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2005-6 Civil Liberties Topic Guide

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Introduction

In 1986, Congress amended the Title III of the Omnibus Crime Control and Safe Streets Act by passing the Electronic Communications Privacy Act (ECPA). ECPA broke Title III into three Titles. Title I is the Wiretap Act, which deals with the interception of communications that are in transmission. Title II is the Stored Communications Act (SCA) that deals with accessing stored communications and records. Title III is the Pen Register Act that applies to pen registers and trap and trace devices. Pen registers are devices that record the numbers of your outgoing phone calls. Trap and trace devices are devices that record the numbers of your incoming phone calls.

There are a number of critical exemptions to the Wiretap Act that limit its effectiveness. The first exemption is that it video surveillance is not covered by the act; only video surveillance that includes voice recordings is covered (Solove, 2004, p. 1280). Second, the Wiretap Act provides no protection against the key stroke recorders discussed in one of the previous sections because key strokes are not recorded in transit.

The Stored Communications Act (SCA) was enacted in 1986 as part of the Electronic Communications Privacy Act (ECPA). The Act is designed to provide privacy protections to the contents of communications that are stored on computers other than one’s own (Kerr, 2004).

A brief reference to the earlier section on the history of the Fourth Amendment makes it clear that a legislative solution to the protection of privacy is needed. As discussed, originally the courts only required probable-caused based warrants when a person’s private property – in this case his or her own computer – was searched. In Katz, the Supreme Court expanded that protection to the person, but, at least in that instance, only to communication that occurred directly between two people. The court provided no protection to communication that was shared with a third party, such as an internet service provider (e.g, America Online) that may temporarily or permanently store your email. In fact, in cases such as Couch v. the United States ( ), the Supreme Court has held that there is no Constitutional protection for tax information shared with a third party. In Miller v. U.S. ( ), the court made a similar ruling, exempting financial records held by banks and other financial institutions from general probable cause and warrant requirements. Bellia (2004) explains:

The Supreme Court linked together these two lines of cases in United States v. Miller. There, the Court considered whether an individual had a reasonable expectation of privacy in checks, financial statements, and deposit slips that banks held concerning his accounts. The government had subpoenaed the records from the banks, which complied without objection. The Court rejected Miller's claim that the Fourth Amendment required the government to present a warrant to obtain the information, concluding that Miller had no legitimate expectation of privacy in the contents of the documents. The Court first drew upon the reasoning of Couch to examine the type of records involved and the independent interest of the persons receiving the documents in the documents' contents: "We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate 'expectation of privacy' concerning their contents." The records involved in Couch were business records containing information that the accountant needed in order to complete a tax return. Similarly, the checks at issue in Miller were "not confidential communications but negotiable instruments to be used in commercial transactions," and the other documents obtained, "including financial statements and deposit slips," contained only "information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business." Although initially focusing, as the Couch Court did, on the nature of the documents involved and the relevance of their contents to the bank's activities, the Court shifted its analysis and drew upon the government informant and undercover agent cases. Citing Lopez, Hoffa, and White, the Court reasoned: The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed (1400-1401)

Kerr (2004) explains that Fourth Amendment protections as currently interpreted by the Court provide no privacy protections:

Internet Service Providers ("ISPs") act as third parties that hold and process a user's information on the user's behalf. The Supreme Court has repeatedly held, however, that the Fourth Amendment does not protect information revealed to third parties. Several courts have applied this rationale and held that an Internet user does not retain a reasonable expectation of privacy in noncontent information disclosed to an ISP. The theory of these cases is that by communicating with their ISPs, Internet users have revealed information to their ISPs and have relinquished their Fourth Amendment rights in that information. It is too early to tell whether courts will adopt the same rationale for content information, such as e-mails. Some early precedents suggest that they will not, but others suggest that they will, at least in some circumstances. Either way, it remains unclear today whether files held by ISPs on behalf of their users can retain a Fourth Amendment "reasonable expectation of privacy." The Fourth Amendment rules governing grand jury subpoenas offer a second reason why the Fourth Amendment apparently offers weak privacy protection online. Because ISPs are third-party corporate entities, investigators do not ordinarily search the servers of ISPs directly. Investigators do not break down the ISP's door and start looking for the files themselves. Instead, they obtain a court order compelling the network provider to disclose the information to the government. This is important under existing Fourth Amendment doctrine: the Fourth Amendment generally allows the government to issue a grand jury subpoena compelling the disclosure of information and property, even if it is protected by a Fourth Amendment "reasonable expectation of privacy." When the government obtains a court order such as a subpoena that requires the recipient of the order to turn over evidence to the government within a specified period of time, the order will generally comply with the Fourth Amendment if it seeks relevant information and is not overbroad. Such circumstances do not require probable cause. This analysis also apparently applies when a suspect stores materials remotely with a third party, and the government serves the third party with the subpoena. Although the cases are sparse and hardly models of clarity, they suggest that so long as the third party is in possession of the target's materials, the government may subpoena the materials from the third party without first obtaining a warrant based on probable cause. The third reason that the Fourth Amendment generally offers weak privacy protections online is that most ISPs are private actors. Most are commercial service providers, not government entities. Under the private search doctrine, the Fourth Amendment "is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." As a result, even if the Fourth Amendment protects files stored with an ISP, the ISP can search through all of the stored files on its server and disclose them to the government without violating the Fourth Amendment. Taken together, these three reasons make it difficult for robust Fourth Amendment protections to apply online. Because private files are held remotely by private ISPs, current doctrine does not protect remotely stored noncontent files and leaves the protection of stored content files unclear. And even if those files are protected, they likely can be subpoenaed by the government without probable cause. And even if the files cannot be subpoenaed, private ISPs can search through the files and disclose the fruits to law enforcement under the Fourth Amendment's private search doctrine. As I have written elsewhere, these details of how the Internet works make it almost "custom designed" to frustrate claims of strong Fourth Amendment protection in remotely stored files under current Fourth Amendment doctrine. The SCA addresses this imbalance by offering network account holders a range of statutory privacy rights against access to stored account information held by network service providers. The statute creates a set of Fourth Amendment-like privacy protections by statute, regulating the relationship between government investigators and service providers in possession of users' private information. It does this in two ways. First, the statute creates limits on the government's ability to compel providers to disclose information in their possession about their customers and subscribers. Although the Fourth Amendment may require no more than a subpoena to obtain e-mails, the statute confers greater privacy protection. Second, the statute places limits on the ability of ISPs to voluntarily disclose information about their customers and subscribers to the government (pp. 1211-13)

