Information Privacy Law - Privacy and Law Enforcement

Fourth Amendment

"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." AKA Fourth amendment regulates gov't activities in searching for information or items as well as the gov't's seizure of things or people

Fourth Amendment - Leading Cases: Dow Chemical Co. v. US (1986)

(1) The intimate activities associated with family privacy and the home and its curtilage simply do not reach the outdoor areas or spaces between structures and buildings of a manufacturing plant (no such thing as industrial curtilage); (2) Taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by 4A (such photos only reveal an outline of the facility's building and equipment, not intimate details) Dow facilities were hidden from public view, both at ground level and low air level. But could not afford to block plants from all aerial views. The EPA took photographs of the facility from 12,000, 3,000, and 1,200 feet. Aircraft was at all times within navigable airspace. Part of the holding relied on the sense enhancement technology used was in general public use, implying that would not be OK under plain view doctrine if not in public use.

Fourth Amendment - Leading Cases: Smith v. Maryland (US 1979)

(establishes third party doctrine) Held no reasonable expectation of privacy exists in the numbers that a person dials when the police record them with a pen register. The court reached this conclusion because (1) the numbers do not involve the "content" of the communications and (2) when a person conveys information to a third party (the phone company), that person must assume the risk that the company will reveal the information to others. McDonough was robbed. She gave a description of the robber and his car to the police. She later received harassing calls and the same car was outside her home. The police traced the license plate number to Michael Smith and installed a pen register on his phone to record his outgoing calls. Done without a warrant. From the pen register, learned that Smith had made a call to M's house. Police used this info to get a warrant to search Smith's residence and learned he was robber. Smith alleges 4A was violated.

State Law on 4A and 5A

- Most state constitutions have provisions similar to 4A and 5A - State courts have sometimes interpreted their state constitutional provisions as being more strict than the way the SCOTUS has interpreted 4A and 5A - States also have regulatory statutes - State officials bound by both state and federal law

FISA Amendments Act (FAA) (2008)

- Responds to increasing difficulty of identifying if callers are international or not - Explicitly permits collection of information from US telecommunications facilities where it is not possible in advance to know whether a communication is purely international or whether the communication involves a foreign power or its agents - Also gives retroactive immunity to telecom companies that participated in NSA warrantless surveillance of international telecom

When FISA authorizes surveillance WITHOUT a court order:

- The surveillance must be solely directed at obtaining intelligence exclusively from foreign powers - There must be no substantial likelihood that the surveillance will acquire the contents of any communications to which a US person is a party - President, through the AG, must authorize the surveillance in writing under oath

Fourth Amendment - Beeper Cases

- United States v. Knotts (US 1983): Police placed a beeper tracking device on a container that plaintiffs purchased and placed in their car. Court held that 4A did not apply to use of this device because a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another - Gov't surveillance in this instance amounted principally to the following of an automobile on public streets and highways - Jones distinguishes itself from this case by saying the beepers did not involve trespass United States v. Karo (US 1984): Police tracked plaintiff using a beeper into plaintiff's residence. Court held this amounted to an impermissible search of the residence.

Essential Points

1) There are fundamental distinctions between how the law regulates access by law enforcement to personal information and how it treats that of intelligence agencies. 2) The fourth amendment provides protection whenever a person has a reasonable expectation of privacy. Generally, though subject to numerous exceptions, the fourth amendment requires a warrant supported by probable cause in order for law enforcement officers to conduct a search. 3) Even if the fourth amendment does not apply, federal statutory law may require safeguards and impose process requirements on the governmental party seeking the information. The following federal statutes may apply: 1. ECPA, consisting of the Wiretap Act, Stored Communications Act, Pen Register Act; 2. Privacy Protection Act (PPA); 3. Right to Financial Privacy Act (RFPA) 4) States also may have statutes that regulate electronic surveillance and access to computers. In some states, these laws provide stricter privacy protections than their federal counterparts. 5) Highly intricate electronic surveillance law regulates the gov't's access to personal data. This area of law draws complex and sometimes confusing distinctions based on different types of communications ("wire communications," "oral communications" and "electronic communications") 6) Many electronic surveillance laws apply to the private sector and not just to the gov't 7) Under certain federal statutes, companies can be liable for disclosing data to law enforcement officials if the companies do not comply with legal standards 8) The gov't has a number of tools to access private-sector records. These include: - statutes with reporting requirements (e.g., Bank Secrecy Act), - National Security Letters, - Subpoenas 9) The fourth amendment does not apply to much gov't information gathering because of the third-party doctrine. Even if a company promises privacy, a customer lacks an expectation of privacy under the fourth amendment. 10) many federal privacy statutes provide for gov't access to records through court order or subpoena, which have loose standards for access, much lower the probable cause.

