SIndependent Essay: “Varieties of Surveillance & the Law”
Law Advisor: Dr. Adina Schwartz, JD. YALE LAW SCHOOL, PhD. Rockefeller University, Philosophia-Choeu-Lakyh
PhD Supervisor Mentor: Dr. F. Warren Ned Benton, BA. Grinell College, PhD-U of Illinois, Urba-Champaigne
LEGAL PHILOSOPHY OF CRIMINAL JUSTICE/LAW: Dr. John Kleinig, BDIV, University of Sydney, PhD. Australian National University, Cranberra
Graduate Center/CUNY-209
All Rights Reserved, Occidentalis-Orientalia Ipso Converso Digital Works Press,
E-CONFERENCES, LETTER DIGITAL PRO-LIST INST.,: SCPC
1. Pre-Postal Mail Surveillance: Mail Cover
Mail covers have been used by law enforcement officials and USPIS and Customs agents for the process (Krenn & Bem, personal communications, UPSIS, 2008) to record non-consensually any data appearing on the outside cover of any piece of sealed or unsealed mail matter, or by which a record is made of the contents of mail matter as allowed by law for the information for any of the following:
1) protecting national security.
2) locating a fugitive.
3) obtaining evidence of commission or attempted commission of a crime.
4)obtaining evidence of violation or attempted violation of a postal statute.
“Law enforcement agency is any authority” (Krenn et al) is any authority of the federal government, or any authority of a state or local government or any authority or local government, one whose function is to investigate the commission of acts constituting a crime, or protect national security. It is interesting to note that Section 233.3 from Title 39 Code of Federal Regulation (CFR 39) references the U.S. Postal Service’s policy does not distinguish between the process of mail covers for search and seizure purposes in different types of mailing, including the Intlelligent Mail Policy enacted in 1998 (UPS, Privacy Office, http://www.ups.com/privacy/intelligentmail.htm#2)
According to Weissmann (personal communications, USPIS, 2008) “the courts have established that a person has no reasonable expectation of privacy (“plain view”) information conveyed on the outside of his or her mail. Where there is no such expectation of privacy, the 4th Amendment does not apply. This court opinion in United States v. Choate, 576 F.2nd, 177 (9th Cir. 1978). This court argued that the content of the mail would be foreseeable to the postal employees.
However, importantly there are few caveats to the rule of the mail covers, and postal interception. The Supreme Court in United States v. Ramsey, 431 U.S. 606, in a majority opinion claimed that a required search warrant and probable cause is necessary to open mail at borders. LaFave writes, “Nothing that searches made at the border are reasonable simple by virtue of the fact that they occur at the border.” (LaFave, 2004; 10). The Court gave the same reasoning with international letters in the same case:
Justice White in his dissenting opinion writes:
Border searches, then from, before the adoption pf the Fourth Amendment, have been considered to be “reasonable” by the single fact that
the person or item in question has entered into our country from the outside. There have never been any additional requirements that the reasonableness of a border search depended on the existence of probable cause.
But the logic of the search and seizure of contraband in the Ramsey ruling, was that suspect was seized, and his effect search without a warrant and probable cause, which may have a false analog with a search in incident to arrest. If it was not technically an arrest or a “seizure” in respect to the fact that there were no use of a prior-mail cover, or that it were an exigent circumstance situation, or were it the case that there was solvent evidence that he was committing or attempting to commit an offense in the U.S----the fundamental importance in Ramsey is that the reasonableness standard, does not or should not procedurally follow a full blown search (without a warrant and probable cause) in border cross cases or international mail. In Ramsey the Court ruled it unconstitutional. The decision was reversed, and the evidence excluded.
As LaFave (2004: 263) significantly comments: “Certainly this later proscription is grounded in Fourth Amendment principle that evidence may not be introduced if it was discovered by means of a search and seizure which were not reasonable related in scope to the justification of the initiation, Terry v. Ohio, 392, U.S. 1(1968).” Dressler (1998) citing LaFave’s commentary (2004) explains the justification for the exclusionary rule was established in the Courts ruling in Mapp v. Ohio, 367, U.S. 643 (1961). The justification of the exclusionary rule “is to deter-to compel constitutional respect for the constitutional guarantee in the only available way—by removing the incentive to disregard it,” Elkins v. United States, 364, U.S. 206, 217 (1960). To get to the heart of the matter, the exclusionary rule suppresses the illegally and unconstitutionally obtained evidence; and aims to deter law enforcement officials that they will go about their police work or investigations through the violation of 4th Amendment. However, in United States v. Leon, 468 U.S. 897 (1984) the Court introduced what is known as the “good faith” exception, viz., when a police officer believes that he or she is executing a search warrant under the belief that it is valid, but for technical reason it was not an effective or valid one for technical reasons---which the police officer had no way of knowing after obtaining the evidence. In respect to the leading case of Ramsey, there was no probable cause, or search warrant, and hence the exclusionary rule was applied, without a “good faith exception.”
