Class 11 Internet Privacy Law Government Surveillance.

Class 11

Internet Privacy Law

Government Surveillance

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or

things to be seized.-Fourth Amendment

Let’s Start Simple…ish

Third-party doctrine

❖ “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” - Smith v Maryland

Searching your home

❖ Warrant based on:

❖ (1) There is probable cause to believe that the items sought to be seized are connected with criminal activity; and

❖ (2) The items sought to be seized will probably, presently be found in the place sought to be searched.

But what about listening to your conversations?

2 Types of Telephone Monitoring

Pen Register Trap and Trace18 USC 3123

Wiretap18 USC 2518

Access to incoming and outgoing phone numbers Listen to conversation

Private VERY PRIVATE

Requires administrative subpoena Requires a warrant + lots more

Listening to your calls

❖ The judge must find:

❖ (1) probable cause for belief that a particular enumerated offense is being committed; and

❖ (2) probable cause for belief that particular communications concerning that offense will be obtained through inter- ception.

Emails and Electronic Communications

ECPA 18 USC 2703(a)❖ Contents of Wire or Electronic Communications in

Electronic Storage.— A governmental entity may require the disclosure by a provider … of the contents … in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant

❖ A governmental entity may require the disclosure by a provider … of the contents … electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.

ECPA 18 USC 2703(b)❖ Contents of Wire or Electronic Communications in a Remote Computing Service.—

❖ (1) A governmental entity may require [disclosure] made applicable by paragraph (2) of this subsection—

❖ (A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant; or

❖ (B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity—

❖ (i) uses an administrative subpoena…; or

❖ (ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title.

❖ (2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service—

❖ (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and

❖ (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.

ECPA 18 USC 2703(c)❖ Records Concerning Electronic Communication Service or Remote Computing Service.—

❖ (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the—

❖ (A) name;

❖ (B) address;

❖ (C) local and long distance telephone connection records, or records of session times and durations;

❖ (D) length of service (including start date) and types of service utilized;

❖ (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and

❖ (F) means and source of payment for such service (including any credit card or bank account number),

❖ of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).

Expectation of Privacy?

Cellphone Unlocking❖ Riley v. California

❖ “[S]uch a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

❖ “The fact that technology now allows an individual to carry such information in his hand,” the chief justice also wrote, “does not make the information any less worthy of the protection for which the founders fought.”

FBI Calls for Cellphone Unlocking

❖ “I am a huge believer in the rule of law, but I am also a believer that no one in this country is beyond the law.  What concerns me about this is companies marketing something expressly to allow people to place themselves above the law.” - FBI Director Comey

Statement of FBI Director

I like and believe very much that we should have to obtain a warrant from an independent judge to be able to take the content of anyone's closet or their smart phone.  The notion that someone would market a closet that could never be opened -- even if it involves a case involving a child kidnapper and a court order -- to me does not make any sense.

Google is marketing their Android the same way: Buy our phone and law-enforcement, even with legal process, can never get access to it.

There will come a day -- well it comes every day in this business -- when it will matter a great, great deal to the lives of people of all kinds that we be able to with judicial authorization gain access to a kidnapper's or a terrorist or a criminal's device.

I just want to make sure we have a good conversation in this country before that day comes. I'd hate to have people look at me and say, 'Well how come you can't save this kid,' 'how come you can't do this thing.'

LEADS (Law Enforcement Access to Data Stored

Abroad Act)

What Microsoft Does What Others Do

Microsoft v USA (14-2985)

❖ Last December, U.S. Magistrate Judge James C. Francis IV issued a search warrant that authorized the government to obtain information associated with an email account that was hosted in Dublin.

❖ Fully briefed and will be argued in front of the 2nd Circuit in the fall.

LEADS (Law Enforcement Access to Data Stored Abroad Act)

S. 512 (Sen. Hatch), H.R. 1174 (Rep. Marino)

❖ Clarify the warrant requirement for digital communication

❖ Provides extraterritorial jurisdiction for warrants regarding U.S. persons

❖ Strengthens the framework for the Mutual Legal Assistance Treaty (MLAT) process

❖ Sense of Congress against data localization