National Security and Foreign Intelligence: Essential Points

1. Although 4A regulates domestic criminal investigations and national security investigations, how 4A regulates foreign intelligence gathering with the US remains an open question 2. FISA is the main statute that regulates the gov't's electronic surveillance. It applies when foreign intelligence gathering is a "significant purpose" of the investigation 3. There are other legal authorities that permit the gathering of information for national security purposes, including National Security Letters

When No Warrant OR Probable Cause is Required

1. Consent to the search 2. Stop and Frisk: a brief stop can be made with reasonable suspicion crime is afoot and a frisk can be done for weapons. 3. Special Needs: Searches in schools or gov't workplaces must be reasonable under the circumstances 4. Administrative Searches: Searches for homes for code violations and of closely regulated businesses can be made without specific suspicion. 5. Checkpoints: Certain kinds of checkpoints do not require a warrant or probable cause if reasonable. 6. Border searches: The special need to collect duties and intercept contraband coming into the US often does not require probable suspicion.

When a Warrant isn't Required, BUT Probable Cause is Required

1. Exigent circumstances: no warrant is require if delay of obtaining it would endanger the public, permit escape, or allow destruction of evidence. 2. Plain View: Objects may be seized if there is probable cause to believe they are contraband or evidence of a crime. 3. Vehicle searches: Mobile vehicles can be searched if there is probable cause to believe they contain evidence of criminal activity 4. Arrests A person can be arrested without a warrant outside of her home 5. Searches incident to arrest: If there is probable cause to arrest, a search for weapons or evidence on the arrestee and in the immediate area is permissible

Key Facts about ECPA

1. The Wiretap Act provides the strongest level of protection, followed by SCA. The Pen Register Act provides the weakest level of protection. 2. ECPA applies not only to gov't officials but also to everyone. Private-sector employers and regular citizens are regulated 3. ECPA provides for an exclusionary rule only for Wiretap Act violations involving wire or oral communications 4. ECPA does not regulate silent video surveillance or location tracking devices 5. ECPA is a one-party consent statute--surveillance is permissible when only one party to a communication consents. Most state electronic surveillance statutes are one party consent, but several states have two-party consent statutes. In these states, all parties to the communication must consent to the surveillance.

Types of Communications in ECPA

1. Wire communications: All aural transfers that travel through a wire or similar medium. Aural transfer is a communication containing the human voice at any point even if the human voice is translated into code or tones. 2. Oral communications: A communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. Such communications are typically intercepted through burs or other recording or transmitting devices. 3. Electronic communications: Consists of all non-wire and non-oral communications (i.e., signals, data, images) that can be transmitted through a wide range of transmission mediums (wire as well as radio, electromagnetic, photoelectronic, etc.). E-mail is an example of an electronic communication.

Fourth Amendment - Leading Cases: Lopez v. United States (US 1936)

4A is NOT triggered by the recording of a conversation with a government agent because the device neither saw nor heard more than what the gov't agent saw or heard himself. The agent could testify about the entire conversation with or without the recording [e.g., gov't agents do not need a warrant to wear a wire] Lopez tried in federal court charging him with attempted bribery of an internal revenue agent. Evidence against Lopez had been obtained by a series of meetings between him and the agent, the last of which was recorded by Davis using a pocket wire recorder. Lopez moved to suppress the recorded conversation. Court relies on risk theory: if you break the law, you run the risk that the offer will be accurately reproduced in court by ... mechanical recording

Key Fourth Amendment Doctrines: Misplaced Trust Doctrine

A person has no 4A protection against being betrayed by an informant or undercover agent because the person assumes the risk of betrayal. Hoffa v. US

ECPA - Riley v. California (US 2014)

A warrant is required to search a cellphone after arrest because of all the private information stored on cellphones nowadays. Such information makes a cellphone qualitatively different from other physical papers or effects found on the arrestee's person. Law enforcement must either obtain a warrant or fall within the exigent circumstances exception. Riley was arrested and his smart phone was seized and searched by officers where they found evidence of street gang association and other crimes. Similar case with Wurie -- his flip phone was seized after arrest. After his arrest, the phone repeatedly received numbers from a caller named "My house" -- officers traced number to apartment building and obtained and executed a search warrant where found 215g of crack cocaine, marijuana, guns, etc. Both Wurie and Riley respectively moved to suppress cellphone evidence in violation of 4A.

