Discussion Questions Week#2-Week#3

INSTRUCTIONS:THERE ARE A TOTAL OF TWO DISCUSSION QUESTIONS BELOW.Please answer each Discussion question on a separate page and also cite all references in APA. Some discussion questions have multiple questions within one, but be sure to answer the entire discussion question on one page. Place a separate reference page for each discussion question answered. Please make all work is original. All sources need to be cited. I can’t afford to get my paper flagged for academic violations. Use 2-4 References for each question. Please use academic and peer-reviewed research articles and also make sure each question is answered in at least one full page of content. PLEASE MAKE SURE TO ANSWER WACH QUESTION ON A SEPARATE PAGE. I WILL BE UPLOADED REFERENCE MATERIAL TO HELP ANSWER THESE QUESTIONS. PLEASE ALSO REFERNCE THE DOJ MANUAL WHEN ANSWERING ALL OF THESE QUESTIONS BELOW. THE DOJ MANUAL INFORMATION IS: Department of Justice Manual “(DOJ Manual” – Searching and Seizing Computers (2009). ONE ENTIRE DISCUSSION QUESTION ANSWERED PER PAGE. BE SURE TO USE DIFFERENT REFERENCES FOR EACH QUESTION AND PUT THEM ON SEPARATE PAGES. DISCUSSION QUESTIONS ARE BELOW:Discussion Question# 1Should Congress amend the Computer Fraud and Abuse Act (18 U.S.C. 1030 (c) to provide for a statutory suppression remedy as Ms. Shah proposes?PLEASE REFERENCE THIS MATERIAL (ALSO ADD ADDITIONAL REFERENCE MATERIAL TO ANSWER THE QUESTION): DOJ Manual – Searching and Seizing Computers (2009) PP61-65. 71-76 and Appendix F;U.S. v. Jarrett, 338 F.3d 339 (4th Cir. 2003)Monica R. Shah, The Case For A Statutory Suppression Remedy To Regulate Illegal Private Party Searches in Cyberspace, 105 Colum. L. Rev. 250 (2005) (read sections II and III) Discussion Question# 2Should the “Border Search” Exception to Warrant Requirement Apply to “Computer Searches”?Do you agree with the Cotterman decision? Did it go too far? Did it go far enough? Given the intrusive nature of these Border searches, should the court have required the higher standard needed for search warrants? (Probable Cause)PLEASE REFERENCE: THE DOJ MANUAL – SEARCHING AND SEIZING COMPUTERS (2009), AND ALSO, I HAVE UPLOADED THE OTHER REFERENCE MATERIAL TO THIS ORDER, SUCH AS THE POWERPOINT THAT IS MENTIONED BELOW IN THE QUESTIONS. ALSO PLEASE USE ADDITIONAL REFERENCE MATERIAL AS WELL TO ANSWER THE QUESTIONS (Sources- Week 3) and Week 3 Slides, Slides 28-31). For years the Government has been conducting warrant less searches (not even “articulable suspicion”) of laptops and other computer devices at international borders. In the Cotterman case in 2013 the 9th Circuit said that if the Government wants to use search software, like FTK or En Case, to search computers agents have seized at the borders, the agents will have to articulate their (reasonable) basis for that search. (Routine “manual ” searches still do not require “reasonable suspicion.”)The instructor provided some reference material below:Background – Legal Standards Applicable to Forensic Searches of Computers at US BordersThere are three evidentiary standards that are relevant to the issue of whether a “forensic search” of a computer device at the nation’s borders was “reasonable” under the 4th Amendment. Courts are split on which one the 4th Amendment requires. This area of the law is “unsettled” – to say the least. If Congress does not act , this is an issue the U. S. Supreme Court will have to resolve. (The cases, “directives” and proposed legislation set out below are all loaded in “Sources -3.”)• Agent’s Discretion – Up until the 9th Circuit decided Cotterman in 2013, the law authorized lawyers and commentators have described as “suspicion less” searches of computer devices at our borders. That is, as long as the agent personally believed that it was reasonable to search the device using software like FTK, or EnCase, the agent was not legally obligated to be able to articulate an objectively reasonable basis for his subjective belief that he should conduct the search. In other words, there was a “subjective” standard.A three-judge panel of the 11th Circuit (Georgia, Florida, Alabama) held in May 2018 that subjectively reasonable/ “suspicion less” forensic searches of computer devices (e.g. cell phones) at the border were still lawful in the 11th Circuit. US v. Touset, 890 F. 3d 1227 (11th Cir. May 23, 2018 (“We see no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property. 890 F3d 1233) – (Sources 3)• Reasonable Suspicion – As you know, the 9th Circuit decided in 2013, that border agents in the 9th circuit may not conduct a forensic search of a traveler’s computer/ electronic device unless s/he as “reasonable suspicion.” The 9th Circuit said that “reasonable suspicion” has been defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cotterman, 759 F3d 952, 968 The majority found that the agents did have “reasonable suspicion” when they conducted the “forensic search” of Mr. Cotterman’s computer. They set out the facts they relied on in their decision. 709 F3d 968-69Customs and Border Protection (CBP) Adopts ‘Reasonable Suspicion” – On January 4, 2018, CPB published Directive (3340-049A) says that CBP agents must have “reasonable suspicion” before they conduct an “advanced”/ “forensic” search of electronic devices seized at the border. Section 5.1.4 (Sources 3)On May 9, 2018, the 4th Circuit Court of Appeals (Maryland, North Carolina, South Carolina, Virginia, West Virginia) agreed with Cotterman that “reasonable suspicion” was required before agents can conduct a forensic search of computer devices at our borders. The Court declined to go further and decide whether a search warrant was required. US v. Kolsuz, 890 F3d 133, 141 (4thCir. 2018)• Search Warrants – As you know, law enforcement must have “probable cause” before a judge will issue a search warrant. “Probable cause” is a higher standard than “reasonable suspicion.” The Supreme Court gave a more detailed definition in Brinegar v. US: Probable cause “exists where the facts and circumstances within (the officers’) knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. “Brinegar v. US, 338 US 160, 175-76 (1949)On May 9. 2018, a Federal District Judge in Massachusetts, denied a Government Motion to Dismiss, finding that it was “plausible” that the 4th Amendment required a search warrant, backed by an affidavit of probable cause before agent conducted a forensic search of computer devices at the border. Alasaad v. Nielsen (Sources 3)

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