Situations Where Search and Seizure Are Possible Without a Warrant
Analysis of available national legal frameworks indicates insufficient harmonization of ‘core’ cybercrime offences, investigative powers, and admissibility of electronic evidence. International human rights law represents an important external reference point for criminalization and procedural provisions.
The fourth amendment of the United States of America constitution reads as follows; The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Similar to most other American laws, the Fourth Amendment has its roots deep in the heart of English common law. In Seymane (1604), the court recognized that the King did not have unlimited authority to enter his subjects homes but that under certain legal processes where such intrusions were necessary, the agents had to follow due course. The English citizenry faced an unprecedented rise in searches and seizures using general warrants. In one such case, Entick v. Carrington, Charles Pratt, and 1st Earl Camden came to the legal conclusion that a search carried out by the defendant in the name of the king was unlawful. The general warrant authorized the seizure of the Plaintiff’s papers and not particular ones, and that the warrant lacked probable cause. This case became the precedent upon which all other criminal and civil cases under common law are determined. The United States Congress recognized the need to assure citizens that their right to privacy would not be violated. The State of Massachusetts was the first colony to make laws that protected the privacy of the citizenry. The 1756 laws outlawed the use of general warrants which had posed a serious problem especially after attempts to enact the Excise Act of 1754. James Otis represented a group of merchants who petitioned the court to examine the issues of general warrants and writs of assistance. Although the court ruled in favor of the law, Otis won the election to the Massachusetts Colonial Legislature where he played a significant role in passing legislation that required writs of assistance to be issued by judges or justices.
Across nations, borders, and cultures one statement rings true: the law has a difficult time keeping up with changes in technology. Technology evolves at a faster rate than legislative bodies are able to draft or ratify laws. Accordingly, citizens are often left with a confusing web of outdated laws. “Starting in the 1960s, the topic of privacy received steadily increasing attention (Philip E. Agre and Marc Rotenberg, 1997). The discourse has ranged from popular writers to journalists to experts in law, philosophy, psychology, sociology, literature, economics, and countless other fields. With technological innovations comes public fear of a general loss of privacy. Accordingly, people are often required to provide personal information in order to complete even the most mundane tasks (Adam M. Gershowitz, 2016). “The emergence of digital communication networks on a global scale; emerging technologies for protecting communications and personal identity; new digital media that support a wide range of social relationships” are just a few of the ways in which people are asked to forfeit personal information in exchange for access to technology that will keep them “in the loop.”
Briefly, in its present form, the CoE Convention allows state intrusions into the sphere of individual privacy rights to gather evidence for use in subsequent criminal prosecutions without adequate guarantees of procedural due process. One solution may be the addition of a Protocol to the treaty, modeled after the proposed CoE Constitution providing minimal guidelines for procedural due process, extended to citizens of all participating nations. In this way, the CoE Convention on Cybercrime could become a blueprint for future international endeavors to harmonize penal law enforcement.
Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularly in Cell Phone Searches 69 VANDERBILT L. REV. 585, 596 (2016)
Philip E. Agre and Marc Rotenberg eds., Introduction, TECHNOLOGY AND PRIVACY: THE NEW LANDSCAPE 1 (MIT Press 1997).
Daniel Solove, Understanding Privacy 4 (Harvard University Press 1st ed. 2008).