Legal Studies Commons^™

Can Americans Resist Surveillance?, Ryan Calo

Articles

This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …

Identification And Exploitation Of Inadvertent Spectral Artifacts In Digital Audio, N. C. Donnangelo, W. S. Kuklinski, R. Szabo, R. A. Coury, G. R. Hamshar

Journal of Digital Forensics, Security and Law

We show that modulation products from local oscillators in a variety of commercial camcorders are coupled into the recorded audio track, creating narrow band time invariant spectral features. These spectral features, left largely intact by transcoding, compression and other forms of audiovisual post processing, can encode characteristics of specific camcorders used to capture the audio files, including the make and model. Using data sets both downloaded from YouTube and collected under controlled laboratory conditions we demonstrate an average probability of detection (Pd) approaching 0.95 for identification of a specific camcorder in a population of thousands of similar recordings, with a …

Computer Forensic Projects For Accountants, Grover S. Kearns

Journal of Digital Forensics, Security and Law

Digital attacks on organizations are becoming more common and more sophisticated. Firms are interested in providing data security and having an effective means to respond to attacks. Accountants possess important investigative and analytical skills that serve to uncover fraud in forensic investigations. Some accounting students take courses in forensic accounting but few colleges offer a course in computer forensics for accountants. Educators wishing to develop such a course may find developing the curriculum daunting. A major element of such a course is the use of forensic software. This paper argues the importance of computer forensics to accounting students and offers …

Data Loss Prevention Management And Control: Inside Activity Incident Monitoring, Identification, And Tracking In Healthcare Enterprise Environments, Manghui Tu, Kimberly Spoa-Harty, Liangliang Xiao

Journal of Digital Forensics, Security and Law

As healthcare data are pushed online, consumers have raised big concerns on the breach of their personal information. Law and regulations have placed businesses and public organizations under obligations to take actions to prevent data breach. Among various threats, insider threats have been identified to be a major threat on data loss. Thus, effective mechanisms to control insider threats on data loss are urgently needed. The objective of this research is to address data loss prevention challenges in healthcare enterprise environment. First, a novel approach is provided to model internal threat, specifically inside activities. With inside activities modeling, data …

Rules Of Professional Responsibility In Digital Forensics: A Comparative Analysis, Filipo Sharevski

Journal of Digital Forensics, Security and Law

The consolidation of the rules of professional responsibility as recommended by the Committee on Identifying the Needs of Forensic Sciences Community (2009) accents the establishment of an uniform code of ethics emphasizing the importance of enforceability in strengthening the role the forensic science plays within the criminal justice system. Equally pertinent for the domain of digital forensics, this imperative entails a research commitment in comparing and contrasting the respective codes of ethics to illustrate their “variety, specificity and enforceability” in order to inform the discussion on the regulative aspects of the digital forensic discipline. Accordingly, this paper reviews the professional …

On The Network Performance Of Digital Evidence Acquisition Of Small Scale Devices Over Public Networks, Irvin Homem, Spyridon Dosis

Journal of Digital Forensics, Security and Law

While cybercrime proliferates – becoming more complex and surreptitious on the Internet – the tools and techniques used in performing digital investigations are still largely lagging behind, effectively slowing down law enforcement agencies at large. Real-time remote acquisition of digital evidence over the Internet is still an elusive ideal in the combat against cybercrime. In this paper we briefly describe the architecture of a comprehensive proactive digital investigation system that is termed as the Live Evidence Information Aggregator (LEIA). This system aims at collecting digital evidence from potentially any device in real time over the Internet. Particular focus is made …

The "Bring Your Own Device" Conundrum For Organizations And Investigators: An Examination Of The Policy And Legal Concerns In Light Of Investigatory Challenges, Carla J. Utter, Alan Rea

Journal of Digital Forensics, Security and Law

In recent years, with the expansion of technology and the desire to downsize costs within the corporate culture, the technology trend has steered towards the integration of personally owned mobile devices (i.e. smartphones) within the corporate and enterprise environment. The movement, known as “Bring Your Own Device” (hereinafter referred to as “BYOD”), seeks to minimize or eliminate the need for two separate and distinct mobile devices for one employee. While taken at face value this trend seems favorable, the corporate policy and legal implications of the implementation of BYOD are further complicated by significant investigatory issues that far outweigh the …

Plc Forensics Based On Control Program Logic Change Detection, Ken Yau, Kam-Pui Chow

