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.⁴⁴

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.