Doctrines relating to Surveillance and the Use of Sense Enhancement Technologies - Open fields doctrine

An extension of plain view doctrine An individual does not have a reasonable expectation of privacy in the open fields that she owns. Oliver v. United States Exception: a house's curtilage (parts of one's property immediately outside one's home) do not fall within the open fields rule. - Test: is the area in question intimately tied to the house itself?

ECPA - Stored Communications Act (SCA)

Applies to: 1. accessing communications in "electronic storage" 2. records of ISPs Key Provisions: stored communications--requires the gov't to obtain via court order or warrant. ---> expanding category: more and more things are considered stored communications ISP records--requires the gov't to obtain a warrant or court order to access specified customer data held by ISPs, including name, address, length of service, means of payment, etc. Court order: Communications stored 180 days or less-- gov't must obtain warrant supported by probable cause Communications stored over 180 days (prior notice)-- gov't must provide prior notice to subscriber and obtain a subpoena or court order. Court order requires "specific and articulable facts showing that there are reasonable grounds" to believe communications are relevant to the criminal investigation. Communications stored over 180 days (no prior notice)-- if gov't does not provide prior notice to subscriber, it must obtain a warrant ISP records-- gov't must obtain court order; same standard as that for communications stored over 180 days Exceptions: consent-- SCA does not apply if the subscriber consents Service provider--SCA does not apply to accessing of stored communications by communications service providers Exclusionary rule: No Penalties: damages; up to one year imprisonment

ECPA - The Wiretap Act

Applies to: interception of communications in flight. Key Provisions: Interception: provides strict controls on the interception of communications. "Interception" is the acquiring of the contents of a communication through an electronic, mechanical, or other device while the communication is being transmitted. Court order: Applications for court order to intercept must contain details justifying the interception and information about how the interception will occur and its duration. These statutory standards are stricter than those that the Supreme Court has identified in 4A. Hence, the Wiretap Act is said to require a "super-warrant." The judge must find: 1. probable cause 2. That alternatives to interception have failed, are unlikely to succeed or will be too dangerous Orders must require that interception be conducted to "minimize the interception of the communications not otherwise subject to interception." Only high-level gov't prosecutors can apply for orders. Orders are limited to certain felonies ("predicate offenses") Exceptions: Consent--Title I does not apply if one party to the communication consents. Service provider--Title I does not apply to the interception of communications by a communication service provider. Exclusionary rule: Yes for wire and oral communications. No for electronic communications. Penalties: damages; up to 5 years imprisonment

ECPA - Pen Register Act

Applies to: pen registers or trap and trace devices Key provisions: Requires court order before installation of pen registers. A pen register is a device or process that records outgoing dialing, routing, addressing, or signaling information, but such information shall not include the contents of any communication. (e.g., Smith v. Maryland: pen register records non-content info unprotected by 4A) A trap or trace device is a device or process that captures incoming dialing, routing, addressing, and signaling information but such information shall not include the contents of any communication. Court order: The gov't must obtain a court order to install pen register and trap and trace devices. The court shall grant the order if the gov't has demonstrated that "the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." The Act does not authorize judicial investigation of the substantive merits of the request. Exceptions: Service provider-- the pen register act does not apply to the use of a pen register or trap and trace device by a communications service provider relating to the provision of the service. Abuse protection-- the act does not apply when a communications service provider records the existence of the communication to protect against unlawful or abusive use of the service. Consent-- the act does not apply if the user consents. exclusionary rule: no penalties: fines; up to one year imprisonment

Telecommunications services versus Information services

Communications Act of 1996 and FCC have broad authority over "telecommunications services. This area of law regulates so-called "information services" less intensely Distinction between two areas of law is fuzzy (at best)

ECPA - United States v. Warshak (6th Cir. 2010)

Compelling an ISP to turn over the contents of a subscriber's emails violates a reasonable expectation of privacy--and hence violates the 4A--even though the ISP itself may have access to the e-mails. Put another way: A subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP. The gov't may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause. The SCA is unconstitutional to the extent it purports otherwise. Warshak was convicted for fraudulent business practices. Sought to exclude from evidence about 27,000 of his private e-mails seized from his ISP. Trial court denied the motion.

Fourth Amendment - Leading Cases: United States v. Place (US 1983)

Court held that a canine sniff by a narcotics detection dog does not infringe upon a reasonable expectation of privacy. - Because does not require opening luggage or exposing noncontraband items that would otherwise remain hidden from public view. - The manner by which information is obtained is much less intrusive than a typical search

ECPA - United States v. Forrester (9th Cir. 2008)

E-mail headers and IP addresses are akin to pen registers and have no 4A protection. The 9th Circuit notes in dicta that URLs might be more constitutionally problematic because a URL identifies the particular document within a website that a person views and thus reveals much more information about the person's internet activity. Forrester and Alba convicted of manufacturing ecstasy based in part on evidence obtained using mirror port (equivalent of pen register for computers). Received court permission.

