| Department of Justice on Drugs |
|
www.usdoj.gov/ndic/pubs/682/legal.htm National
Drug Intelligence Center Drugs
and the Internet - An Overview of the Threat to America's Youth December 2001 UNCLASSIFIED Department of Justice on Drugs
Legal
Issues: Challenges Facing Policymakers and Law Enforcement The nature of the threat posed by pro-drug
Internet websites raises a number of legal issues of which policymakers
and law enforcement should be aware. The increasing popularity of the Internet has challenged legislators
and law enforcement officials trying to prevent its use to facilitate
drug crimes. Besides having to develop new investigative methods to
adapt to computer technology, law enforcement agents must ensure that
any new methods are constitutional and comply with federal statutes.
Legislators trying to make certain that federal statutes effectively
address the misuse of the new medium must do so without overreaching and
violating individual rights. The following summarizes some of the legal
issues that law enforcement agents and legislators may encounter. More
information can be found in the 1997 Report on the Availability of
Bombmaking Information and in Searching and Seizing Computers and
Obtaining Electronic Evidence in Criminal Investigations, both published
by the Department of Justice. First
Amendment, U.S. Constitution Any government effort to restrict
individuals from using the Internet to disseminate information that
assists others in illegally producing, using, or distributing controlled
substances must respect the First Amendment of the Constitution.
The First Amendment strongly protects an individual's right to freedom
of speech and can be infringed only in limited situations. Whether the
government can prohibit an individual from disseminating such
information over the Internet depends on factors such as the type of
information disseminated, how it is disseminated, and the intent with
which it is disseminated. The
1997 Report on the Availability of Bombmaking Information addresses a
number of legal issues involved in limiting the dissemination of
bombmaking information. Although the subject of the report was the
dissemination of a different type of information, its legal analysis can
be applied to the dissemination of information that facilitates drug
crimes. The first issue to be discussed is whether the government
can restrict the dissemination of information simply because it
advocates the production, use, or distribution of controlled substances.This issue has been addressed by many
courts including the U.S. Supreme Court, which clearly have ruled that
any attempt to prohibit the dissemination of such information would
violate First Amendment rights. A second issue is whether the government can
restrict the dissemination of lawfully obtained information that could
be used by others to illegally manufacture, use, or distribute
controlled substances.
The answer to this issue is not as clear. However, courts often have
held that if such public information is widely distributed to a large,
unidentified audience, it cannot be restricted by the government without
infringing on First Amendment rights. The rationale behind this decision
is that even legitimate publications could be used to assist individuals
to illegally manufacture, use, or distribute controlled substances.
Legitimate publications might include textbooks on chemistry or
agriculture, encyclopedias, or even government manuals. By
contrast, if the individual's dissemination of such information is
directed towards a specific person or audience who acts on the
information, the dissemination can rise to the level of "aiding and
abetting" another in committing a crime. Such "aiding and
abetting" is considered a "speech act" and is not
constitutionally protected simply because it is speech. Whether an
experienced methamphetamine producer provides an apprentice with
face-to-face assistance or with help over the Internet, the instructions
can still rise to the level of aiding and abetting a criminal act. Such
activity is not protected by the Constitution because, unlike
disseminating information to a wide audience that may or may not engage
in the illegal activity, this dissemination is directed at a person or
persons to assist in committing illegal activity. Even if the recipients
of the information act upon it at some later date, the disseminator can
still be prosecuted. A closely related issue is whether the
government can prohibit an individual from disseminating information
with the intent of assisting another person in the illegal manufacture,
use, or distribution of controlled substances, even when the recipient
does not actually act on the information. The Department of Justice has referred to this issue as
"attempted aiding and abetting." Court decisions seem to allow
prohibition of such dissemination if the government can prove that the
individual disseminated the information with the specific intent of
assisting another individual in committing a drug crime. Individuals
prosecuted in cases with similar issues have argued that they did not
know how the recipients were going to use the information and that they
provided the information for legitimate purposes, such as scientific
research, law enforcement purposes, or general public interest. However,
prosecutors have been able to prove intent in some situations by showing
that the disseminated information contained declarations demonstrating a
purpose to facilitate drug crimes, or that the disseminated information
had no use other than to facilitate drug crimes. Another closely related issue is whether the
government can constitutionally prosecute individuals who disseminate
information with the knowledge that a specific recipient intends to use
it to illegally manufacture, use, or distribute a controlled substance.
Whether such a restriction is valid under the Constitution is not clear.