Part II. Telephonic Surveillance and the Law
Justice Brandeis, in his dissenting opinion, in Olmstead v. United States, 277 U.S. 438 (1928) said that message passed over telephonic wires should be protected under the 4th Amendment. The majority of the Court assented to the ruling that 4th Amendment protects property in which the wiretap devices were installed, and that it did not constitute a “search.” As Chief Justice Taft wrote: “The evidence was secured by the use of sense of hearing and that only. There was no entry of the house or offices of the defendants.” The police operation was conducted without a search warrant, moreover.
One year after the Title III, Omnibus Safe Street Act was enacted by Congress, there was a departure in the ruling of the Court in Katz v. United States, 389 U.S. (1967) in respect to telephonic surveillance. In contrast, Katz no longer no longer conforming to the “trespass of property” doctrine, presented problems of interpreting two standards of what constitutes a “search” in respect to the expectation of privacy. Justice Stewart stated: “the Fourth Amendment protects people, not property.” But the further equivocation in which the “tests” of reasonable expectation of privacy did not demarcate as to what constitutes “actual” and “subjective” test of reasonable expectation of privacy with implications on Post-Katz jurisprudence. Justice Stewart further writes: “what a person knowingly exposes to the public, even in his own home or office, is not subject of 4th Amendment protections.” But he further qualifies his opinion by stating that “what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected.” So Justice Harlan who concurred in the ruling raised the question of how does the Court interpret the procedural meaning of “search” in respect to the to the “actual” and “subjective” “reasonable” expectation of privacy in such a context. As to the question of the dualistic tests in regard to regard as to what constitutes a telephonic or cyburveillance search, the answer to this issue may be contingent on a practical-pragmatic conceptual clarification of how the courts have interpreted the test-standards of the “reasonableness” element in how much 4th Amendment privacy protection is afforded in the two pronged tests to defendants.
Moreover, Stephen Henderson (20005: 3) precisely brings about the complex problems of the Post-Katz jurisprudence in regard to the previously mentioned tests harkening back to Olmstead: “it was equally clear that this language did not encompass the mode (my emphasis) at issue, namely the transmission of the human voice via analog electronic signal.” Both Goldman v. United States, 316 U.S. 129 (1942), and Silverman v. United States, 365 U.S. 505 (1960) present problems that have not been fully overcome in the reasonable expectation of privacy tests, when given the consideration of “third party (interception) doctrine” (Ditzion, 2004; Gruber; 2008; Henderson, 2005).
The first transactional case of “third party doctrine” pertaining to the 4th Amendment was United States v. Miller, 442 U.S. 435 (1976) followed by Smith v. Maryland, U.S. 442 735 (1979). The issue of the bank releasing Miller’s bank record under grand subpoena was redressed by defendant’s move to suppress such a search by 4th Amendment protections.
According to Henderson (2005: 6), the banks had the right to preserve the financial information, in which Miller had no choice to deposit his financial transactions as a fact of the matter. The Court, however, ruled that “Miller had no protectable Fourth Amendment interests in the documents.” Such a question raises whether one has privacy interests in personal financial records, which cannot be subject to search by the state---which may or would lead to self-incrimination or governmental coercion without 4th Amendment protections.
A variant of this legal case scenario was followed by Smith v. Maryland. The question of this case is that does one have privacy interests when pen registers are used to trace dialed numbers. The Court ruled that one does not have reasonably subjective privacy interests when the dialed phone numbers are transmitted to third person telecommunication entity.
Gruber (2008) in her significant article makes the distinction between the two-pronged Katz tests as having been diminished to levels of “risk analysis” of 4th Amendment protections. She finds problems with the borderline distinction between what can be discerned as a legal epistemology of public space (“plain view searches, or new technologies that are intrusive to personal standards of privacy) and legitimate zones of private space, where police can conduct licit search and seizures. There are no guarantors and guarantees as to what reasonable expectation of privacy may definitively hold in binding situation as to whether the cost of risk outweighs the cost of being seized and searched, since Post-Katz jurisprudence has been interpreted by the courts on many differing levels and with varying outcomes. It may be a bit chaotic in what the future outcomes may hold for internet surveillance. In conclusion, Gruber raises the point that both socially normative and empirical verifications of a return to the reasonable expectations of privacy must hold onto the prior jurisprudential reasoning and decision-making of Katz.
III. E-Mail Interception & Remedies
Such technologies as e-mail pen registers pose certain problems in term of collecting non-content and content information. There is no clear law at present to determine whether such is the case or not, other than what Orin Kerr (2003) has previously said in the past that the government has the technology to collect both. E-mail pen registers have the capacity to collect URL, e-mail address and addressee, and header information. It is a debate whether this is content information, which is very different from telephonic pen registers which record dialed phoned numbers. This in murky waters may be tantamount to e-mail search. The question whether an ISP, as third party can give access to such information outside of FISA, on most cases standards of reasonableness to conduct an investigation under the PATRIOT ACT, and not probable cause, and a search warrant. Under Miller and Smith, under grand jury subpoena if it is criminal case, the conservative holding of these cases if relevant to e-mail interception is that there is little 4th Amendment protection for the defendant, when it involves third party ISPs.
