in cases requiring ballistic testing. Since forensics science is a broad field and individuals from various fields are employed without any statutory certification or registration, there is an "absence of any regulatory organization" that oversees misconduct and ethical breaches of protocols.[9] Some common issues in this field includes the misrepresentation of evidence by making insufficient or indiscriminate analysis to fit the case rather than presenting the truth, laboratories reporting minimal results without providing sufficient explanations so that those without any domain knowledge will likely interpret results at face value, and privately employed forensic scientists that are at much greater "risk of malpractice as there are less supervision, less peer review, and more financial incentive".[10] These issues are further emphasized since often times the actual "forensic scientist who performed the analysis is not even required to be present in the court for the testimony".[11] Furthermore, the collection, retention, and analysis of DNA samples raises more ethical concerns. For example, the UK National DNA database was criticized for expanding their database to retain the DNA of millions of innocent citizens due to a breach of personal space. In 2008, the "Grand Chamber of the European Court of Human Rights...reached a unanimous judgement that the indefinite retention of innocent people's DNA profiles, fingerprints, and samples breached privacy".[12] Prior to this decision, law enforcement agencies were allowed to retain people's DNA indefinitely even if they were found to be innocent or if their case was dismissed. In addition, DNA is highly susceptible to contamination which can significantly impact their credibility; they also reveal illness history which researchers tend to overuse to find correlations and "often forensic scientists try to use results from genetic research to put ethnic and racial labels on the samples", which is a practice known as racial classifications and many experts have raised questions regarding the scientific utility of a such practice.[13]

Cyber Forensics

While forensics science refers to the analysis of physical evidence in criminal investigation, cyber (or digital) forensics involve searching for information stored in electronic devices.[14] These devices can range from phones, computers, and even automotive vehicles that store data about an individual's personal life. Smart phones, in particular, are very common for use in criminal prosecutions due to the massive amount of data that can be gathered. Thus, the search of smart phones in investigations have raised questions for breach of privacy. Under the Fourth Amendment in the United States, an officer of the state cannot search an individual or their possessions without probable cause. However, officers can "circumvent the Fourth Amendment protective requirement of a warrant to search issued by a neutral magistrate based upon a finding of probable cause that evidence of a crime would be found". [15] This means that if law enforcement believe that they will find incriminating evidence in an individual's smart phone, they are able to acquire a search warrant for it. Unlike search warrants for traditional evidence, however, this allows for a great "deal of police intrusion into private affairs were there were no other legal grounds pursuant to the Fourth Amendment".[16] The foundation for exceptions to the Fourth Amendment in the United States in regards to cyber black box data (digital tracking data) was the result of the United States v. Wurie and Riley v. California. Under prior law, the legal policies concerning a search incident required the following: "1) need to protect a police officer from an arrestee, 2) the need to protect potential evidence that might be destroyed by an arrestee and 3) the counterbalancing privacy interest of the person being arrested". [17] After conducting an analysis of the Fourth Amendment and its relation to smart phone searches, the Supreme Court did not find that a cell phone created any risk to an officer nor a danger of destruction of evidence after the device is secured. However, the third requirement proved to be a gray area. Considering the massive amount of information stored in smart phones and the "technical change in privacy interests weighing heavily in favor of the individual, the Supreme Court held that the search of the device could only be done once a warrant had been secured after finding of probable cause". [18] This docrtrine does not define a limitation to the amount of data that can be examined in a smart phone, thus it is questioned for its application in diverse cases and whether it "could withstand the changes in technology where so much, if not most of a person's life might be found in that personal device".[19]

The Supreme Court's decision on digital evidence left a lot of room for "ambiguity about the interpretation of the 4th Amendment protections to the digital world". [20] When it comes to physical evidence, an investigator is allowed to seize the contraband for analysis which is limited to the item in question. However, "the issue with digital evidence is that the scope is sometimes overboard". [21] Kelly Cole et al. in "A Review of Recent Case Law Related to Digital Forensics: The Current Issues" summarized the ethical issues in digital forensics into the following four categories:

  • Search and Seizure: Investigators exceeding the scope of the warrant and breach of privacy in examination of unrelated evidence not covered by the issued warrant.
  • Data Analysis: Unreliability of data due to errors in the software (e.g. inaccurate time stamps) or contamination during investigation.
  • Presentation Issues: Lack of understanding from an expert witness regarding how a software, tool, app, etc. works that questions the reliability of their testimony.
  • Legal Issues: Issues relating to unauthorized access and whether defendants were required to provide decryption passwords, double counting charges and sentencing enhancement issues.