According to analysis in the Department of Justice's bombmaking report,
such a prosecution would probably survive a constitutional challenge as
long as the government was required to prove that the individual had
reasonable cause to know that a specific recipient of the information
intended to use the information to commit a crime. Jurisdiction The
Internet has allowed individuals to conduct real-time criminal activity
without regard to geographic boundaries. Law enforcement officers
investigating such activity must determine the actual location of the
criminal activity and then what legal requirements apply to that
jurisdiction. Criminal
activity conducted over the Internet from a foreign country is just one
situation that can cause jurisdictional problems for law enforcement
officers. The Internet allows individuals located in a foreign country
to induce criminal activity in the United States; however, since the
individuals are actually outside the country, they are often untouchable
by the U.S. government. Even if a foreign government assists U.S. law
enforcement officers in the investigation, the investigating officers
must comply with sensitive and complex international policies. Individuals
conducting criminal activity from within the United States can also
cause jurisdictional problems for investigating officers. Individuals
committing crimes over the Internet can be located in various
geographical locations, and the computers storing the data can be in
places separate from the individuals. Prosecution can be difficult
because the locations often cross over different judicial districts, and
that can affect various legal procedures. For example, when
investigators apply for a search warrant to obtain data stored on a
computer, they must consider the judicial districts in which the
evidence is actually stored. Although an agent might be accessing
information while he is in New Jersey, the data could be stored in
another judicial district in the United States. This situation sometimes
requires investigators to obtain multiple warrants from different
judicial districts. Privacy
Statutes Searches of computers by law enforcement
officers attempting to gather evidence of crimes committed over the
Internet must comply with federal statutes that protect individual
privacy.
Two major statutes are the Privacy Protection Act (PPA), 42 U.S.C. §
2000aa, and the Electronic Communications Privacy Act (ECPA), 18 U.S.C.
§ 2701, et seq. If officers performing searches of computers fail to
abide by these statutes, they risk civil liability for their actions. The
PPA affects law enforcement officers investigating crimes committed over
the Internet because it generally prohibits them from seizing materials
that are possessed for the purpose of publishing information to the
public. A person using
a computer to post information on the Internet may be considered a
publisher under the PPA. An exception under the PPA
permits law enforcement officers to seize materials that are contraband
or evidence of a crime. However, this
exception does not give officers carte blanche to seize all the data on
the computer, and officers may have difficulty separating information
that is contraband or evidence of a crime from information not connected
with the investigation. For example, if a computer is used to
publish a website that assists other individuals to commit drug crimes
and the
same computer is used to publish a website that addresses politics, the information connected
with the drug crime website would not be protected under the PPA, but the information connected with the political website
could be protected under the PPA. A mistake by the officers could expose
their agency to liability. Another
statute, the ECPA, is aimed at protecting the privacy of electronic
communications. To comply with the ECPA, law enforcement officers must
take special precautions when searching or seizing computers that
contain electronic communications from third parties. These precautions
are especially important when gathering evidence from an ISP. Like the
PPA, the ECPA imposes civil liability on agencies for any violations of
the Act. Both
the PPA and the ECPA are complicated bodies of law. Individuals wanting
more information may wish to read Searching and Seizing Computers and
Obtaining Electronic Evidence in Criminal Investigations. Execution
of Warrants Because
data can be erased easily from computer systems, investigators executing
search warrants must consider the possibility that individuals may try
to destroy evidence before it can be seized. Individuals can set up
their computers so that typing a few keystrokes will initiate the rapid
destruction of incriminating files. Also, data can be stored in various
geographical locations, and any number of persons with access to the
information can destroy it even while investigators are executing a
search warrant. To avoid the loss of important evidence, investigating
officers may want to take extra precautions, such as conducting no-knock
searches. Evidentiary
Issues Proving a criminal case in court that
involves computer records creates certain evidentiary challenges.
For instance, in order to use computer records as evidence in court, the
government must establish that they are "authentic" or are
what they appear to be, and authentication of computer records can be
difficult. Computer records can be changed easily, and defendants
sometimes claim that records were altered after they were created.
Computer errors can result in mistakes in the data as well. Also, the
identity of the author of the records can be difficult to establish.
Unlike handwritten material, computer records do not have a distinctive
style, and so other evidence must be used to establish authorship. Endnotes These reports can be found at usdoj.gov/criminal/cybercrime/bombmakinginfo.html and cybercrime.gov/searchmanual.htm |