Network Investigation Techniques: Government Hacking and the Need for Adjustment in the Third-Party Doctrine
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St. Mary's Law Journal Volume 49 Number 1 Article 3 1-1-2017 Network Investigation Techniques: Government Hacking and the Need for Adjustment in the Third-Party Doctrine Eduardo R. Mendoza St. Mary's University School of Law Follow this and additional works at: https://commons.stmarytx.edu/thestmaryslawjournal Part of the Civil Procedure Commons, Computer Law Commons, Constitutional Law Commons, Criminal Procedure Commons, Evidence Commons, Fourth Amendment Commons, Law and Society Commons, and the Legal Remedies Commons 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 This Article is brought to you for free and open access by the St. Mary's Law Journals at Digital Commons at St. Mary's University. It has been accepted for inclusion in St. Mary's Law Journal by an authorized editor of Digital Commons at St. Mary's University. For more information, please contact [email protected]. Mendoza: Network Investigation Techniques COMMENT NETWORK INVESTIGATION TECHNIQUES: GOVERNMENT HACKING AND THE NEED FOR ADJUSTMENT IN THE THIRD-PARTY DOCTRINE EDUARDO R. MENDOZA* I. Introduction ................................ ..... 238 II. Government Hacking-Network Investigation Techniques.........240 III. A Brief Overview of the Fourth Amendment..................................241 A. The Property Approach .......................... 241 B. The Reasonable Expectation of Privacy........... ........... 243 IV. The Onion Router and the Anonymous IP Address .... ..... 243 A. The IP Address ........................... ..... 243 B. The Onion Router . ........................ ...... 245 V. The Western District of Texas ................... ..... 246 A. The IP Address Is of No Import? .............. ..... 246 B. Content v. Non-Content............ ................. 249 C. Dodging the Third-Party Doctrine ............ ...... 253 VI. The Third-Party Doctrine in a Digital Age................254 A. The Onion Router: Enough to Alter the Third-Party Doctrine?......................................256 B. New York v. Class .................. ............. 257 C. Oliver v. United States ............................. 258 *This Comment is dedicated to the author's loving grandparents, Alicia "Licha" Mendoza (1935- 2017) and Esteban Mendoza (1933-2017). The two met in the sixth grade and were married for 64 years before passing just eight months apart from each other. May they Rest in Peace. 237 Published by Digital Commons at St. Mary's University, 2018 1 St. Mary's Law Journal, Vol. 49 [2018], No. 1, Art. 3 238 ST. MARY'S LAW JOURNAL [Vol. 49:237 D. United States v. Werdene. ........................... 258 VII. The Third-Party Doctrine Is Ill-Suited for a Digital Age ............... 260 A. A Proposal.................................. ..... 264 VIII. Conclusion ............................................... 266 I. INTRODUCTION Our world has evolved. Modem society is largely dependent on technology, wireless devices, and the never-ending appetite for scientific development. Legal discovery is no longer limited to hard-copy, tangible documents.' Property interests are no longer exclusive to personal and real property.2 The First Amendment no longer limits its protection to solely written or spoken words.' Our world has evolved, and the law has adjusted accordingly. What remains constant is the yearning for truth. The clash of technology and the law is an exciting, yet dangerous phenomena. It is dangerous because society needs a justice system that seeks truth, yet desperately needs technological progress. What results when our thirst for truth conflicts with the scientific changes for which we so franticly ask? The answer has typically been adjustment.' 1. See, e.g., Brandon M. Kimura & Eric K. Yamamoto, Electronic Discovery: A Callfor a New Rules Regimefor the Hawai'i Courts, 32 U. HAw. L. REV. 153, 155 (2009) (presenting the arrival of electronic discovery as a "technology revolution" transforming modem discovery). 2. Cf Bd. of Trs. v. Roche Molecular Sys., Inc., 563 U.S. 776, 785 (2011) (recognizing the notion that "[a]lthough much [of] intellectual property law has changed in the 220 years since the first Patent Act," the premise that "inventors have [a] right to patent their inventions has not"). 3. See, e.g., Texas v. Johnson, 491 U.S. 397, 397 (1989) (finding the burning of the American flag to be "expressive conduct within protection of [the] First Amendment"). 