Fourth Amendment - Leading Cases: Terry v. Ohio (US 1968)

Establishes "stop and frisk" searches are NOT unconstitutional/unreasonable searches under 4A. A police officer can "stop" an individual if the officer has "reasonable suspicion" that criminal activity is afoot. During the stop, the officer may "frisk" an individual for weapons if the officer has reasonable suspicion that the person is armed and dangerous.

Electronic Surveillance Law and the Fourth Amendment

Even if search is reasonable under the 4th Amendment, electronic surveillance law may bar the evidence. Even if search is authorized by a judge under federal electronic surveillance law, the 4th Am could still prohibit the evidence. Government can covertly enter residence or private property to install bugs and other surveillance devices pursuant to valid warrant.

USA Patriot Act

Extends the Pen Register Act to include "dialing, routing, addressing, or signaling information." - I.e., expands definition of pen register to include internet addresses, email addressing information, and routing information of a wide spectrum of communications Allows sneak and peek warrants: enables the gov't to delay notice if the court concludes that there is reasonable cause that immediate notice will create an adverse result such as physical danger, the destruction of evidence, delayed trial, flight from prosecution, and other circumstances Provides a private right of action against the US for any willful violations

Foreign Intelligence Surveillance Act (FISA)

FISA establishes standards and procedures for the gov't's use of electronic surveillance to collect foreign intelligence within the US. FISA requires the gov't, if seeking evidence of domestic security violations, to follow the authorities granted by the usual criminal law. FISA permits real time electronic surveillance (as under Wiretap Act and Pen Register Act) and access to stored electronic communication (as under SCA) - includes video surveillance with a court order FISA court reviews government's request for FISA orders ex parte Test to determine if FISA applies: is foreign intelligence gathering "a significant purpose"of the investigation?

FISA Court Orders

FISA orders are granted when the FISC finds probable cause that the party to be monitored is a "foreign power" or "an agent of a foreign power." Therefore, unlike ECPA or 4A, FISA surveillance is not tied to any required showing of a connection to criminal activity. However, if the monitored party is a US person the gov't must establish probable cause that the party's activities may or are about to involve a criminal violation. Under special limited circumstances, FISA authorizes surveillance without having to first obtain a court order.

Foreign Intelligence Gathering - Leading Case: Global Relief Foundation, Inc. v. O'Neil (N.D. Ill. 2002)

FISA used broadly to authorize information collection re national security in wake of 9/11. - FISA emergency exception allows AG to declare an emergency situation exists with respect to the execution of a search to obtain foreign intelligence information Ct here concludes that the FISA application to the FISC established probable cause to believe that Global Relief was agent of foreign power. FBI arrived at corporate headquarters of Global Relief, a US based Islamic humanitarian relief organization, and home of its executive director and seized a considerable amount of material without a warrant.

The Intelligence Community

Federal Bureau of Investigation (FBI) - Focus on domestic criminal investigations involving federal crimes - Also has intelligence, counterintelligence, and counterterrorism functions Central Intelligence Agency (CIA) National Security Agency (NSA) - Engaged in large-scale information gathering activities Other intelligence agencies

Fifth Amendment

Fifth amendment guarantees that no person shall be compelled in any criminal case to be a witness against himself - Establishes a privilege against self-incrimination and it prohibits gov't from compelling individuals to disclose inculpatory information about themselves

Upcoming Legal Issue and How it Will Interact With 4A: Drones

How case law might impact drones: o Riley: do drones operate at a lawful vantage point? Publicly navigable airspace? Likely o Kyllo - technology in public use? Yes. Does police activity implicate home interior? More complicated—e.g., a insect-sized drone looking through a window could see more than someone from a sidewalk o Jones - return to property concepts? Is there a need for trespass? Maybe. o Katz- 4A protects people not places? What if a drone records someone in their home from outside? Under Harlan, likely not okay and see opinion about lady in her home expects privacy (Dow?)

Key Fourth Amendment Doctrines: Third Party Doctrine

If a person exposes information to a third party, she can no longer expect privacy in that information. US v. Miller; Smith v. Maryland.

