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Case [4]
DPrivHastings Sample Student Answers
[October 28, 2010]
SFODMS/6610656.1 1
Case 4 – According to U.S. law, were the installation of the Trojan horse and the replication of the
complete hard disk lawful?
• Jurisdiction o Issue: Can the police investigate and try and obtain evidence from C. Racker’s
computer?
o Rule: The police can, pursuant to a search warrant, try and obtain specific evidence when a crime has been committed.
o Analysis: In this case, free dispersal of newly released movies is a copyright violation,
and is theft. The police can try and obtain evidence from C. Racker’s computer if they suspect him of the theft.
o Conclusion: The police can try and obtain evidence from C. Racker’s computer
• Substantive Law o Fourth Amendment
Issue: Does the insertion of a Trojan Horse into C. Racker’s computer fall within
a search as defined by the Fourth Amendment? Rule: A search falls within the protection of the Fourth Amendment so long as
the defendant either had a reasonable expectation of privacy and society is
willing to allow that expectation to be considered reasonable Analysis: In this case, the Trojan Horse application falls within the Fourth
Amendment’s definition of a search. By encrypting his computer, C. Racker was
obviously trying to keep what was on his computer private. Also, in this day and age a significant number of people own a personal computer; their bank account information, bills, we surfing history, personal documents, are all stored
on their personal machine. The machine itself is usually stored within the home, a constitutionally protected area under the Fourth Amendment. The insertion of the Trojan Horse onto C. Racker’s computer is definitely within the
Fourth Amendment definition of a search. Conclusion: The insertion of the Trojan Horse onto C. Racker’s computer is a
search within the Fourth Amendment definition.
o Fourth Amendment – Search Warrant Issue: Is the Trojan Horse application a valid method of executing a search
warrant within the scope of the Fourth Amendment? Rule: A valid search warrant must list with peculiarity what the police hope to
find in their search, and also when the search is terminated.
Analysis: While the police did obtain a search warrant to place the Trojan Horse on C. Racker’s computer, the application of the warrant did not satisfy the requirements of the Fourth Amendment. The warrant must state with
peculiarity what exactly the police are searching for, and cannot be open-‐ended.
Case [4]
DPrivHastings Sample Student Answers
[October 28, 2010]
SFODMS/6610656.1 2
The Trojan Horse was an application placed on the defendant’s computer
indefinitely; and every time the computer is turned on the program sent a copy of the hard drive to the police. The police therefore had access to EVERYTHING on the defendant’s computer, and got an updated copy everytime the computer
was turned on. This open-‐ended application violates the Fourth Amendment. Conclusion: The application of the Trojan Horse violates the Fourth Amendment.
o 18 USC §2705 – Delayed Notice
Issue: Does the lack of notice satisfy the 18 USC §2705, and is therefore valid, or is it a violation of the Fourth Amendment?
Rule: 18 USC §2705 applies to electronic communications stored at a 3rd party
locations. Analysis: The statute listed above does not apply to the specific information
stored on a personal computer that is not also stored at a 3rd party location. In
Mapp v. Ohio, the police refused to turn over the search warrant while searching the defendant’s house. The court held this was a violation of the Fourth Amendment; when the police enter a residence they must present the
search warrant to the residents of the house. In this case, while the police themselves did not physically invade the defendant’s house, the Trojan Horse application did physically invade C. Racker’s computer, which is an intrusion into
C. Racker’s home since the computer resides in his home. Based on Mapp, a court would likely find the lack of notice a violation of the Fourth Amendment.
Conclusion: The Fourth Amendment was likely violated by the lack of notice.
Case 4 – According to German law, were the installation of the Trojan horse and the replication of the
complete hard disk lawful?
• Jurisdiction o Issue: Can the German Police investigate C. Racker’s computer in order to find evidence
of theft?
o Rule: Objects which may be of importance as evidence for the investigation shall be impounded or otherwise secured.
o Analysis: In this case, C. Racker’s computer may contain the original data stolen from
movie studios. The police require this evidence to prosecute him for theft of the studios’ movies.
o Conclusion: Yes, police do have the authority to seize C. Racker’s computer since it may contain evidence of a crime.
• Substantive
o German Constitution – Article 2
Case [4]
DPrivHastings Sample Student Answers
[October 28, 2010]
SFODMS/6610656.1 3
Issue: Does the Trojan Horse application violate Article 2 of the German
Constitution: the right to Personal Freedom and Development? Rule: Every person has the right to freely develop his personality so long as it
does not violate the rights of another.
Analysis: These days a computer is not only fairly common in everyday usage, but the primary way people investigate areas they are interested in. Not only that, the computer is also where things of paramount interest are stored. The
information on a computer is directly tied to a person’s developing personality. In this case, the Trojan Horse application merely informs the police what is being stored on C. Racker’s computer. Therefore, the police may argue they are
not infringing on C. Racker’s right to free development; they are merely watching how he is developing his personality. However, by watching what C. Racker is doing, they are infringing on his free personality development; if C.
Racker starts developing in an area that the police consider illegal the police can stop C. Racker from continuing down that path. However, the German Constitution specifically states a person is only allowed free development so
long as it does not impinge on another’s right. In this case, if the police do find the original movie data, C. Racker has officially impinged on the movie studio’s copyright. Therefore, the Trojan Horse application, as it pertains to this specific
piece of evidence, does not violate the German Constitution. Conclusion: The Trojan Horse application, as it pertains to the original movie
data, does not violate the German Constitution.
o German Constitution – Article 10 Issue: Does the Trojan Horse Application violate Article 10 of the German
Constitution: the Privacy of Correspondence and Telecommunications?