Journal of Digital Forensics, Security and Law

Supervisory Control and Data Acquisition (SCADA) system is an industrial control automated system. It is built with multiple Programmable Logic Controllers (PLCs). PLC is a special form of microprocessor-based controller with proprietary operating system. Due to the unique architecture of PLC, traditional digital forensic tools are difficult to be applied. In this paper, we propose a program called Control Program Logic Change Detector (CPLCD), it works with a set of Detection Rules (DRs) to detect and record undesired incidents on interfering normal operations of PLC. In order to prove the feasibility of our solution, we set up two experiments for …

Factors Influencing Digital Forensic Investigations: Empirical Evaluation Of 12 Years Of Dubai Police Cases, Ibtesam Alawadhi, Janet C. Read, Andrew Marrington, Virginia N. L. Franqueira

Journal of Digital Forensics, Security and Law

In Digital Forensics, the number of person-hours spent on investigation is a key factor which needs to be kept to a minimum whilst also paying close attention to the authenticity of the evidence. The literature describes challenges behind increasing person-hours and identifies several factors which contribute to this phenomenon. This paper reviews these factors and demonstrates that they do not wholly account for increases in investigation time. Using real case records from the Dubai Police, an extensive study explains the contribution of other factors to the increase in person-hours. We conclude this work by emphasizing on several factors affecting the …

Cyber Black Box/Event Data Recorder: Legal And Ethical Perspectives And Challenges With Digital Forensics, Michael Losavio, Pavel Pastukov, Svetlana Polyakova

Journal of Digital Forensics, Security and Law

With ubiquitous computing and the growth of the Internet of Things, there is vast expansion in the deployment and use of event data recording systems in a variety of environments. From the ships’ logs of antiquity through the evolution of personal devices for recording personal and environmental activities, these devices offer rich forensic and evidentiary opportunities that smash against rights of privacy and personality. The technical configurations of these devices provide for greater scope of sensing, interconnection options for local, near, and cloud storage of data, and the possibility of powerful analytics. This creates the unique situation of near-total data …

Two Challenges Of Stealthy Hypervisors Detection: Time Cheating And Data Fluctuations, Igor Korkin

Journal of Digital Forensics, Security and Law

Hardware virtualization technologies play a significant role in cyber security. On the one hand these technologies enhance security levels, by designing a trusted operating system. On the other hand these technologies can be taken up into modern malware which is rather hard to detect. None of the existing methods is able to efficiently detect a hypervisor in the face of countermeasures such as time cheating, temporary self uninstalling, memory hiding etc. New hypervisor detection methods which will be described in this paper can detect a hypervisor under these countermeasures and even count several nested ones. These novel approaches rely on …

Data Extraction On Mtk-Based Android Mobile Phone Forensics, Joe Kong

Journal of Digital Forensics, Security and Law

In conducting criminal investigations it is quite common that forensic examiners need to recover evidentiary data from smartphones used by offenders. However, examiners encountered difficulties in acquiring complete memory dump from MTK Android phones, a popular brand of smartphones, due to a lack of technical knowledge on the phone architecture and that system manuals are not always available. This research will perform tests to capture data from MTK Android phone by applying selected forensic tools and compare their effectiveness by analyzing the extracted results. It is anticipated that a generic extraction tool, once identified, can be used on different brands …

Exploring The Use Of Plc Debugging Tools For Digital Forensic Investigations On Scada Systems, Tina Wu, Jason R.C. Nurse

Journal of Digital Forensics, Security and Law

The Stuxnet malware attack has provided strong evidence for the development of a forensic capability to aid in thorough post-incident investigations. Current live forensic tools are typically used to acquire and examine memory from computers running either Windows or Unix. This makes them incompatible with embedded devices found on SCADA systems that have their own bespoke operating system. Currently, only a limited number of forensics tools have been developed for SCADA systems, with no development of tools to acquire the program code from PLCs. In this paper, we explore this problem with two main hypotheses in mind. Our first hypothesis …

Forensic Acquisition Of Imvu: A Case Study, Robert Van Voorst, M-Tahar Kechadi, Nhien-An Le-Khac