The most common issue was related to the ambiguity of laws surrounding search warrants for digital devices. In a lot of cases, "law-enforcement officers did not stop the search when encountered with new information and apply for another warrant".[22]

Big Data

Big data refers to the utilization of various techniques to "aggregate and analyze massive datasets to enhance the effectiveness and efficiency of decision-making in the areas where it is applied". [23] For example, credit card companies use massive datasets of their customers' behaviors to train algorithms that can detect fraud transactions. When it comes to law enforcement, big data is used to support criminal investigations through applications such as crime prediction, mass surveillance, and DNA databases. One of the major advancement in big data usage is towards "informing and supporting predictions of the potential risk of criminal behaviour posed by certain individuals and/or suspect communities".[24] This is known as risk assessment and is a modern advancement of criminal profiling. Law enforcements are able to use big data to identify current and future threats. While these advancements may have positive impacts in criminal investigations, there are a lot of ethical concerns that people have. One of the main issues of big data is "the ever increasing amount of personal information collected, often without the subjects being aware of that collection".[25] Even with de-personalized data, it is possible to cross-reference datasets and identify personal information of individuals. This is especially prevalent as more advancements in AI and machine learning are made with bigger datasets, which will make it "difficult to guarantee full anonymity of data".[26] This ethical issue is commonly associated with surveillance regarding the possibility of privacy and freedom in a surveillance state, which leads to a distrust towards the government and law enforcement agencies. Furthermore, the accuracy of data is not always guaranteed which can lead to inaccurate and biased decisions. There are factors that cannot be accounted for no matter how big a dataset, which is why there is a high "risk of discrimination based on the dataset used" that can "lead to stigmatization" and "wrong identification in criminal cases".[27] Furthermore, the usage of big data in DNA also raised questions regarding human rights. An example of how big data can be used in genetics is predicting the "predisposition of a certain individual to anti-social behaviour based on genetic information".[28] Using big data in genetics could be susceptible to genetic discrimination by indicating that someone is prone to criminal behavior based on their DNA. Without proper considerations of the data and how it represents all people, training algorithms to make predictions about an individual will misrepresent correlations. Due to the negative impacts of utilizing genetic data for profiling, making "inferences by aggregating different and large sets of data, embedded in this context of forensic genetics, therefore hold power to draw erroneous conclusions, which could eventually lead to the prosecuting of innocent individuals".[29] These issues become increasingly concerning to people due to the government's lack of transparency and regulations regarding big data. People want more "regulation to support the uses of Big Data in policing activities, particularly in criminal investigations", in ways that concretely address data protection".[30] At present, there is no clear legislation that established the appropriate use of big data. Similar to how the Fourth Amendment is ambiguous about search warrants in digital investigations, big data in criminal investigation does not have proper regulations to upholds freedom and privacy. This is why "a substantive body of literature in the field of social sciences has been calling into attention that using Big Data in policing activities can pose challenges to privacy and, eventually, lead to the amplification of social inequalities that harm fundamental human rights".[31]