Orin Kerr (2003: 2) presents a hypothetical case for suppression remedy as tantamount to principle of the exclusionary rule in regard to illegal e-mail interception. Kerr argues that Congress “should restructure the remedies scheme of Internet surveillance by statutory suppression remedy for violations of Internet surveillance statutes.” He intends to strike a balance between internet privacy needs and the role of law enforcement of not abusing police power though illegal searches, yet following the rule of law to perform their investigative and evidentiary function.
Kerr then a strikingly interesting question about why this matters to both internet privacy and 4th Amendment protection and third party interception doctrine. He writes:
“Why does this matter? It matters because the basic design of the Internet harnesses the disclosure, sharing, and exposure of information to many machines connected to the network. The internet seems almost custom-designed to frustrate the claims of broad Fourth Amendment protection: the Fourth Amendment does not protect information to third parties, and the Internet works by disclosing information to third parties.
……The user looks at the e-mail , copies, and then sends a copy across the Internet where it is seen by many other computers before it reaches the the recipient’s ISP…….While the e-mail seems like postal mail, it sent more like a post card, exposed during delivery.” (Kerr 2003:4).
The implication to this comment is a significant one. Third party interception is an automatic given which may be liable to the illicit abuse of hackers, and illicit reading of e-mails by ISP’s, and by the police, where they to conduct an illegal e-mail interception search. However, the Stored Communication Act forbids ISPs from disclosing information to the government exception in specific situation, mostly under the condition of probable cause, search warrant and grand subpoena (Kerr 2003: 5). The major point that Kerr concludes is that there is not enough protection of privacy under the 4th Amendment in contradistinction to physical searches and seizures; and that such remedies are not viable under Constitutional rules, but must be legislated through statutory remedies mediated by Congress.
IV. ECPA
Electronic Communication Privacy Act, 18 USC 2510 (1986) is a combination of the Wiretap Act (Title I) Stored Communication Act (Title II), Pen Register/Tap and Tract Act (Title III). The three titles cover the electronic (telephonic-voice mail) and e-mail, and other computer based electronic telecommunication devices, but less clear on how it delineates the “real time” interception in contradistinction to what was one once telephonic “wired communication”; and to what can be searched and seized in the stored communication retrieval of e-mails. (Mulligan, 2004). The PATRIOT Act extended the Wiretap Act to e-mail interceptions, as did pen register and tap/trace, with less restrictive measure due to the War on Terror (CCISP, DOJ: 20002). Other than for the Wiretap Act prior to the PATRIOT Act and FISA (Solove, 2004), there was a need for probable cause and search warrant by a Magistrate. But, now, the threshold has been lowered for Title I, and Title III, See 18 USC 2513, Title XVIII, Chapter 119, Sections, 2511, (4a), which was recently codified in 2008. In criminal cases, for telephonic wiretap the traditional case for probable cause and search warrant still holds. As for civil penalties there is imprisonment up to five years, (5) 25111, (5B) a mandatory fine up to $10,000 fine for each violation of the statute. But the borderline between where wire communication (physical telephonic surveillance) and e-mail surveillance differ in the application of ECPA, tend to favor less 4th Amendment protection for e-mail privacy to a greater degree.
In respect to standards, the Wiretap Act only permits certain types of high ranking officials to apply for the warrant. It requires probable cause, a super warrant, which requires specific description of where the interception will be intercepted, the type of communication, and the duration of the communication (Solove, 2004).
The Stored Communication Act is less stringent in its requirement to conduct a search than the Wiretap Act. Regular warrants are required to obtain the contents of 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 (Solove, 2004). There is no requirement for probable cause. All that is necessary for the search is that it is it “relevant” to conducting an investigation, as “articulable facts on reasonable grounds.”
The standard for the Pen Register/Tap and Trace Act is by far the least restrictive. There is no need on an evidentiary basis to utilize such devices, but requires a court order that is “relevant to investigation” on “reasonable” grounds. (Solove, 2004) Probable cause is not required.
However, as 18 USC 2518 (10) (a)(i) states that an aggrieved person of an illegal search may seek suppression remedies, when the communication was unlawfully ion and policy to reach the goal of protecting 4th Amendment e-mail privacy, without mere resort to Constitutional rules and interpretation.
USC 2520, Title XVIII specifies recovery of authorized civil damages. The civil remedy model for general violations of the Stored Communication Act is listed under sections 2511(2)(ii)[18 USC section 2510]; whereby the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less $100, and not more than $1000 to one year imprisonment (Oyama, 2006).