Key Fourth Amendment Doctrines: Plain View Doctrine

If something is seen in plain view, it is not a search and does not trigger any 4A protection. Harris v. US

How the Fourth Amendment Works

In fourth amendment cases, a court must answer two questions: 1. Is 4A applicable? The gov't must engage in a "search" or "seizure" of an object, document, or person in order to trigger 4A protection. A search occurs whenever a gov't invades a person's reasonable expectation of privacy and that expectation is one society is prepared to recognize as reasonable. See Harlan concurrence in Katz. A seizure occurs when gov't officials exercise control over a person or thing (e.g., when police take away items or a person). 2. If 4A applies, is the search reasonable? Generally, a search is reasonable if gov't officials obtained a search warrant supported by probable cause. (There are a few, rare exceptions to this requirement.) Probable cause exists when a reasonable person would believe that the place to be searched will turn up evidence of a crime or that the person arrested committed a crime. PC requires more than mere suspicion and is determined on a case by case basis. A search without a warrant and probable cause is often deemed unreasonable, but there are exceptions to the warrant and probable cause requirements, such as: - exigent circumstances, plain view doctrine, automobile searches incident to arrest, stop and frisk, and the special needs doctrine. Evidence obtained in violation of the 4A is generally to be excluded from trial. But there are are a number of exceptions to this rule.

Does CALEA cover Skype?

Is Skype a free peer-to-peer service that uses PC's and computer devices that access the internet? Is it an information service? Or is it an "interconnected" VoIP provider and hence a telecom service subject to CALEA? Answer: It appears that Skype is not currently complying with CALEA

Fourth Amendment - Leading Cases: United States v. Jones (US 2012)

Law enforcement's installation of a GPS device in a car without a warrant is a search under 4A because it represents a trespass on a person's property. Concurring opinions also argue that the use of extensive long-term surveillance violates a reasonable expectation of privacy. (1) A vehicle is an "effect" as that term is used in the fourth amendment; (2) The gov't's installation of a GPS device on a target's vehicle and its use of that device to monitor the vehicle's movements constitutes a "search" After obtaining a warrant, police placed a GPS tracking device on Jones's car on suspicion he was trafficking narcotics. The warrant only authorized installation of the device. The device established the vehicle's location within 50 to 100 feet and communicated that location by cellphone to a gov't computer. Over 2,000 pages of data were collected in a month. o This case hints law is shifting back to Olmstead (but in opinion, states that Katz was added to not substituted for the common law trespassory test) Sotomayor, concur: - Need to consider the existence of a reasonable societal expectation of privacy in the sum of one's movements - May be necessary to reconsider the third-party doctrine - This doctrine is ill suited to the digital age - Secrecy should not be a prerequisite to privacy in 4A cases Alito, concur: - Shouldn't apply historical view of founders to decide a - Among the flaws of the majority's reliance on trespass law: it won't apply if police activate a stolen vehicle detection system that is already installed in the car - Long term GPS monitoring of location impinges on expectations of privacy This case is before connected cars; illustrates how the existing precedents for this case are in a fascinating moment of instability.

Standing to Sue Under FISA - Leading Case: Clapper v. Amnesty International USA (US 2013)

Lawyers, journalists, human rights advocates or others that necessarily communicate with potential targets of foreign intelligence gathering do not have standing to challenge FISA based solely on the potential for future injury and expenditures to prevent future injury. [some debate about the imminence of the future/speculated injury] They challenged a section of FISA, and in a 5-4 opinion the court held the challengers lacked standing because they could not demonstrate a threatened injury that was certainly impending. Plaintiffs could point only to a speculative chain of possibilities.

Fourth Amendment - Leading Cases: Carpenter v. US (US 2018)

Location data, like GPS, hold for many Americans the privacies of life (familial, political, professional, religious, and sexual associations). When the gov't tracks with cell site data, achieves near perfect surveillance because individuals so infrequently without their phones (unlike cars, bring into private spaces). Gov't can also travel back in time to retrace a person's movements. Thus, when gov't accessed cell site records, invaded Carpenter's reasonable expectation of privacy. Obtaining and using cell site records are a "search" within meaning of 4A and require a warrant supported by probable cause. [NOT AN APPLICATION OF THIRD PARTY DOCTRINE; COURT DECLINES TO USE] Police arrested four men suspected of robbing a series of Radio Shacks and T-Mobile stores in Detroit. One of the men confessed they had robbed more and identified 15 other accomplices and gave the FBI some of their cell information. Police obtained a court order based on Stored Communications Act to obtain cell phone records for petitioner Carpenter. Once granted, were able to look at his CSLI and track his movements. Carpenter moved to suppress the cell site data on ground that violated 4A because had not obtained a warrant. Court also says holding is narrow: Does not apply to real time CSLI or "tower dumps" (a download of information on all devices that connected to a particular cell site during a particular interval). Many of the judges dissented on various theories: Kennedy, dissent: Would apply third party doctrine Cell site records are no different from other business records Customers do not own, possess, control, or use the records and for that reason have no reasonable expectation that they can be disclosed pursuant to lawful compulsory process Abandons property-based concepts that underpin 4A • Even Katz is property based Subpoena is adequate Thomas, dissent: Cell site data not property of Carpenter's but of cell companies 4A inquiry is: whose property is being searched Katz test has no basis in text or history of 4A Alito, dissent: Agree that new technology is invasive of personal privacy but thinks holding is dangerous and will threaten law enforcement Holding does not distinguish between an actual search and an order to produce documents Allows a defendant to object to a search of a third party's property Gorsuch, dissent: Katz is bad law

