With the introduction of a more remote workforce, which includes mobile banking and other forms of employment and business, we feel that it was important to have a discussion regarding what is known as is a “sniffer packet” or “sniffer.”
What is a “Sniffer Packet” or “Sniffer?”
A sniffer is generally a computer program that is used by tech support or IT companies to monitor web traffic and prevent bottlenecking from servers and for businesses.
Basically, a company will apply a sniffer to a company’s server and the sniffer will allow the company to track:
- all websites visited;
- emails sent to and from; and
- any other data transmitted within a particular company’s web traffic.
How are “Sniffers” used to Commit Cyber Crimes?
Basically, a person would download a sniffer to a particular network and collect data from your laptop, tablet, and other mobile devices.
For example, many of us in our travels are always looking for an Internet network that is free and allows us to sign in or utilize it.
One thing to be mindful of is that a person can download a sniffer program, or packet, which is free in many cases (and very cheap in some other cases).
This program will create a mobile hotspot and anyone who signs onto that free network is giving the person who implemented the sniffer program access to their emails, text messages, bank and credit card information, photos, and other electronically stored data.
So, one of the things going forward for us to be very mindful of is signing onto networks that we are not familiar with – while it may save you money on your data plan, it could cost you your personal identifying information.
How Do Sniffers Affect the Practice of Criminal Defense?
We have represented people on both sides of the coin. We have defended perpetrators who utilize sniffer programs and have defended clients who were victims of cyber crimes carried out through sniffers.
The thing you have to realize is that sniffer programs are not limited to the commercial sniffer packets that are out there.
There is a much more enhanced version of the sniffer programs that are used by the government and it is known as “Carnivore.”
What is “Carnivore?”
“Carnivore” – also known as DCS1000 – was created by the Federal Bureau of Investigations (FBI) in order to address the rise of Internet usage and traffic by monitoring emails and electronic communications.
Many refer to Carnivore as a “super sniffer program.”
The purpose of Carnivore is simple – to track and monitor Internet traffic.
Carnivore has the capability of monitoring every transaction made in the world and particularly this country in real-time.
What are the Issues with Carnivore?
One of the major problems with Carnivore is that there are limited reports made available regarding Carnivore, its usage, and its capability.
Some believe that all Internet and web traffic is captured by Carnivore.
The only question is whether the Federal Bureau of Investigations decides to monitor the material captured.
Does the Monitoring through Carnivore Require a Warrant?
Yes, in order to monitor particular material captured, the Federal Bureau of Investigations and other law enforcement agencies that utilized carnivore, are required to apply for a warrant.
When considering the fact that warrant applications are required for “government actors” (also known as law enforcement agencies) when utilizing Carnivore, no such protection actually exists as it relates to private citizens.
There are laws that prohibit private citizens from illegally accessing Internet data and other computerized devices, but the act itself is not covered by the 4th Amendment of the United States Constitution.
This is because the protections afforded to citizens under the Constitution are only protections against violations of your constitutional rights carried out by “government actors.”
What is an example of a “Government Actor?”
For example, if a “government actor” – like a cop or federal agent – conducts and illegal search of your home or apartment, they have violated your 4th Amendment protections against “unreasonable search and seizure.”
On the other hand, if a private citizen conducts and illegal search of your home or apartment, you may have another type of claim against them – like trespassing – but they would not be deemed to have violated your constitutional rights because they are not considered a “government actor.”
What are the 4th Amendment Implications of Sniffer Programs like “Carnivore?”
When the 4th amendment of the United States Constitution was enacted, as we can all imagine, the framers of the constitution could not envision the Internet world of today; it was something that was farfetched and unheard of.
While the language of the 4th amendment is broad, it was left up to the courts to decide how the 4th amendment protection should be applied to the Internet.
Has the Supreme Court Addressed These Issues?
One of the major cases where the United States Supreme Court was it was forced to grapple with the rise of the Internet and for the men, protections was Katz v. the United States in 1976.
Katz v. the United States, 389 U.S. 347 (1967)
In Katz v. the United States, the Supreme Court, after exploring the many options in the growth potential of the Internet, came down to a few basic premises on how to apply the 4th amendment to the United States Constitution should be applied to the Internet usage and growth.
What was the Court’s Holding in Katz?
The United States Supreme Court and cats simply stated that a person’s expectation of privacy is only violated if the person has exhibited an actual expectation of privacy.
Secondly, and most importantly, the court found that the expectation of privacy that the person may have exhibited must be one that society is prepared to recognize as legal and legitimate theory.
What is the Takeaway from Katz?
Basically, the court in Katz decided that in order for us as citizens to raise a constitutional claim against government actors who may be inclined to access our Internet activity, we must first show that we have exhibited an actual expectation of privacy in the way that we have conducted ourselves.
Secondly, that society is willing to recognize that right collectively. What this means is that we cannot act loosely in her conduct or intentions in regard to our privacy.
In addition – as stated above – only when our Internet activity is monitored or traffic by a law enforcement agency or “government actor” can we then say that our 4th amendment right was violated and that a court would agree with us.
Was Katz ever Codified into Law through Legislation?
Katz v. the United States was ultimately written into the United States Code as part of the enactment of the Omnibus Control and Safety Act.
Congress took further steps to enact the use of Carnivore into formal law as part of the enactment of Communications Assistance for Law Enforcement Act of 1994.
As part of the Communications Assistance for Law Enforcement Act, it was acknowledged that Carnivore does intake information submitted through cyberspace.
Call Us Now
If you have been charged with a cyber crime and would like to speak with one of our attorneys, call us now at (804) 604-5190.