Social Media Platforms

With the advent of social media over the past two decades, law enforcement agencies have increasingly started monitoring people's social media activities from criminal behavior. Photographs, status updates, a person's location at specific times, and direct communications to or from an individual's social media account are all examples of social media evidence. There thousands upon thousands of social media sites that cater to various groups of people each with their own sets of rules and regulations. Due to the immense spread of social media, government agencies mine various social media platforms such as Facebook and Twitter on a daily basis even without having to seek a warrant from the court because of the sheer amount of public data available. For example, "the New York Police Department has a social media unit that mines Facebook, Twitter, and other social media sites for evidence of crimes and potential criminal activity".[32] In addition, law enforcements are also able to gain access to private data by bypassing privacy features that a lot of platforms offer to their users. They are able to "pierce the privacy settings of a person’s social media account by creating fake online identities or by securing cooperating witnesses to grant them access to information".[33] The increasing focus on social media data as evidence for prosecution by law enforcement once again raises questions regarding breach of privacy. The critical implication for the government's use of social media data is that the framework for recognizing and managing privacy intrusions is struggling to keep up with changing social attitudes and habits. Each system identifies and limits the potential harm that could be caused by gaining access to private information. In clinical trials, for example, consent is frequently requested, and anonymity is often ensured. Consent is not required when the state obtains biometric information from a suspect, such as a DNA sample, but retention restrictions apply, as discussed earlier in this article. When the government conducts surveillance, the individual is usually unaware of what is going on, and consent is not required. Because data mining people's activities does not require consent, the latter is more in line with the rise of social media investigations. Another issue of social media data is that the "nature of social media as well as the ease with which it can be manipulated or falsified".[34] Thus, any social media data provided to the court will be scrutinized heavily before being admissible.

Prominent Cases

United States v. Wurie

On September 5, 2007, Brima Wurie was arrested for an apparent drug deal by Boston police officers. One of the items that officers retrieved was Wurie's smart phone, which they then subsequently searched and found a picture of a young woman and a baby on the wallpaper. They also saw that he was receiving multiple calls from a recipient labeled "my house". They tracked the location of the number and confiscated 214 grams of cocaine and other illegal substances from Wurie's house after investigating it, seeing the same young black woman and baby at the residence, and obtaining a search warrant. While not denying his charges, "Wurie moved to suppress the evidence that was obtained from the warrantless search of his phone".[35] This case called into question whether law enforcement have the right to conduct a warrantless search of an individual's electronic devices after making a lawful arrest and whether the Fourth Amendment provided protection against such searches. Wurie's motion was denied and the "United States argued that the police had the authority to search, without a warrant, the cell phone found on Wurie when he was lawfully arrested", although Wurie insisted that he had a "reasonable expectation of privacy regarding the information on his personal effect". [36]

Riley v. California

Riley was pulled over for a traffic infraction, which led to his arrest on weapons charges. A cell phone was taken from him by an officer who searched him prior to his arrest. The officer was reviewing information on the phone when he noticed a street gang term being used repeatedly. Two hours later, after a detective specializing in gangs examined the phone's digital contents further Riley was charged in connection with a shooting a few weeks earlier, based in part on photographs and videos discovered by the detective, and the State sought an enhanced sentence based on Riley's gang affiliations. Riley asked for the suppression of all evidence obtained by the police from his cell phone, however, his motion was denied and the Supreme Court upheld the decision. [37]

United States v. Meregildo

Joshua Meregildo set his Facebook privacy settings so that only his "friends" on Facebook could see his posts. This is a common setting many social media platforms allow their users to utilize for privacy reasons. The government obtained incriminating evidence against the defendant through a cooperating witness who happened to be Facebook "friends" with the Meregildo. Joshua Meregildo sought sought to suppress the evidence seized from his Facebook account, claiming that the government had violated his Fourth Amendment rights. His motion was denied and the Government believed that "legitimate expectation of privacy ended when he disseminated posts to his "friends" because those "friends" were free to use the information however they wanted-including sharing it with the Government", thus they did not violate the Fourth Amendment.[38]

United States v. Stirling

The government took the defendant's computer and gave him with a forensic copy of the hard drive after obtaining a search warrant. The government also conducted a forensic examination of the hard drive and extracted pages of Skype chats downloaded from the defendant's computer that were not "readily available by opening the folders appearing on the hard drive," but the defense did not receive this information until the morning of its expert's testimony near the end of trial.[39] This had a significant impact on Stirling's defense, which led to a retrial because the court decided that the information obtained after a deep search of the hard drive should have been provided to the defense. However, the question of conducting such a search was not raised. [40]