Silent Video Surveillance Covered by Federal Surveillance Law?

No.

Foreign Intelligence Gathering - Leading Cases: Untied States v. Isa (8th Cir. 1991)

Notwithstanding the minimization procedures, FISA authorizes the retention of information that is evidence of a crime and the crime does not need to be related to foreign intelligence gathering. FBI bugged the home of Zein Hassan Isa and his wife, Maria on belief he was an agent of the Palestine Liberation Organization. The FBI inadvertently recorded Zein and his wife murder his daughter. The Isa's move to suppress the tapes on ground that the recording is not related to foreign intelligence gathering

Doctrines relating to Surveillance and the Use of Sense Enhancement Technologies - Plain View Doctrine

Objects falling within the plain view of an officer who has a right to be in a position to have that view are subject to seizure and may be introduced into evidence. Harris v. US. i.e., if it is possible for something to be seen or heard from a public vantage point, there can be no reasonable expectation of privacy

Fourth Amendment - Leading Cases: Katz v. United States (US 1967) [contains reasonable expectation of privacy test in Harlan's concurrence]

Overturns Olmstead. Relying on Brandeis's dissent, the court holds 4A protects people, not only places, and thus does not require a physical intrusion into any given enclosure. Harlan's concurrence sets out the reasonable expectation of privacy test for 4A, which the majority of the Supreme Court later adopted as its governing standard to determine whether a search falls under the scope of the 4A. Harlan's concurrence: Twofold requirement for 4A [reasonable expectation of privacy test]: 1. Whether person has actual, subjective expectation of privacy (subjective) 2. And that expectation be one that society is prepared to recognize as reasonable (objective) Plaintiff convicted of sending wagering information over the phone from LA to Miami. Evidence was obtained from wiretapping a public telephone booth the plaintiff had placed his calls from.

Fourth Amendment - Leading Cases: Florida v. Riley (US 1989)

Plain view doctrine extends to air surveillance in addition to ground surveillance. The 4A is not triggered by the police flying a helicopter over a greenhouse and peering from above through the greenhouse's missing roof panels. There is no reasonable expectation of privacy if something is visible from a vantage point accessible to the public. An anonymous tip told police Riley was growing marijuana on his property. Police could not see any plants while driving around his property, but were able to see what looked like marijuana from a helicopter 400ft above a hole in his greenhouse. As a result, obtained a warrant and subsequent search revealed marijuana was being grown on the property. Brennan, dissent: Vantage point of police was not one everyone could share; not on a public road Simple inquiry of whether officer had right to be in that position is not enough Compares police surveillance used here to Orwell's 1984

The Communications Assistance for Law Enforcement Act of 1994 (CALEA)

Primary function: Requires telecom providers to help facilitate the government's ability to execute legally authorized surveillance. Networks must be designed so telecom providers can isolate and intercept electronic communications and be able to develop them to law enforcement personnel Facilitate law enforcement access: all telecommunications providers are required to be able to isolate and intercept electronic communications and be able to deliver them to law enforcement personnel Privacy and security: Must comply with CALEA in a way that still protects the privacy and security of communications and call-identifying information not authorized to be intercepted Limitations: CALEA does NOT apply to information services (e.g., email and internet access) [a telecommunications service is not an information service] - information service providers do not need to design their networks to be accessible to law enforcement agencies. - But applies to Voice Over Internet Protocol (VoIP) services even if internet access provider - That is VoIP services that: 1) enables real-time, two-way voice communications; 2) requires a broadband connection; 3) requires IP-compatible customer equipment; and 4) permit subscribers to receive calls from and place calls to the Public Switched Telephone Network

4A, National Security, and Foreign Intelligence - Leading Cases: United States v. U.S. District Court (US 1972)