Moreover, there is one very significant case that raises the issues with the ECPA (Title I, the Wiretap Act) and the Storage Communication Act: United States v. Councilman, 418 F. 3rd 67 (1st Cir, 2005) (en banc)
This was a controversial decision in which the Title I, as for electronic
communication in transmission did not have legal ramification or
conflicted with the “absence of the term of definition of electronic
(electronic storage, Title II). Oyama analyzes this problem that such an
omission was in the law of ECPA in where there no concordance in
how to resolve this legal non sequitur in the outcomes in the first decision favoring Councilman---though obviously can be read as a loophole in what Congress had intended to protect e-mail privacy via the process of interception, when e-mail is temporarily stored in electronic mailboxes of ISPs.
This problem is as much technological than just legal: Oyama (2006: 7) writes, “The First Circuit Court en banc decision to reverse should be commended. Councilman II created serious problems because e-mails always pass through temporary storage during transmission.” She suggests that Congress must reform the contradiction between Title I and II of ECPA, due to the future problems this may cause as it did in Councilman.
The other controversial and problematic case is Warshak v. United States, 532 F. 3d. 521 (2008) was a case of violation of 4th Amendment privacy protection rights based on preliminary injunction of warrantless searches on his e-mail disclosed by his ISP providers. Warshak argued that it was an unreasonable violation of expectation of privacy. The 6th Circuit avoided hypothetical constitutional issues, but pointed to the loop hole in the Stored Communication Act, but ruled on side of Warshak that the preliminary injunction could jeopardize 4th Amendment protections, unless as the government argued following the Title II statutory law. The majority of the court concluded it was an unreasonable violation of privacy, based on the controversial issue that the e-mail search is allowed to be conducted based on “reasonable grounds” on relevance to investigation, without jeopardizing personal safety, and evidentiary material. Here we have a leading case of divergence of interpretation of the limits of 4th amendment privacy protection and Title
II.
V. FAA
Foreign Surveillance Act Amendment (2008) first amended code in Title 1802 (a1) states:
1) Not withstanding any other law, the President through the Attorney General, may authorize electronic surveillance without a court order under this subchapter……up to one year if the Attorney General certifies in writing under oath that—
A) the electronic surveillance is solely directed at
i) the acquisition of contents used exclusively between or among foreign powers, as defined in section 1901 (a) (1) (2) (3).
ii) the acquisition of technical intelligence, other than spoken communication of individuals, from property or premises under the
exclusive control of a foreign power, as defined in section 1801 (a) (1), (2), (3) of this title.
B) there is no substantial likelihood that surveillance will acquire the contents and communications to which a United States person is a party; and
C) the proposed minimized procedures with respect to such surveillance with respect to meet the minimization procedures under section 1801 (h) of this title.
Moreover, in terms of “breaking down the wall between criminal investigation and intelligence gathering”—the newly amended Foreign Surveillance Act (2008) has made it clear Title 50, 1806 (k1):
Federal Officers who conduct electronic surveillance to acquire
Foreign intelligence under this subchapter may consult with Federal Law Enforcement personnel or State or political subdivision of the state (including the chief executive officer of the State or political subdivisions who has the authority to appoint
or direct the chief law enforcement officer of the that State, or political subdivision to coordinate efforts to investigate and protect
against-----
A) actual potential attack or hostile acts of a foreign power or an agent of a foreign power.
B) sabotage or international terrorism by a foreign power, or an agent of a foreign power.
C) clandestine intelligence activities by an intelligence service or network of foreign power, or an agent.
The next controversial question is the instance, to what extent can mass surveiling be done in data-mining and Terrorist Surveillance Programs. The Electronic Frontier foundation has filed a class law suit against AT&T, Hepting v. AT&T (pending 9th Circ.). Granted that in 2008, Congress gave retroactive immunity to telecommunication providers in assisting them with their surveillance goals—EFF raises the issues that the first ruling is unconstitutional because it doesn’t protect the privacy of en mass populations that is it supposed to protect and serve (http://www.eff.org/nsa/faq#39). The legal ramification as to how to ensure privacy protections of en masse U.S. citizens, who have not ties to “foreign powers” or are their agents, can be no guarantee that warrantless search via surveillance can be affirmatively ensured. This is the perplexing and thorny question, which FAA and the Hepting
raises, as to as to constitutional rule of law of government in its attempt to truly and legally surveil en masse populations; and how such measures for some kind of oversight can be secured?