Journal of Digital Forensics, Security and Law

There are many applications available for personal computers and mobile devices that facilitate users in meeting potential partners. There is, however, a risk associated with the level of anonymity on using instant message applications, because there exists the potential for predators to attract and lure vulnerable users. Today Instant Messaging within a Virtual Universe (IMVU) combines custom avatars, chat or instant message (IM), community, content creation, commerce, and anonymity. IMVU is also being exploited by criminals to commit a wide variety of offenses. However, there are very few researches on digital forensic acquisition of IMVU applications. In this paper, we …

Tracking And Taxonomy Of Cyberlocker Link Sharers Based On Behavior Analysis, Xiao-Xi Fan, Kam-Pui Chow

Journal of Digital Forensics, Security and Law

The growing popularity of cyberlocker service has led to significant impact on the Internet that it is considered as one of the biggest contributors to the global Internet traffic estimated to be illegally traded content. Due to the anonymity property of cyberlocker, it is difficult for investigators to track user identity directly on cyberlocker site. In order to find the potential relationships between cyberlocker users, we propose a framework to collect cyberlocker related data from public forums where cyberlocker users usually distribute cyberlocker links for others to download and identity information can be gathered easily. Different kinds of sharing behaviors …

A Survey Of Botnet Detection Techniques By Command And Control Infrastructure, Thomas S. Hyslip, Jason M. Pittman

Journal of Digital Forensics, Security and Law

Botnets have evolved to become one of the most serious threats to the Internet and there is substantial research on both botnets and botnet detection techniques. This survey reviewed the history of botnets and botnet detection techniques. The survey showed traditional botnet detection techniques rely on passive techniques, primarily honeypots, and that honeypots are not effective at detecting peer-to-peer and other decentralized botnets. Furthermore, the detection techniques aimed at decentralized and peer-to-peer botnets focus on detecting communications between the infected bots. Recent research has shown hierarchical clustering of flow data and machine learning are effective techniques for detecting botnet peer-to-peer …

Powerlessness Within A Budget-Driven Paradigm: A Grounded Theory Leadership Study From The Perspective Of Michigan Corrections Officers, Timothy Michael Eklin

Antioch University Dissertations & Theses

This study explored the lived-experiences of 15 correctional officers and 5 sergeants working in adult state-operated prison facilities in Michigan. In particular, this qualitative grounded theory study revealed the impact that budget driven decision-making had on the lives of correctional officers: its effect on institutional custody, security, and safety. The study finds that many recent policy changes resulted in a sense of powerlessness expressed by the participants of the study. Participants found themselves in a precarious position, situated in between the prison population and the administration. Having an understanding of how correctional officers make meaning of their work in relation …

Conduct Of Business Regulation, Andrew F. Tuch

Scholarship@WashULaw

This chapter provides a survey and comparative analysis of conduct of business (COB) regulation. COB regulation governs financial intermediaries’ conduct toward their clients, that is, toward the actors – whether individuals or institutions – with whom financial intermediaries transact in providing financial products and services. Modal regulatory strategies include anti-fraud rules, and duties of care, loyalty, fair-dealing and best-execution – and variants of these duties.

The chapter describes the justifications for COB regulation, the modal regulatory strategies used and the complex frameworks within which COB regulation operates. It then generally assesses US COB regulation, focusing on the regulation of broker-dealers …

Disclaiming Loyalty: M&A Advisors And Their Engagement Letters, Andrew F. Tuch

Scholarship@WashULaw

Are investment banks fiduciaries of their merger and acquisition clients? If not, what rules, if any, constrain the conflicts of interest M&A advisors may face when advising their clients? These questions are rarely asked but central to the regulation of investment banking activities. In their article Bankers and Chancellors, 93 TEX. L. REV. 1 (2014), Professors William W. Bratton & Michael L. Wachter contend that M&A advisors effectively contract out of fiduciary duties in their client engagement letters, “emerging] in practice as arm’s-length counterparties constrained less by rules of law than by a market for reputation.” They also regard recent …

Information Privacy Law Scholars' Brief In Spokeo, Inc. V. Robins, Neil M. Richards, Julie E. Cohen, Chris Jay Hoofnagle, William Mcgeveran, Paul Ohm, Joel R. Reidenberg, David Thaw, Lauren E. Willis

Scholarship@WashULaw

This brief, submitted to the Supreme Court of the United States by 15 information privacy law scholars in the case of Spokeo, Inc. v. Robins (No 13-1339), argues that in enacting the Fair Credit Reporting Act (FCRA), Congress crafted a bargain between aggressive, secretive data-aggregating businesses and the public: if those businesses limited disclosures and made reasonable efforts to adhere to practices ensuring “maximum possible accuracy,” they would enjoy a safe harbor from litigation under many other state and federal theories. The FCRA’s consumer transparency requirements and remedial provisions were designed to encourage steady improvement in consumer reporting practices and …