References

  1. . The Tech Trade Secrets That May Be Harming the Criminal Justice System https://www.wnycstudios.org/podcasts/takeaway/segments/trade-secrets-could-be-harming-criminal-justice-system
  2. Encyclopædia Britannica, inc. (n.d.). Criminal investigation. Encyclopædia Britannica. Retrieved February 10, 2022, from https://www.britannica.com/topic/criminal-investigation
  3. Encyclopædia Britannica, inc. (n.d.). Criminal investigation. Encyclopædia Britannica. Retrieved February 10, 2022, from https://www.britannica.com/topic/criminal-investigation
  4. Mason, A. C. (2015). Continuity and change in the history of police technology: The case of contemporary crime analysis (Order No. 1588460). Available from ProQuest Dissertations & Theses Global. (1682477824). Retrieved from https://proxy.lib.umich.edu/login?url=https://www.proquest.com/dissertations-theses/continuity-change-history-police-technology-case/docview/1682477824/se-2?accountid=14667
  5. Mason, A. C. (2015). Continuity and change in the history of police technology: The case of contemporary crime analysis (Order No. 1588460). Available from ProQuest Dissertations & Theses Global. (1682477824). Retrieved from https://proxy.lib.umich.edu/login?url=https://www.proquest.com/dissertations-theses/continuity-change-history-police-technology-case/docview/1682477824/se-2?accountid=14667
  6. Mason, A. C. (2015). Continuity and change in the history of police technology: The case of contemporary crime analysis (Order No. 1588460). Available from ProQuest Dissertations & Theses Global. (1682477824). Retrieved from https://proxy.lib.umich.edu/login?url=https://www.proquest.com/dissertations-theses/continuity-change-history-police-technology-case/docview/1682477824/se-2?accountid=14667
  7. Mason, A. C. (2015). Continuity and change in the history of police technology: The case of contemporary crime analysis (Order No. 1588460). Available from ProQuest Dissertations & Theses Global. (1682477824). Retrieved from https://proxy.lib.umich.edu/login?url=https://www.proquest.com/dissertations-theses/continuity-change-history-police-technology-case/docview/1682477824/se-2?accountid=14667
  8. Yadav, P. K. (2017). Ethical issues across different fields of forensic science. Egyptian journal of forensic sciences, 7(1), 1-6.
  9. Yadav, P. K. (2017). Ethical issues across different fields of forensic science. Egyptian journal of forensic sciences, 7(1), 1-6.
  10. Yadav, P. K. (2017). Ethical issues across different fields of forensic science. Egyptian journal of forensic sciences, 7(1), 1-6.
  11. Yadav, P. K. (2017). Ethical issues across different fields of forensic science. Egyptian journal of forensic sciences, 7(1), 1-6.
  12. Yadav, P. K. (2017). Ethical issues across different fields of forensic science. Egyptian journal of forensic sciences, 7(1), 1-6.
  13. Yadav, P. K. (2017). Ethical issues across different fields of forensic science. Egyptian journal of forensic sciences, 7(1), 1-6.
  14. Losavio, M., Pastukov, P., & Polyakova, S. (2015). Cyber black box/event data recorder: legal and ethical perspectives and challenges with digital forensics. Journal of Digital Forensics, Security and Law, 10(4), 4.
  15. Losavio, M., Pastukov, P., & Polyakova, S. (2015). Cyber black box/event data recorder: legal and ethical perspectives and challenges with digital forensics. Journal of Digital Forensics, Security and Law, 10(4), 4.
  16. Losavio, M., Pastukov, P., & Polyakova, S. (2015). Cyber black box/event data recorder: legal and ethical perspectives and challenges with digital forensics. Journal of Digital Forensics, Security and Law, 10(4), 4.
  17. Losavio, M., Pastukov, P., & Polyakova, S. (2015). Cyber black box/event data recorder: legal and ethical perspectives and challenges with digital forensics. Journal of Digital Forensics, Security and Law, 10(4), 4.
  18. Losavio, M., Pastukov, P., & Polyakova, S. (2015). Cyber black box/event data recorder: legal and ethical perspectives and challenges with digital forensics. Journal of Digital Forensics, Security and Law, 10(4), 4.
