Saturday, December 18, 2004
Kerr writes: "I graduated from Harvard Law School in 1997, clerked on the Court of Appeals for a year, and then entered the Justice Department Honors Program in the Criminal Division. Most of my legal scholarship has been inspired by the terrific experience I had working at DOJ in the Computer Crime and Intellectual Property Section, also known as “CCIPS,” from 1998 to 2001. CCIPS was a crash course in the new world of computer crime law. My experience included directing investigations in computer hacking, child pornography, and other computer crime cases; writing the 2001 edition of DOJ’s manual on Searching and Seizing Computers; drafting and commenting on legislation; and serving as a legal advisor to other prosecutors and law enforcement agents in a wide range of computer crime cases.
While at DOJ, I realized that a new branch of criminal law was developing that the academic world had not yet noticed: computer crime law. Computer crime law asks all of the traditional questions of criminal law and criminal procedure in the new factual setting of computers and the Internet. I had been interested in computer crime law as far back as law school; I came to law school following engineering graduate school at Stanford, so I was interested in technology, and I wrote a case comment on a computer crime case as a 2L. But at DOJ I began see the various strands of computer crime law as parts of a surprisingly coherent whole.
Specifically, the field has both its own complex doctrinal puzzles – including the interpretation of difficult statutes such as the Computer Fraud and Abuse Act, the Stored Communications Act, the Pen Register Statute, and the Wiretap Act, as well as the applications of the Fourth Amendment to computer search and seizures – and also raises a number of deep and interconnected questions about the relationship between law and technological change. Further, it seemed like a safe bet that the field would grow more important in the coming years. At a time when many academics were debating whether “cyberlaw” existed, I realized that a distinct field of computer crime law already had emerged and that a growing number of prosecutors around the country already were practicing it.
I left DOJ in the summer of 2001 and accepted a position as an Associate Professor at George Washington University Law School. I taught at GW for two years, and then took a one-year leave of absence to clerk for Justice Kennedy at the Supreme Court. I returned to GW this past summer, and this year I am teaching Criminal Law, Criminal Procedure, and Computer Crime. As you might guess, my scholarship since leaving DOJ has focused on what I see as the basic questions of computer crime law. No one has written on most of these questions, and the courts have had trouble with them (to the extent they have addressed them at all). Most of the important questions are still open.
My articles published in the last two years cover topics such as the proper interpretation of computer crime statutes (in the Nov ’03 NYU Law Review); how digital evidence will change criminal procedure (forthcoming in the Jan ’05 Columbia Law Review); the role of the Fourth Amendment in protecting privacy in new technologies (in the Mar ’04 Michigan Law Review); and the USA Patriot Act (in the Winter ’03 Northwestern Law Review). [For a list of Kerr's Publications click here, and for links to Kerr's recent publications, click here.]
Right now I am working on an article on the Fourth Amendment and the computer forensics process. The question is, what rules should regulate the retrieval of evidence from a seized computer hard drive? So far it’s a fun paper, as computer hard drives are hard to categorize from a Fourth Amendment perspective. Is searching a hard drive just like searching a physical box? Or is it more like searching a virtual home? Or perhaps more like wiretapping a telephone? The doctrinal answer is a mystery at present, but the questions raise a number of interesting and important questions about the nature of the Fourth Amendment.
My next big project is completing the Computer Crime Law casebook that I am writing for West Publishers. I completed a draft in the summer of 2003, and it was used last year at about a dozen law schools. The casebook presents my basic take on the field. It covers topics such as computer hacking, viruses, cyberstalking, Internet frauds, child pornography laws, sentencing cybercriminals, online entrapment, Internet surveillance law, wiretapping, e-mail privacy, federal and state limits on investigating and prosecuting crimes, international cooperation and the EU Cybercrime convention, and the Foreign Intelligence Surveillance Act. Coming soon."
Kerr also co-edits The Volokh Conspiracy blog.
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