Works cited other than your suggested readings-
Ditzion, R. Note: “Electronic Surveillance in the Internet Age: The Strange Case of Pen Registers,” 41 Am. Crim. L. Rev. 1321
Gubins, T. Note: “Warshak v. United State: the Katz for Electronic Communication,” 23 Berkely Tech. L.J. 723
URVEILLANCE, CRIME & PHILOSOPHY & CULTURE
Law Advisor: Dr. Adina Schwartz, JD. YALE LAW SCHOOL, PhD. Rockefeller University, Philosophia-Choeu-Lakyh
PhD Supervisor Mentor: Dr. F. Warren Ned Benton, BA. Grinell College, PhD-U of Illinois, Urba-Champaigne
LEGAL PHILOSOPHY OF CRIMINAL JUSTICE/LAW: Dr. John Kleinig, BDIV, University of Sydney, PhD. Australian National University, Cranberra
Graduate Center/CUNY-209
All Rights Reserved, Occidentalis-Orientalia Ipso Converso Digital Works Press,
E-CONFERENCES, LETTER DIGITAL PRO-LIST INST.,: SCPC
1. Pre-Postal Mail Surveillance: Mail Cover
Mail covers have been used by law enforcement officials and USPIS and Customs agents for the process (Krenn & Bem, personal communications, UPSIS, 2008) to record non-consensually any data appearing on the outside cover of any piece of sealed or unsealed mail matter, or by which a record is made of the contents of mail matter as allowed by law for the information for any of the following:
1) protecting national security.
2) locating a fugitive.
3) obtaining evidence of commission or attempted commission of a crime.
4)obtaining evidence of violation or attempted violation of a postal statute.
“Law enforcement agency is any authority” (Krenn et al) is any authority of the federal government, or any authority of a state or local government or any authority or local government, one whose function is to investigate the commission of acts constituting a crime, or protect national security. It is interesting to note that Section 233.3 from Title 39 Code of Federal Regulation (CFR 39) references the U.S. Postal Service’s policy does not distinguish between the process of mail covers for search and seizure purposes in different types of mailing, including the Intlelligent Mail Policy enacted in 1998 (UPS, Privacy Office, http://www.ups.com/privacy/intelligentmail.htm#2)
According to Weissmann (personal communications, USPIS, 2008) “the courts have established that a person has no reasonable expectation of privacy (“plain view”) information conveyed on the outside of his or her mail. Where there is no such expectation of privacy, the 4th Amendment does not apply. This court opinion in United States v. Choate, 576 F.2nd, 177 (9th Cir. 1978). This court argued that the content of the mail would be foreseeable to the postal employees.
However, importantly there are few caveats to the rule of the mail covers, and postal interception. The Supreme Court in United States v. Ramsey, 431 U.S. 606, in a majority opinion claimed that a required search warrant and probable cause is necessary to open mail at borders. LaFave writes, “Nothing that searches made at the border are reasonable simple by virtue of the fact that they occur at the border.” (LaFave, 2004; 10). The Court gave the same reasoning with international letters in the same case:
Justice White in his dissenting opinion writes:
Border searches, then from, before the adoption pf the Fourth Amendment, have been considered to be “reasonable” by the single fact that
the person or item in question has entered into our country from the outside. There have never been any additional requirements that the reasonableness of a border search depended on the existence of probable cause.
But the logic of the search and seizure of contraband in the Ramsey ruling, was that suspect was seized, and his effect search without a warrant and probable cause, which may have a false analog with a search in incident to arrest. If it was not technically an arrest or a “seizure” in respect to the fact that there were no use of a prior-mail cover, or that it were an exigent circumstance situation, or were it the case that there was solvent evidence that he was committing or attempting to commit an offense in the U.S----the fundamental importance in Ramsey is that the reasonableness standard, does not or should not procedurally follow a full blown search (without a warrant and probable cause) in border cross cases or international mail. In Ramsey the Court ruled it unconstitutional. The decision was reversed, and the evidence excluded.
As LaFave (2004: 263) significantly comments: “Certainly this later proscription is grounded in Fourth Amendment principle that evidence may not be introduced if it was discovered by means of a search and seizure which were not reasonable related in scope to the justification of the initiation, Terry v. Ohio, 392, U.S. 1(1968).” Dressler (1998) citing LaFave’s commentary (2004) explains the justification for the exclusionary rule was established in the Courts ruling in Mapp v. Ohio, 367, U.S. 643 (1961). The justification of the exclusionary rule “is to deter-to compel constitutional respect for the constitutional guarantee in the only available way—by removing the incentive to disregard it,” Elkins v. United States, 364, U.S. 206, 217 (1960). To get to the heart of the matter, the exclusionary rule suppresses the illegally and unconstitutionally obtained evidence; and aims to deter law enforcement officials that they will go about their police work or investigations through the violation of 4th Amendment. However, in United States v. Leon, 468 U.S. 897 (1984) the Court introduced what is known as the “good faith” exception, viz., when a police officer believes that he or she is executing a search warrant under the belief that it is valid, but for technical reason it was not an effective or valid one for technical reasons---which the police officer had no way of knowing after obtaining the evidence. In respect to the leading case of Ramsey, there was no probable cause, or search warrant, and hence the exclusionary rule was applied, without a “good faith exception.”