Rejects Nixon administration argument that 4A does not apply when the president conducts electronic surveillance for domestic national security investigations. "Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech" Notes that domestic security surveillance "may involve different policy and practical considerations from the surveillance of ordinary crime," and concludes that "different standards may be compatible with the 4A if they are reasonable both in relation to the legitimate need of gov't for intelligence information and the protected rights of citizens." Three founding members of "White Panthers" (a group dedicated to abolishing money) bombed a CIA office in Michigan. The gov't wiretapped the phone calls of one of the bombers when it was investigating the bombing. Though Katz held wiretapping required a warrant and Congress subsequently passed the wiretap act that required a special court order, the Nixon administration held the surveillance did not need a warrant because it involved a matter of national security.

Foreign Intelligence Surveillance Court (FISC)

Requests for FISA orders are reviewed by a special court of 11 federal district court judges Proceedings are ex parte, with the DOJ making the applications to the court on behalf of the CIA and other agencies Court meets in secret and its proceedings are generally not revealed to the public or to the targets of the surveillance

ECPA - United States v. Hambrick (W.D. Va. 1999)

Risk analysis approach to second prong of Katz test: information given to an ISP that can be given to non-governmental entities is not protected by 4A because there is no reasonable expectation of privacy in that information (relies on third party doctrine). ECPA does not assist because the sole remedy under the SCA not suppression. Hence, ECPA does not represent a legislative determination of reasonable expectation of privacy in info at stake in this case. Undercover police agent discovered an online user in chatroom trying to entice a 14 year old to live with him in New Hampshire. Chat room called "Gay Dads 4 Sex." A state subpoena allowed the officer to obtain identifying information from ISP. The subpoena was improper.

Foreign Intelligence Surveillance National Security Letters: the Statute

Several statutes permit the FBI to demand personal info from third parties when relevant to foreign intelligence gathering or terrorism investigations, with use of National Security Letter: - Including Pen Register Act and SCA, but not Wiretap Act Test: is information "relevant to an authorized foreign counterintelligence investigation"? Recipient of NSL may petition court for an order to set aside or modify the request Controversial "gag order" provision (limited to 3 years)

Federal Electronic Surveillance Law - Electronic Communications Privacy Act of 1986 (ECPA)

The ECPA amended Title III (the Wiretap Act) and also included two new acts in response to developments in computer technology and communication networks. As a result, federal electronic surveillance law for domestic law enforcement agencies contain three parts: 1. Wiretap Act (updated version of Title III) 2. Stored Communications Act (SCA) 3. Pen Register Act

Test for surveillance under FISA

The court must find probable cause that the party to be monitored is a "foreign power" or "an agent of a foreign power." Section 1801. - Any entity, such as political organization or business, that a foreign gov't directs or controls - Doesn't need to be a hostile party--can be an ally or neutral - Foreign power can be an established country or groups engaged in international terrorism ---> Problem of international terrorism is that it's stateless - No required showing of criminal activity as under ECPA - But if the target is a US person, then the gov't must establish probable cause that the party's activities may or are about to involve a criminal violation. Section 1801(b)(2)(A)

Fourth Amendment - Historical Case: Olmstead v. US (US 1928)

The majority holds 4A does not prohibit wiretapping because wiretapping is a form of information gathering that is neither a search nor a seizure. It secures information through hearing only and there is no trespass on someone's physical property. 4A is only triggered when there is a physical trespass. Petitioners convicted for violating anti-prohibition act. Incriminating information obtained through intercepting messages on telephones of conspirators by four federal officers. The interception was physically established without trespass upon property. Majority relies on Misplaced Trust Doctrine: • Under the misplaced trust doctrine, people place their trust in others at their own peril and must assume the risk of betrayal • A bunch of cases on topic o Hoffa v. US o Lewis v. US o Court says deceptions by the undercover agent are not constitutionally forbidden because no constitutional protection/recognized privacy interest for the loyalty of friends--should have just picked your friends more wisely Dissent by Brandeis: 4A should protect against wiretapping—no difference between protecting the contents of someone's mail and the contents of a telephone call. The right to be let alone is protected by the constitution.

State Electronic Surveillance Law

The vast majority of states have electronic surveillance statutes. Many are quite similar to ECPA. The majority, like ECPA, permit surveillance if one party to a communication consents. But several states have all-party consent laws, requiring all parties to a communication to consent. Many people unwittingly violate all-party consent statutes. If they secretly record a conversation between themselves and another person, they violate this kind of statute. If a person records a call made from a one-party consent state to an all-party consent state, the law of the all party consent state governs. Kearney v. Salomon Smith Barney (Cal. 2006) Courts split on whether recording police officers is OK when a police officer does not consent. Some courts have held 1A prohibits the criminalization of secretly recording encounters with police when performing official duties.