Taking Back The Streets? How Street Art Ordinances Constitute Government Takings, Sheldon Evans

Scholarship@WashULaw

As street art continues to fuel a generation of counterculture and gains popularity in pop culture, laws enacted by local governments to curb this art form raise interesting constitutional issues surrounding the Fifth Amendment's Takings Clause. More and more cities across America are classifying street art and graffiti as public nuisances. Such municipalities impose their agenda on private property owners with street art ordinances. These laws allow the government to come onto private property to remove the street art; some laws go even further by requiring the property owner to remove the street art at his own cost. This Article …

The Internet Grows Up?, Neil M. Richards

Scholarship@WashULaw

Danielle Citron’s Hate Crimes in Cyberspace is one of the most important publications to date in the emerging fields of privacy and cyberlaw. In her thoughtful and insightful book, Citron explains the uneven playing field and frequently shocking acts of abuse that women face online, and demonstrates practical steps that we can take to remedy the problem of online hate through law, education, and the development of better, more inclusive norms. Other contributors to this Symposium have examined these contributions in great detail, pointing out important nuances of Citron’s argument, urging her in at least one case to be even …

Unequal Assistance Of Counsel, Peter A. Joy

Scholarship@WashULaw

There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor. The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.

The unequal treatment based on the color of one’s skin is reflected by …

Banker Loyalty In Mergers And Acquisitions, Andrew F. Tuch

Scholarship@WashULaw

When investment banks advise on merger and acquisition (M&A) transactions, are they fiduciaries of their clients, gatekeepers for investors, or simply arm’s-length counterparties with no other-regarding duties? Scholars have generally treated M&A advisors as arm’s-length counterparties, putting faith in the power of contract law and market constraints to discipline errant bank behavior. This Article counters that view, arguing that investment banks are rightly characterized as fiduciaries of their M&A clients and thus required to loyally serve client interests.

This Article also develops an analytical framework for assessing the liability rules that will most effectively deter disloyalty on the part of …

Digital Laws Evolve, Neil M. Richards

Scholarship@WashULaw

The essay from Wired Magazine (UK)'s special volume, "The Wired World in 2015," argues that although digital laws have lagged behind technological advances, they are starting to catch up, and this trend will continue in 2015. When it comes to privacy and technology, the law is catching up all over the world.

Addressing Systemic Discrimination: Public Enforcement And The Role Of The Eeoc, Pauline Kim

Scholarship@WashULaw

Cases challenging systemic discrimination have always constituted an important slice of litigation under Title VII. Early government enforcement efforts sought thorough-going reform of employment practices in major industries. Private litigants have also pursued cases alleging systemic discrimination through class action litigation. The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, however, made it considerably more difficult for private plaintiffs to pursue claims of systemic discrimination by raising the bar for certifying class actions. In the wake of the Court’s decision in Wal-Mart, many urged the Equal Employment Opportunity Commission (“EEOC”) to use its enforcement powers to take up the …

Why Data Privacy Law Is (Mostly) Constitutional, Neil M. Richards

Scholarship@WashULaw

Laws regulating the collection, use, and disclosure of personal data are (mostly) constitutional, and critics who suggest otherwise are wrong. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy rather than blunt constitutional rules. This has become one of the basic principles of American Constitutional law. Although some observers have suggested that the Supreme Court’s recent decision in Sorrell v. IMS Health (2011) changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a poorly-drafted Vermont …

A Confident Pluralism, John D. Inazu

Scholarship@WashULaw

The ongoing tension between religious liberty and gay rights is a striking example of our country’s profound and deep differences. But we are also divided over many other issues: immigration, criminal justice, abortion, contraception, poverty, and education, to name a few. Each of these differences pulls at the threads of a purported unity in pursuit of a “common good.” In light of our contemporary situation, this Article argues that we can and must live with deep and irresolvable differences in our beliefs, values, identities, and groups through a “confident pluralism.” A confident pluralism embraces a “right to differ” from state …

The First Amendment's Public Forum, John D. Inazu

Scholarship@WashULaw

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society.

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a …

Institutions In Context, John D. Inazu

Scholarship@WashULaw

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to …