Part II. Telephonic Surveillance and the Law
Justice Brandeis, in his dissenting opinion, in Olmstead v. United States, 277 U.S. 438 (1928) said that message passed over telephonic wires should be protected under the 4th Amendment. The majority of the Court assented to the ruling that 4th Amendment protects property in which the wiretap devices were installed, and that it did not constitute a “search.” As Chief Justice Taft wrote: “The evidence was secured by the use of sense of hearing and that only. There was no entry of the house or offices of the defendants.” The police operation was conducted without a search warrant, moreover.
One year after the Title III, Omnibus Safe Street Act was enacted by Congress, there was a departure in the ruling of the Court in Katz v. United States, 389 U.S. (1967) in respect to telephonic surveillance. In contrast, Katz no longer no longer conforming to the “trespass of property” doctrine, presented problems of interpreting two standards of what constitutes a “search” in respect to the expectation of privacy. Justice Stewart stated: “the Fourth Amendment protects people, not property.” But the further equivocation in which the “tests” of reasonable expectation of privacy did not demarcate as to what constitutes “actual” and “subjective” test of reasonable expectation of privacy with implications on Post-Katz jurisprudence. Justice Stewart further writes: “what a person knowingly exposes to the public, even in his own home or office, is not subject of 4th Amendment protections.” But he further qualifies his opinion by stating that “what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected.” So Justice Harlan who concurred in the ruling raised the question of how does the Court interpret the procedural meaning of “search” in respect to the to the “actual” and “subjective” “reasonable” expectation of privacy in such a context. As to the question of the dualistic tests in regard to regard as to what constitutes a telephonic or cyburveillance search, the answer to this issue may be contingent on a practical-pragmatic conceptual clarification of how the courts have interpreted the test-standards of the “reasonableness” element in how much 4th Amendment privacy protection is afforded in the two pronged tests to defendants.
Moreover, Stephen Henderson (20005: 3) precisely brings about the complex problems of the Post-Katz jurisprudence in regard to the previously mentioned tests harkening back to Olmstead: “it was equally clear that this language did not encompass the mode (my emphasis) at issue, namely the transmission of the human voice via analog electronic signal.” Both Goldman v. United States, 316 U.S. 129 (1942), and Silverman v. United States, 365 U.S. 505 (1960) present problems that have not been fully overcome in the reasonable expectation of privacy tests, when given the consideration of “third party (interception) doctrine” (Ditzion, 2004; Gruber; 2008; Henderson, 2005).
The first transactional case of “third party doctrine” pertaining to the 4th Amendment was United States v. Miller, 442 U.S. 435 (1976) followed by Smith v. Maryland, U.S. 442 735 (1979). The issue of the bank releasing Miller’s bank record under grand subpoena was redressed by defendant’s move to suppress such a search by 4th Amendment protections.
According to Henderson (2005: 6), the banks had the right to preserve the financial information, in which Miller had no choice to deposit his financial transactions as a fact of the matter. The Court, however, ruled that “Miller had no protectable Fourth Amendment interests in the documents.” Such a question raises whether one has privacy interests in personal financial records, which cannot be subject to search by the state---which may or would lead to self-incrimination or governmental coercion without 4th Amendment protections.
A variant of this legal case scenario was followed by Smith v. Maryland. The question of this case is that does one have privacy interests when pen registers are used to trace dialed numbers. The Court ruled that one does not have reasonably subjective privacy interests when the dialed phone numbers are transmitted to third person telecommunication entity.
Gruber (2008) in her significant article makes the distinction between the two-pronged Katz tests as having been diminished to levels of “risk analysis” of 4th Amendment protections. She finds problems with the borderline distinction between what can be discerned as a legal epistemology of public space (“plain view searches, or new technologies that are intrusive to personal standards of privacy) and legitimate zones of private space, where police can conduct licit search and seizures. There are no guarantors and guarantees as to what reasonable expectation of privacy may definitively hold in binding situation as to whether the cost of risk outweighs the cost of being seized and searched, since Post-Katz jurisprudence has been interpreted by the courts on many differing levels and with varying outcomes. It may be a bit chaotic in what the future outcomes may hold for internet surveillance. In conclusion, Gruber raises the point that both socially normative and empirical verifications of a return to the reasonable expectations of privacy must hold onto the prior jurisprudential reasoning and decision-making of Katz.
III. E-Mail Interception & Remedies
Such technologies as e-mail pen registers pose certain problems in term of collecting non-content and content information. There is no clear law at present to determine whether such is the case or not, other than what Orin Kerr (2003) has previously said in the past that the government has the technology to collect both. E-mail pen registers have the capacity to collect URL, e-mail address and addressee, and header information. It is a debate whether this is content information, which is very different from telephonic pen registers which record dialed phoned numbers. This in murky waters may be tantamount to e-mail search. The question whether an ISP, as third party can give access to such information outside of FISA, on most cases standards of reasonableness to conduct an investigation under the PATRIOT ACT, and not probable cause, and a search warrant. Under Miller and Smith, under grand jury subpoena if it is criminal case, the conservative holding of these cases if relevant to e-mail interception is that there is little 4th Amendment protection for the defendant, when it involves third party ISPs.