ECPA - United States v. Andrus (10th Cir.)

Third party apparent authority to consent to search of computer test: federal officers may bypass password protection without making a reasonable inquiry into third party's access to that password if circumstances would lead a reasonable officer to believe the third party had access, and this is sufficient to establish voluntary consent to a police search without a warrant. Federal authorities believed that Ray Andrus was downloading child pornography to his home computer. Ray lived at home. Authorities obtained consent from his father to search the home and any computers in the home. Were able to bypass Ray's computer password and discover child pornography on his computer. His father did not know his password. Factors that led officers to believe father had apparent authority over property to consent to search: - Andrus owned house and lived there - Paid internet bill - Officers knew Andrus had access to the room at will - Computer was in plain view in room and was available for access by other family members - Andrus did not say or do anything to indicate lack of ownership or control over computer

Fourth Amendment - Leading Cases: United States v. Miller (US 1976)

Third party doctrine also applies to bank records. No expectation in information such as bank records that are voluntarily turned over to third parties.

Fourth Amendment - Leading Cases: United States v. White (US 1971)

Third party monitoring of a conversation with a defendant and government informant without a warrant is NOT protected by the fourth amendment. This case suggests that the misplaced trust doctrine in Hoffa, Lewis, and Lopez survives after Katz. - Under the misplaced trust doctrine, people place their trust in others at their own peril and must assume the risk of betrayal. White was tried and convicted related to various illegal narcotic transactions. The evidence used was from conversations between White and a government informant overheard by agents who were monitoring the frequency of a radio transmitter carried by the informant and concealed on his person. On four occasions, the conversations took place in the informant's home. The agent would be in the kitchen closet with the informant's consent and another agent would be outside with the radio. The informant was unavailable for trial.

Fourth Amendment - Leading Cases: California v. Greenwood (US 1988)

Trash left out in public to be picked up by third party (e.g., trash collectors) is NOT protected by the 4A from warrantless searches and seizures. There is no objectively reasonable expectation of privacy in plastic garbage bags left on or at a side of a public street. Such bags are readily accessible to "animals, children, scavengers, snoops, and other members of the public." Police investigators searched plastic garbage bags that Greenwood had left on curb to be picked up by trash collectors in front of his house. Found indications of drug use and obtained a warrant to search house. In house, found evidence of drug trafficking. Greenwood was arrested. NOTE: holding could extend to DNA collection by police - idea that things left in a public area are suitable for public inspection so no reasonable expectation of privacy in those things (the cup left in public with DNA on it)

Why is Clapper a troubling ruling?

Troubling ruling because unable to show injury in fact because surveillance is secret - Wouldn't come out until discovery in trial - Catch-22 - Rejects 2nd circuit's test "objectively reasonable likelihood" that litigant's communications will be intercepted in future Dissent (Breyer) -- you can have an inference; there is a very strong likelihood that gov't is going to engage in surveillance under 1881a - Goes through a number of factors that support this contention

Key Fourth Amendment Doctrines: Special Needs Doctrine

Under certain circumstances, typically when searches are by non-law enforcement gov't officials (school officials, gov't employers), a search need only be reasonable. O'Connor v. Ortega

ECPA - Steve Jackson Games Inc. v. US Secret Service (5th Cir. 1994)

Unread emails in storage that are seized are not considered "intercepted transmissions" for purposes of wiretap act; they are electronic storage covered by SCA. BBS computers were seized with warrant but contained 162 items of private, unread email from BBS subscribers. Appellants emails were on servers and file suit against secret service agents and US for violation of wiretap act and ECPA. NOTE: Previously read email stored on ISP is still protected by Stored Communications Act. Theofel v. Farey-Jones (9th Cir. 2004)

Fourth Amendment - Leading Cases: Kyle v. United States (US 2001)

Use of a thermal imaging device to monitor activities in a home triggers 4A protection because of the importance of protecting privacy at home and the fact that the thermal imaging device is not in general public use. In particular the device was used to explore details of a home that would previously have been unknowable without physical intrusion. This impinges on one's ability to retreat into the home. Indoor marijuana requires high-intensity heat lamps. Police officers used heat imaging camera to see if Kyllo had such lamps in his home. Based on images, tips, and utility bills, obtained a search warrant and found indoor growing operation.

4A and Foreign Intelligence

Whether 4A applies differently to national security situations than foreign intelligence gathering is somewhat unresolved.