The SCA provides privacy protection for two types of computers services – electronic communications services (ECS) and remote computing services (RCS). ECS service are services such as AOL and Comcast that individuals use to send email back and forth. Often, these services retain copies of emails on their own servers, or the emails “wait” on these servers until picked-up by the user. RCS are services that processed computing tasks, such as data analysis, for individuals. Although these services are not commonly used today in this way because individuals can easily obtain computers that have the power to do what only these services were able to do in the past, many users do place files on FTP sites for long-term storage or, most recently, have started storing files in gmail accounts. The SCA provides privacy protection for these documents that are “temporarily” stored with another provider either for ready-access or for back-up by an ECS and for long-term storage by an RCS. When individuals store email on an account for the log-term, a ECS provider essentially becomes and RCS provider.

There are a number of “loopholes” or exemptions to the SCA that mitigate these protections. First, these protections only apply to email servers that are publicly accessible, such as AOL or Hotmail. They do not apply to private email systems, such as university or government email systems. Second, only “unretrieved email and other temporarily stored files held pending transmission for 180 days or less receive the protection of a full warrant requirement” (p. 1233). Other materials can be obtained with a simple subpoena and prior notice and even notice to the party that a subpoena was issued can be delayed by 90 days. Solove (2004) explains:

The Stored Communications Act is much less protective than the Wiretap Act. Whereas the Wiretap Act requires a "super warrant," the Stored Communications Act requires a range of less restrictive orders. Regular warrants are required only to obtain the contents of communications in electronic storage for 180 days or less. If communications are stored over 180 days, the government can access them with an administrative subpoena, a grand jury subpoena, a trial subpoena, or a court order. There is no requirement for probable cause, only "specific and articulable facts showing that there are reasonable grounds" to believe communications are "relevant" to the criminal investigation. For remotely stored files, such as e-mails that have been downloaded and read, the DOJ contends that the government can access them with a mere subpoena, a radically different device than a warrant. Subpoenas do not require probable cause or judicial approval. As William Stuntz notes, federal subpoena power is "akin to a blank check” (pp. 1283-4).

Moreover, a person has no constitutional privacy protection against pen registers and trap and trace devices. In Smith v. Maryland (), the United States Supreme Court ruled that phone number information is no different than addressing information that is on the outside of an envelope. While the Supreme Court did hold that a person would have privacy in the content of the envelope, and hence in the content of their phone conversation, they do not have protection in the addressing information of the envelope or for the phone numbers.

To address this lack of constitutional protection, Congress passed the Pen Register Act to protect this envelop-style information. The protections in the Pen Register Act, however, are very weak. The government does not need to establish probable cause to gain access to the information, but only needs to certify that “the information likely to be obtained by such installation (of a pen register or wiretap) and use is relevant to an ongoing investigation.” And, like the SCA, the pen register act does not have an exclusionary rule.

Moreover, according to Solove (2004), the PATRIOT Act “expanded the definition of pen registers and trap and trace devices to apply to addressing information on e-mails (e-mail headers) and to Internet Protocol ("IP") addresses. Previously, pen registers were defined as devices that recorded "the numbers dialed ... on the telephone line." Now, the definition extends to all "dialing, routing, addressing, or signaling information" beyond telephone lines to numerous forms of transmission. The effect of this change is that e-mail headers (the addressing information on e-mail messages), IP addresses, and Uniform Resource Locators ("URLs") fall under this definition” (p. 1287).

Although apparently, particularly in the context of an envelope, information related to who someone calls, who one takes calls from, who one emails with, and what one searches for on the internet can be very revealing, potentially even more revealing than the content of the exchanges.