Rule: The privacy of correspondence, posts and telecommunications shall be inviolable.
Analysis: While the Trojan Horse Application is being used to determine
whether the original movie studio data is on C. Racker’s computer; by taking an image of his hard drive, the Trojan Horse is also exposing C. Racker’s private
email communication, without a definite need to do so. Conclusion: The Trojan Horse application violates Article 10 of the German
Constitution.
o German Code of Criminal Procedure Issue: Does the implanting of the Trojan Horse violate the German Code of
Criminal Procedure’s Order of Seizure?
Rule: The order of Seizure allows seizure of items pertinent to an investigation with a judicial order.
Case [4]
DPrivHastings Sample Student Answers
[October 28, 2010]
SFODMS/6610656.1 4
Analysis: In this case, the German Police would have gotten a judicial order in
regards to the Trojan Horse application. The German police are “seizing” the data on the computer in order to determine if the original movie data is on C. Racker’s computer. According to Article 10 of the German Constitution, notice
is not constitutionally necessary; the Code of Criminal Procedure only discusses notice in regard to a search conducted without a judicial order. Therefore, the police would most likely be following the German Code of Criminal Procedure
with the Trojan Horse Application Conclusion: The Trojan Horse Application satisfies the requirement of the
German Code of Criminal Procedure’s Order of Seizure.
Case [4]
DPrivHastings Sample Student Answers
[October 28, 2010]
SFODMS/6610656.1 5
Was the use of the Trojan Horse lawful?
Was the use of the Trojan Horse lawful under United States law? Does the transmission of hard drive images constitute a “search” under the Fourth Amendment? A search falls within the protections of the Fourth Amendment when government action intrudes into an area where a person has a reasonable and justifiable expectation of privacy.
Here, government agents used a Trojan Horse virus to allow them to capture copies of the suspect’s hard drive. The question of whether or not this was an unreasonable search under the fourth amendment hinges on (1) whether the suspect had a subjective expectation of privacy regarding his computer’s hard drive and (2) whether that expectation is reasonable and justifiable
Did the suspect have a subjective expectation of privacy?
A search requires an intrusion into an area where a person has a subjective expectation of privacy. Absent a determination of the suspect’s subjective expectation of privacy, there can be no finding of a government intrusion into the “private sphere.” Here, the suspect used pseudonym and complex encryption to protect his data. The state may argue that such intensive efforts to protect privacy are evidence the suspect knew his data was insecure and therefore had no subjective expectation of privacy. The suspect, however, will argue that the very fact that he went to such great lengths to secure his privacy proves that he expected his privacy to be secure. Because he went to such great lengths, the court will likely find he did hold an expectation that this encrypted data would remain private.
Was the suspect’s expectation reasonable and justifiable?
An individual’s expectation of privacy must be reasonable and justifiable. Here, the data in question was stored locally, on the individual’s own private computer (in addition to the facts mentioned above that demonstrate the length to which the suspect went to secure his data’s privacy online). Additionally, the government’s means of obtaining the data involved a clandestine, “specifically designed program.” The very fact that the government required such specialized technology demonstrates that the suspect’s data was otherwise quite secure, and that without this specifically designed program, his data would be otherwise have been inaccessible. This supports a finding that the suspect’s expectation of privacy was both reasonable and justifiable, because it is neither reasonable nor justifiable for the suspect to base his expectation of privacy on the government’s potential to create and use special technology. This would render the substantive value of a suspect’s right to privacy dependent upon knowledge that he likely has no access to.
Was the search warrant valid?
When a search warrant is issued it must be (1) based on probable cause; (2) be supported by oath or
affirmation; (3) specifically describe what is to be searched and seized; and, (4) be issued by a neutral magistrate. Here, no facts were given regarding the warrant other than the fact that one was issued.
Assuming police had probable cause to believe Racker’s hard drive contained evidence of a crime, that they provided the requisite oath or affirmation, and that they went through the proper channels, the search warrant is likely valid. Subject to the rules described above, evidence seized subject to a valid search warrant does not violate the 4th Amendment; therefore, pursuant to this analysis, we find the police’s use of the Trojan horse in this case was lawful under US law.
Case [4]
DPrivHastings Sample Student Answers
[October 28, 2010]
SFODMS/6610656.1 6
Was the use of the Trojan Horse lawful under German Basic Law? Does the use of the Trojan Horse by police violate Article 13 of German basic law? German law states the home is inviolable, absent a valid court order. Here, the police used a false e-‐mail and specialized program to gain access to otherwise private files stored on Racker's personal computer. Racker will argue that such a intrusion into his personal computer is akin to an invasion of his home and therefore is invalid under Article 13. The state, alternatively, will argue that such remote monitoring cannot be compared to a physical invasion, since there was no “physical” entry into his home at all, merely an electronic entry into his computer.
Does the use of the Trojan Horse by police violate Article 10 of German basic law? Article 10 of German basic law states "posts, electronic communications, and correspondence are inviolable," absent a valid court order. Here, police used a Trojan Horse to capture images of Racker's entire hard drive at regular intervals. Because the hard drive almost certainly contained electronic communications and correspondence, such a search would be invalid without a proper court order.
Effect of the Search Warrant? A search warrant is evidence the described police action was found lawful under judicial review. The
state will argue that even if the government’s action may otherwise constituted an “invasion of the home” in violation of Article 13, or an intrusion into Racker’s “posts, electronic communications, *or+ correspondence,” they were lawful under the color of a valid search order.