  19. Losavio, M., Pastukov, P., & Polyakova, S. (2015). Cyber black box/event data recorder: legal and ethical perspectives and challenges with digital forensics. Journal of Digital Forensics, Security and Law, 10(4), 4.
  20. Cole, K. A., Gupta, S., Gurugubelli, D., & Rogers, M. K. (2015). A review of recent case law related to digital forensics: The current issues.
  21. Cole, K. A., Gupta, S., Gurugubelli, D., & Rogers, M. K. (2015). A review of recent case law related to digital forensics: The current issues.
  22. Cole, K. A., Gupta, S., Gurugubelli, D., & Rogers, M. K. (2015). A review of recent case law related to digital forensics: The current issues.
  23. Neiva, L., Granja, R., & Machado, H. (2022). Big Data applied to criminal investigations: expectations of professionals of police cooperation in the European Union. Policing and Society, 1-13.
  24. Neiva, L., Granja, R., & Machado, H. (2022). Big Data applied to criminal investigations: expectations of professionals of police cooperation in the European Union. Policing and Society, 1-13.
  25. Ronzhyn, A., & Wimmer, M. A. (2019). Literature review of ethical concerns in the use of disruptive technologies in government 3.0. In Icds (pp. 85-93).
  26. Ronzhyn, A., & Wimmer, M. A. (2019). Literature review of ethical concerns in the use of disruptive technologies in government 3.0. In Icds (pp. 85-93).
  27. Ronzhyn, A., & Wimmer, M. A. (2019). Literature review of ethical concerns in the use of disruptive technologies in government 3.0. In Icds (pp. 85-93).
  28. Neiva, L., Granja, R., & Machado, H. (2022). Big Data applied to criminal investigations: expectations of professionals of police cooperation in the European Union. Policing and Society, 1-13.
  29. Neiva, L., Granja, R., & Machado, H. (2022). Big Data applied to criminal investigations: expectations of professionals of police cooperation in the European Union. Policing and Society, 1-13.
  30. Neiva, L., Granja, R., & Machado, H. (2022). Big Data applied to criminal investigations: expectations of professionals of police cooperation in the European Union. Policing and Society, 1-13.
  31. Neiva, L., Granja, R., & Machado, H. (2022). Big Data applied to criminal investigations: expectations of professionals of police cooperation in the European Union. Policing and Society, 1-13.
  32. Murphy, J. P., & Fontecilla, A. (2013). Social media evidence in government investigations and criminal proceedings: A frontier of new legal issues. Richmond Journal of Law & Technology, 19(3), 11.
  33. Murphy, J. P., & Fontecilla, A. (2013). Social media evidence in government investigations and criminal proceedings: A frontier of new legal issues. Richmond Journal of Law & Technology, 19(3), 11.
  34. Murphy, J. P., & Fontecilla, A. (2013). Social media evidence in government investigations and criminal proceedings: A frontier of new legal issues. Richmond Journal of Law & Technology, 19(3), 11.
  35. Rosales, D. M., & Manalastas, J. von. (n.d.). United States v. Wurie. Legal Information Institute. Retrieved February 11, 2022, from https://www.law.cornell.edu/supct/cert/13-212
  36. Rosales, D. M., & Manalastas, J. von. (n.d.). United States v. Wurie. Legal Information Institute. Retrieved February 11, 2022, from https://www.law.cornell.edu/supct/cert/13-212
  37. Legal Information Institute. (n.d.). Riley v. California. Legal Information Institute. Retrieved February 11, 2022, from https://www.law.cornell.edu/supremecourt/text/13-132
  38. Murphy, J. P., & Fontecilla, A. (2013). Social media evidence in government investigations and criminal proceedings: A frontier of new legal issues. Richmond Journal of Law & Technology, 19(3), 11.
  39. Murphy, J. P., & Fontecilla, A. (2013). Social media evidence in government investigations and criminal proceedings: A frontier of new legal issues. Richmond Journal of Law & Technology, 19(3), 11.
  40. Murphy, J. P., & Fontecilla, A. (2013). Social media evidence in government investigations and criminal proceedings: A frontier of new legal issues. Richmond Journal of Law & Technology, 19(3), 11.