Forensics is the use of
scientific or technical information to answer questions in a court of
law. Digital forensics is the branch that focuses on the identification,
acquisition and analysis of information found on digital devices:
computers, cell phones, digital cameras or any computer-based system.
The concept of law
enforcement posting photos of wanted individuals in a public place and
asking for assistance is hardly new; walk into any post office and you
will still see the FBI Most Wanted poster. Why the post office? Because
it used to be the social center of a town, a place where the government
and the people regularly came together.
Gary Kessler
Fast forward to 2013 and
we have thousands of people taking pictures and videos of what everyone
expected to be an every day event. Law enforcement agencies were able to
use these images to observe the comings and goings of hundreds of
people at a certain site at a certain time in order to detect a pattern
of behavior with which to identify the two suspects. And most of this
imagery came from private citizens.
Personal computers have
been around for nearly 30 years. The Internet has been commercially
available for 20 years. Mobile phones have been pervasive for more than
10 years and smartphones, in particular, for more than five. Computers,
networks and cell phones have increasingly become the record keeper,
instrument or target of criminal activity over the last few decades.
Smartphones are
everywhere and offer the equivalent of a portable Internet terminal. Not
only do cell phones contain a phone book, call history and text
messages, but also Web browser history, email, Global Positioning System
and other location information. And surprisingly high-quality pictures
and video.
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All of this information
will be of value to investigators. They will want to know who the
suspects might have been communicating with in the immediate aftermath
of the bombings and, again, in the aftermath of their pictures being
posted in the media. The larger investigation will undoubtedly examine
their text and email messages, social media postings, Web sites visited
and calls made over the last few months and years. This digital forensic
evidence will help piece together patterns of behavior that could
provide insights into the suspects' thoughts and deeds, and even provide
new leads.
What does this mean for
privacy rights? Consider that when a municipality wants to put up a new
camera at an intersection, or purchase a drone, there is often a public
outcry. Is the camera an invasion of privacy? Where will it be looking?
How will the government use the data? How long will the data be kept?
Will it be used to track my movements? At some level, these are good and
important questions because this kind of discourse is necessary to
frame our Fourth Amendment protections against unreasonable searches.
Yet, in Boston, a lot of
the images came not from public-sector cameras but from private-sector
cameras: our fellow citizens. Fellow citizens who voluntarily shared
their information so that law enforcement could do its job.
Were these people
violating the rights of others by sharing their pictures? Well, no,
considering that the Bill of Rights was intended to protect us against a
tyrannical government rather than from each other. Indeed, it is not
clear that the government could have compelled these citizens to turn
over their pictures just in case they might be useful; imagine
persuading a judge to sign a search warrant on such pure speculation.
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Yet, citizens stepped
forward to offer their help, a clear sign of a community willing to work
together for a greater good and one that does not distrust the
government.
Although some might
claim that these people were surrendering their rights for an element of
security, it was the same instinct that made some people run toward the
carnage so that they could provide assistance and comfort to friends,
family and strangers. They were not surrendering their rights when they
helped law enforcement but were empowering themselves as a community.
The U.S. Constitution
does not explicitly offer citizens a right of privacy, although many
court decisions certainly support such an ideal. Indeed, U.S. Supreme
Court Justice Louis D. Brandeis is well known for his observation, "The
right to be left alone -- the most comprehensive of rights, and the
right most valued by a free people."
Your personal privacy
has more to fear from the likes of Facebook and Google than from the
government. Commercial entities such as social media sites offer free
services and yet make money. How?
We, our information,
have become their commodity. They have more money, motivation and
resources to use our collected information for their own purposes than
the government does. We, as users of social media, self-exploit; we post
our information voluntarily. Yet, once posted, we usually lose
exclusive ownership of the information and always lose control over it.
Although the use of the
crowdsourcing metaphor may be new as it applies to a criminal
investigation, it is almost certain we will see more of this in the
future. And it is sure to renew questions about how we all are invading
each other's privacy and personal space.
It also points to the
incredible resiliency of the U.S. Constitution and its ability to guide
us in a modern era, yet why it needs constant interpretation. As
technologies evolve that the Founders could not have possibly
anticipated -- from fully automatic weapons and thermal imagers to
satellites and digital technologies -- we have to figure out how to
balance our rights as individuals and needs as a society.
