Network Investigation Techniques: Government Hacking and the Need for Adjustment in the Third-Party Doctrine

Authors

Eduardo R. Mendoza, St. Mary's University School of LawFollow

Abstract

Modern society is largely dependent on technology, and legal discovery is no longer limited to hard-copy, tangible documents. The clash of technology and the law is an exciting, yet dangerous phenomena; dangerous because our justice system desperately needs technological progress. The clash between scientific advancement and the search for truth has recently taken an interesting form—government hacking. The United States Government has increasingly used Network Investigation Techniques (NITs) to target suspects in criminal investigations. NITs operate by identifying suspects who have taken affirmative steps to conceal their identity while browsing the Internet. The hacking technique has become especially useful to officials attempting to capture suspects utilizing the “dark web.” Unclear, however, is whether an NIT falls within the scope of a Fourth Amendment search when deployed against a user intentionally shielding his or her Internet Protocol Address (IP address).

There is a need for an adjustment in the Fourth Amendment’s third-party doctrine. The Fourth Amendment’s protection against search and seizure is largely governed by the reasonable expectation of privacy. Therefore, the Fourth Amendment demands adjustment. A reasonable expectation of privacy, without adjustment to modern trends, is not reasonable. On one hand, society wants the government to prevent criminals from utilizing browsers that keep users anonymous. On the other hand, the need for truth and justice may not outweigh society’s need for privacy. Nevertheless, a thorough examination of the circumstances should be required. Constitutional interpretations are not static—and a static approach to the exclusionary rule is directly at odds to longstanding interpretations of the Constitution. It has long been held that as technology advances the law must adjust. This continues to hold true today. The Supreme Court of the United States must re-evaluate third-party doctrine in light of the digital age.

First Page

237

Last Page

267

Date Created

1-1-2017

Publisher

St. Mary's University School of Law

Editor

Daniela Mondragón

Recommended Citation

Eduardo R. Mendoza, Network Investigation Techniques: Government Hacking and the Need for Adjustment in the Third-Party Doctrine, 49 St. Mary's L.J. 237 (2017).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol49/iss1/3