Orin Kerr (2003: 2) presents a hypothetical case for suppression remedy as tantamount to principle of the exclusionary rule in regard to illegal e-mail interception. Kerr argues that Congress “should restructure the remedies scheme of Internet surveillance by statutory suppression remedy for violations of Internet surveillance statutes.” He intends to strike a balance between internet privacy needs and the role of law enforcement of not abusing police power though illegal searches, yet following the rule of law to perform their investigative and evidentiary function.
Kerr then a strikingly interesting question about why this matters to both internet privacy and 4th Amendment protection and third party interception doctrine. He writes:
“Why does this matter? It matters because the basic design of the Internet harnesses the disclosure, sharing, and exposure of information to many machines connected to the network. The internet seems almost custom-designed to frustrate the claims of broad Fourth Amendment protection: the Fourth Amendment does not protect information to third parties, and the Internet works by disclosing information to third parties.
……The user looks at the e-mail , copies, and then sends a copy across the Internet where it is seen by many other computers before it reaches the the recipient’s ISP…….While the e-mail seems like postal mail, it sent more like a post card, exposed during delivery.” (Kerr 2003:4).
The implication to this comment is a significant one. Third party interception is an automatic given which may be liable to the illicit abuse of hackers, and illicit reading of e-mails by ISP’s, and by the police, where they to conduct an illegal e-mail interception search. However, the Stored Communication Act forbids ISPs from disclosing information to the government exception in specific situation, mostly under the condition of probable cause, search warrant and grand subpoena (Kerr 2003: 5). The major point that Kerr concludes is that there is not enough protection of privacy under the 4th Amendment in contradistinction to physical searches and seizures; and that such remedies are not viable under Constitutional rules, but must be legislated through statutory remedies mediated by Congress.
IV. ECPA
Electronic Communication Privacy Act, 18 USC 2510 (1986) is a combination of the Wiretap Act (Title I) Stored Communication Act (Title II), Pen Register/Tap and Tract Act (Title III). The three titles cover the electronic (telephonic-voice mail) and e-mail, and other computer based electronic telecommunication devices, but less clear on how it delineates the “real time” interception in contradistinction to what was one once telephonic “wired communication”; and to what can be searched and seized in the stored communication retrieval of e-mails. (Mulligan, 2004). The PATRIOT Act extended the Wiretap Act to e-mail interceptions, as did pen register and tap/trace, with less restrictive measure due to the War on Terror (CCISP, DOJ: 20002). Other than for the Wiretap Act prior to the PATRIOT Act and FISA (Solove, 2004), there was a need for probable cause and search warrant by a Magistrate. But, now, the threshold has been lowered for Title I, and Title III, See 18 USC 2513, Title XVIII, Chapter 119, Sections, 2511, (4a), which was recently codified in 2008. In criminal cases, for telephonic wiretap the traditional case for probable cause and search warrant still holds. As for civil penalties there is imprisonment up to five years, (5) 25111, (5B) a mandatory fine up to $10,000 fine for each violation of the statute. But the borderline between where wire communication (physical telephonic surveillance) and e-mail surveillance differ in the application of ECPA, tend to favor less 4th Amendment protection for e-mail privacy to a greater degree.
In respect to standards, the Wiretap Act only permits certain types of high ranking officials to apply for the warrant. It requires probable cause, a super warrant, which requires specific description of where the interception will be intercepted, the type of communication, and the duration of the communication (Solove, 2004).
The Stored Communication Act is less stringent in its requirement to conduct a search than the Wiretap Act. Regular warrants are required to obtain the contents of 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 (Solove, 2004). There is no requirement for probable cause. All that is necessary for the search is that it is it “relevant” to conducting an investigation, as “articulable facts on reasonable grounds.”
The standard for the Pen Register/Tap and Trace Act is by far the least restrictive. There is no need on an evidentiary basis to utilize such devices, but requires a court order that is “relevant to investigation” on “reasonable” grounds. (Solove, 2004) Probable cause is not required.
However, as 18 USC 2518 (10) (a)(i) states that an aggrieved person of an illegal search may seek suppression remedies, when the communication was unlawfully ion and policy to reach the goal of protecting 4th Amendment e-mail privacy, without mere resort to Constitutional rules and interpretation.
USC 2520, Title XVIII specifies recovery of authorized civil damages. The civil remedy model for general violations of the Stored Communication Act is listed under sections 2511(2)(ii)[18 USC section 2510]; whereby the court shall assess the greater of the sum of actual damages suffered by the plaintiff, or statutory damages of not less $100, and not more than $1000 to one year imprisonment (Oyama, 2006).