4. See Kyllo v. United States, 533 U.S. 27, 35 (2001) (rejecting a "mechanical interpretation of the Fourth Amendment" in the face of "advancing technology"); United States v. Davis, 785 F.3d 498, 537 (11th Cir. 2015) (Martin, J., dissenting) (recognizing a "slippery slope ... would result from a wooden application of the third-party doctrine[,]" and further identifying such as an explanation for the insistence of the Supreme Court "that technological change sometimes requires us to consider the scope of decades-old Fourth Amendment rules" (citing Kyllo, 533 U.S. at 35)); cf Katz v. United States, 389 U.S. 347, 352 (1967) ("To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication."). Another example is the case Riley v. Cakfornia, 134 S. Ct. 2473 (2014). There, the Court was asked to decide whether the decades-old "search-incident-to-arrest" exception to the warrant requirement applied to cell phones on an arrestee's person. Riley v. California, 134 S. Ct. 2473, 2481 (2014) ("Mhe Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee's person." (citing California v. Diaz, 244 P.3d 501, 505-06 (2011)); see also https://commons.stmarytx.edu/thestmaryslawjournal/vol49/iss1/3 2 Mendoza: Network Investigation Techniques 2017] COMMENT 239 The Fourth Amendment's protection 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 at all.' Indeed, "we must never forget that it is a constitution we are expounding."' As the late Justice Scalia noted, "[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment [would be] entirely unaffected by the advance of technology." 8 Accordingly, this Comment aims to signal a need for an adjustment in the Fourth Amendment's third-party doctrine, while also analyzing government hacking in relation to the Fourth Amendment. Section I will provide an overview of government hacking. Section II will provide a brief history of the Fourth Amendment. Section III will discuss software used to conceal an IP address and Fourth Amendment implications. Section IV will analyze the Western District of Texas's approach to IP address concealing software. Section V will examine the third-party doctrine. Section VI will demonstrate the need for Supreme Court guidance on the third-party doctrine in a digital age. Section VI will also propose a small framework for courts to follow until the Supreme Court re-visits the third-party doctrine. The Comment concludes with final thoughts in Section VII. This Comment will not examine Rule 41(b)' and its forthcoming amendment.1 0 The proposed amendment is limited in scope and will not id. at 2495-96 (Alito, J., concurring in part and concurring in the judgement) (discussing the origins of the search-incident-to-arrest rule and how it relates to cell phones and personal privacy with modern technology). California argued the Court's decade-old law controlled the decision. See id. at 2485 (majority opinion) (suggesting, without deciding, "that a search of cell phone data might help ensure officer safety" but the parties failed to "suggest that their concerns [were] based on actual experience"). But the Riley Court reasoned that cell "phones are based on technology nearly inconceivable just a few decades ago, when [the law was] decided." Id. at 2484. Accordingly, Fourth Amendment analysis has typically adjusted as technology advances over time. 5. See KaI5, 389 U.S. at 360 (Harlan, J., concurring) ("[A] person has a constitutionally protected reasonable expectation of privacy[.]"). 6. See Orin S. Kerr, The Fourth Amendment and New Technologies: ConstitutionalMyths and the Casefor Caution, 102 MICH. L. REv. 801, 805 (2004) (arguing the Fourth Amendment requires consistent monitoring of technology's effects on privacy). 7. See M'Culloch v. Maryland, 17 U.S. 316, 407 (1819) (explaining how the text of the Constitution does not include every possible interpretation as, for example, a statute would). 8. Kylo, 533 U.S. at 33-34. 9. FED. R. CRIM. P. 41(b) (discussing search and seizure procedure). 10. See ADVISORY COMM. ON CRIMINAL RULES, REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL RULES 67-71 (2016) (proposing an amendment to Rule 41(b)). Published by Digital Commons at St. Mary's University, 2018 3 St. Mary's Law Journal, Vol. 49 [2018], No. 1, Art. 3 240 ST. MARY'S LAW JOURNAL [Vol. 49:237 address constitutional questions. 1 Constitutional standards will be left to "ongoing case law development." 1 2 Instead, this Comment will analyze the Fourth Amendment as it applies to government hacking, a user's expectation of privacy while browsing with concealing software, the varying rationales