The Affirmative

The Advantages

Privacy. The most common harm that is discussed in the literature comes from the privacy invasions associated with the routine government searching of these records. Since most people frequently use electronic systems, they are likely to have many records about them stored.

Tyranny. This is just an extension of the privacy advantage. The argument is that the government will eventually become tyrannical with the control of so much information.

Plans

Special orders. Solove (2004) advocates that the government only be able to obtain information by requiring a 2703(d) order. This would prohibit the government from obtaining information with a mere subpoena or delaying notice without judicial review.

Probable Cause warrants. Solove (2004) advocates that the government should have to obtain a warrant based on probable cause before searching any electronic communication. Agreeing with () that internet/telecommunications surveillance law is complex and confusing, Solove (2004) suggests “a rather radical solution: Warrants supported by probable cause should be required for most uses of electronic surveillance. I explain why this solution best resolves the existing problems with electronic surveillance law, and I argue that this approach is flexible and practical” (p. 1266).

The Negative

Disadvantages

Crime. The government’s rational for searching without probable-caused is that it would undermine its war on crime.

Christopher Woo, Associate in Davis Polk & Wardwell’s Corporate Department, HARVARD JOURNAL OF LAW & TECHNOLOGY, Spring 2002, p. 523.

Technology has always played a critical role in law enforcement surveillance. From wiretapping to thermal imaging, technological advancement has allowed the government to monitor an increasingly wide range of activities and has led to greater successes in intelligence gathering. The government has used wiretaps to monitor conversations for over a century. The development of thermal imaging devices allows law enforcement agencies to detect heat emitted from residences and consequently to infer certain types of activities occurring inside such residences. Recent advances in computer technology have led to programs such as Carnivore, a surveillance system capable of collecting information sent from a suspect's computer through her Internet Service Provider to other computers on the Internet. This information includes the content of e-mail messages, web pages viewed by the suspect, and files sent using File Transfer Protocol.

Terrorism. The terrorism rationale is similar to the crime rationale:

Aaron Nance, JD candidate at University of Missouri at Kansas City Law School , UNIVERSITY OF MISSOURI AT KANSAS CITY LAW REVIEW, Spring 2002, p. 752.

In order to further their exploits in terrorism, information warfare, and child pornography among other heinous crimes, outlaws are turning the powerful technology of the Internet against the innocent. Those who advocate Internet privacy above all else and oppose the technology developed by law enforcement to combat the unseen dangers lurking in emails, web pages, and jpeg images are missing a critical point. Without such technology and measured trust in the government's ability to use it effectively within the law, far more serious concerns than whether the FBI has inadvertently intercepted and read a Christmas email to Grandma will arise.

Politics. There is a lot of political support for expanded surveillance in general, and expanded internet surveillance in particular. The justification is that the government needs the technology to keep up with the “bad guys.”

Counterplans

Alternative approaches. The only article I found that advocates adopting a probable cause standard is the Solove (2004) article that is referenced above. And, even then Solove says that it is not enough because there is no exclusionary rule now. What most of the articles propose is some type of regulatory scheme to make sure that the government does not abuse its power when conducting these type of searches without probable cause. These are strong counterplans for the negative because the negative can use the Crime and Terrorism arguments as net-benefits.

Agent. Congress could pass legislation to provide the protections that the plan does or the courts could interpret the Fourth Amendment and case law to require them. Either way, the negative can simply pick a different agent than the affirmative.

Topicality

Two potential topicality issues present themselves if the plan were to adopt a warrant requirement based on probable cause. First, it is arguably non-topical to include a warrant requirement in the plan. All that the resolution asks the affirmative to do is to limit searches without probable cause. The police are often required to have probable cause, but not necessarily to obtain a warrant. Adding a warrant requirement to the plan could be considered “extra-topical.”

Second, Solove (2004) later goes on to argue in his article that Congress would also need to add exclusionary rule protections to the various titles of the ESPA, particularly the SCA because there is currently no requirement that the evidence is excluded at trial if the police obtain it through an illegal search! He explains:

The Stored Communications Act is enforced with much less stringent penalties than the Wiretap Act. Whereas Wiretap Act violations have minimum damages of $ 10,000, Stored Communications Act violations carry minimum damages of only $ 1000. Another major problem with the Stored Communications Act is that it lacks an exclusionary rule. Even if the police violate the Act blatantly, they can still use surveillance evidence obtained from such misconduct against a defendant in a criminal trial. For example, in United States v. Hambrick, the police used an obviously invalid subpoena to obtain ISP records about a pseudonymous person. In United States v. Kennedy the court found that a court order to obtain the defendant's ISP records was deficient because the government failed to articulate the "specific and articulable facts" required to justify the order. Nevertheless, the evidence was admitted in the trial because the Stored Communications Act has no exclusionary rule (p. 1285).

Affirmatives that only add probable cause requirements to the ECA would have almost no solvency. Adding an exclusionary rule smells of even more extra-topical action than adding a warrant requirement, though one could make the argument that both of these were simply means to reduce “authority.”

2010-11 Policy Resources