Moreover, there is one very significant case that raises the issues with the ECPA (Title I, the Wiretap Act) and the Storage Communication Act: United States v. Councilman, 418 F. 3rd 67 (1st Cir, 2005) (en banc)
This was a controversial decision in which the Title I, as for electronic
communication in transmission did not have legal ramification or
conflicted with the “absence of the term of definition of electronic
(electronic storage, Title II). Oyama analyzes this problem that such an
omission was in the law of ECPA in where there no concordance in
how to resolve this legal non sequitur in the outcomes in the first decision favoring Councilman---though obviously can be read as a loophole in what Congress had intended to protect e-mail privacy via the process of interception, when e-mail is temporarily stored in electronic mailboxes of ISPs.
This problem is as much technological than just legal: Oyama (2006: 7) writes, “The First Circuit Court en banc decision to reverse should be commended. Councilman II created serious problems because e-mails always pass through temporary storage during transmission.” She suggests that Congress must reform the contradiction between Title I and II of ECPA, due to the future problems this may cause as it did in Councilman.
The other controversial and problematic case is Warshak v. United States, 532 F. 3d. 521 (2008) was a case of violation of 4th Amendment privacy protection rights based on preliminary injunction of warrantless searches on his e-mail disclosed by his ISP providers. Warshak argued that it was an unreasonable violation of expectation of privacy. The 6th Circuit avoided hypothetical constitutional issues, but pointed to the loop hole in the Stored Communication Act, but ruled on side of Warshak that the preliminary injunction could jeopardize 4th Amendment protections, unless as the government argued following the Title II statutory law. The majority of the court concluded it was an unreasonable violation of privacy, based on the controversial issue that the e-mail search is allowed to be conducted based on “reasonable grounds” on relevance to investigation, without jeopardizing personal safety, and evidentiary material. Here we have a leading case of divergence of interpretation of the limits of 4th amendment privacy protection and Title
II.
V. FAA
Foreign Surveillance Act Amendment (2008) first amended code in Title 1802 (a1) states:
1) Not withstanding any other law, the President through the Attorney General, may authorize electronic surveillance without a court order under this subchapter……up to one year if the Attorney General certifies in writing under oath that—
A) the electronic surveillance is solely directed at
i) the acquisition of contents used exclusively between or among foreign powers, as defined in section 1901 (a) (1) (2) (3).
ii) the acquisition of technical intelligence, other than spoken communication of individuals, from property or premises under the
exclusive control of a foreign power, as defined in section 1801 (a) (1), (2), (3) of this title.
B) there is no substantial likelihood that surveillance will acquire the contents and communications to which a United States person is a party; and
C) the proposed minimized procedures with respect to such surveillance with respect to meet the minimization procedures under section 1801 (h) of this title.
Moreover, in terms of “breaking down the wall between criminal investigation and intelligence gathering”—the newly amended Foreign Surveillance Act (2008) has made it clear Title 50, 1806 (k1):
Federal Officers who conduct electronic surveillance to acquire
Foreign intelligence under this subchapter may consult with Federal Law Enforcement personnel or State or political subdivision of the state (including the chief executive officer of the State or political subdivisions who has the authority to appoint
or direct the chief law enforcement officer of the that State, or political subdivision to coordinate efforts to investigate and protect
against-----
A) actual potential attack or hostile acts of a foreign power or an agent of a foreign power.
B) sabotage or international terrorism by a foreign power, or an agent of a foreign power.
C) clandestine intelligence activities by an intelligence service or network of foreign power, or an agent.
The next controversial question is the instance, to what extent can mass surveiling be done in data-mining and Terrorist Surveillance Programs. The Electronic Frontier foundation has filed a class law suit against AT&T, Hepting v. AT&T (pending 9th Circ.). Granted that in 2008, Congress gave retroactive immunity to telecommunication providers in assisting them with their surveillance goals—EFF raises the issues that the first ruling is unconstitutional because it doesn’t protect the privacy of en mass populations that is it supposed to protect and serve (http://www.eff.org/nsa/faq#39). The legal ramification as to how to ensure privacy protections of en masse U.S. citizens, who have not ties to “foreign powers” or are their agents, can be no guarantee that warrantless search via surveillance can be affirmatively ensured. This is the perplexing and thorny question, which FAA and the Hepting
raises, as to as to constitutional rule of law of government in its attempt to truly and legally surveil en masse populations; and how such measures for some kind of oversight can be secured?
Works cited other than your suggested readings-
Ditzion, R. Note: “Electronic Surveillance in the Internet Age: The Strange Case of Pen Registers,” 41 Am. Crim. L. Rev. 1321
Gubins, T. Note: “Warshak v. United State: the Katz for Electronic Communication,” 23 Berkely Tech. L.J. 723
URVEILLANCE, CRIME & PHILOSOPHY & CULTURE
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