Law Enforcement & Government
Required redactions in Court Filings
(1) All but the last four digits of the Social Security number and taxpayer-identification number; (2) Only the year of the individual's birth; (3) if the individual is a minor, only the minor's initials, and (4) All but the last four digits of the financial account number.
What information must litigants redact from court papers?
1. All but last 4 digits of SSN 2. Year of birth 3. All but initials if a minor 4. All but last 4 digits of financial account number
Anti-Money Laundering Laws
1. Bank Secrecy Act of 1970 (Currency and Foreign Transaction Reporting Act of 1970) 2. Record Retention Requirements 3. Suspicious Activity Reports 4. The International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 5. Patriot Act- Know Your Customer
What are the penalties for violations of the Bank Secrecy Act?
1. Civil penalties with fines up to the greater of $25,000 or the amount of the transaction (up to $100K max) 2. Penalties for negligence of $500 per violation 3. Failure to comply with regulations up to $5,000/day 4. Failure to comply with information sharing requirements of Patriot Act of $25,000/day. 5. Failure to comply with due diligence requirements of up to $1,000,000. 6. Criminal penalties up to $100,000 and/or imprisonment.
What are the conditions under the Right to Financial Privacy Act that allow disclosure?
1. Customer authorizes access 2. Administrative subpoena or summons 3. Qualified search warrant 4. Judicial subpoena 5. Formal written request from an authorized government authority.
Foreign Intelligence Surveillance Act of 1978
1. Foreign intelligence gathering 2. No disclosure of the order or the subject of it 3. Orders applied to wiretap, pen register/trap and trace, video surveillance
What factors are used when invoking The Hague Convention on the Taking of Evidence?
1. Importance of the documents or data to the litigation. 2. Specificity of the request 3. Whether info originated in the US 4. Availability of alternative means of securing the info 5. Extent the important interests of the US and the foreign state would be undermined by an adverse ruling.
Who is protected by the RFPA?
1. Individuals 2. Partnerships with less than 5 people
When is disclosure to law enforcement permitted under HIPAA?
1. Information sought is relevant and material to a legitimate law enforcement inquiry 2. Request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought 3. De-identified information could not reasonably be used
What are the categories of requirements under the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001
1. Information-sharing regulations and participation in the cooperative efforts to deter money laundering. 2. Know Your Customer rules, including the identification of beneficial owners of accounts. 3. Development and implementation of formal money-laundering programs. 4. Bank Secrecy Act expansions, including new reporting and record-keeping requirements for different industries.
What must a Federal subpoena contain?
1. Issuing court 2. Title of the action, court and docket number 3. Command to do something at a specific time/place 4. Set out the text of the rules for challenging subpoena
What are some exceptions to the prohibition on intercepting electronic and wire conversations?
1. One party consent (some states require 2) 2. Interception in the ordinary course of business (ie monitoring employee email traffic)
When can law enforcement intercept a computer trespasser (hacker) communications?
1. Permission from owner of hacked system; 2. Acting under color of law; 3. Reasonable grounds to believe the communications are relevant to the investigation; and 4. The interception doesn't acquire transmissions other than those transmitted by hacker
For what types of records is a more senior official required to apply under a Section 215 Order?
1. Records of library use 2. Book sales 3. Firearms sales 4. Tax returns 5. Educational records 6. Medical records
When must a Suspicious Activity Report be filed under the Bank Secrecy Act of 1970?
1. When a financial insitution suspects that an insider is committing a crime, regardless of dollar amount. 2. when the entity detects a possible crime involving $5,000 or more and has a substantial basis for identifying a suspect. 3. when the entity detects a possible crime involving $25,000 or more even if it can't identify a suspect. 4. when the entity suspects currency transactions aggregating $5,000 or more that involve potential money laundering or a violation of the act.
What are the exceptions to the PPA?
1. When the media member is in the process of committing a crime 2. Preventing serious injury or death 3. Reason to believe docs will be destroyed if have to get a subpoena
Telephone Wiretap Law Legal Case Developments
1928: Olmstead case: Wiretap was off premises. Court held No 4th amendment violation because not a search but a wiretap. 1967: Katz v. US-- Katz a suspected gambler. Conducting in a phone booth. Wire tap put in the phone booth. Court found violation of 4th amendment because expectation of privacy in phone booth. Wire tap was on the individual rather than the physical location. 2012: US v. Jones-- Suspected drug dealer. Warrant to put GPS tracker on car for 30 days. Tracker stayed on for 60 days. Info gained was obtained after the first 30 days. Court found you need a warrant to put a GPS tracker on a car.
Freedom of Information Act
A U.S. federal law that ensures citizen access to federal government agency records. FOIA only applies to federal executive branch documents. It does not apply to legislative or judicial records. FOIA requests will be fulfilled unless they are subject to nine specific exemptions. Most states have some state level equivalent of FOIA. The federal and most state FOIA statutes include a specific exemption for personal information so that sensitive data (such as Social Security numbers) are not disclosed.
Bank Secrecy Act
A U.S. federal law that requires U.S. financial institutions and money services businesses (MSBs), which are entities that sell money orders or provide cash transfer services, to record, retain and report certain financial transactions to the federal government. This requirement is meant to assist the government in the investigation of money laundering, tax evasion, terrorist financing and various other domestic and international criminal activities.
USA Patriot Act Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
A broad-ranging act designed to counter terrorism that expanded law enforcement authority to surveillance and capturing communications and records. Section 215: a court order can be obtained to get 1. "any tangible thing" 2. FBI officials of a certain risk could obtain it except for certain things which required more senior people involved. 3. Cannot disclose receipt of an order except to counsel 4. National security letters (subpoena)- records had to be relevant to international terrorism. 5. Recipient of a letter can petition to set aside the letter if compliance is unreasonable, but still could not disclose the receipt of the letter. 6. Ran out in 2015. Replaced by US Freedom Act
Semayne's Case
A case recognized as establishing the "knock-and-announce rule," an important concept relating to privacy in one's home and Fourth Amendment search and seizure jurisprudence.
National Security Letter
A category of subpoena. The USA PATRIOT Act expanded the use of NSLs. Separate and sometimes differing statutory provisions now govern access, without a court order, to communication providers, financial institutions, consumer credit agencies and travel agencies.
What is a Pen Register?
A recording of the telephone numbers of outgoing calls.
Who issues a FISA order?
A special court of federal district judges, with the DOJ making the application.
Electronic Communications Privacy Act of 1986 (ECPA) extended the protection to what type of communication?
Any communication that isn't wire or oral, including e-mails.
Wiretap Act governs what type of communication?
Any oral communication uttered by a person exhibiting an expectation that it would not be subject to interception under circumstances justifying that expectation. Examples: wiretapping phone calls or using listening devices.
What is a National Security Letter?
Can be issued by authorized officials to seek records relevant to international terrorism or clandestine intelligence.
What does the Right to Financial Privacy Act prohibit?
Disclosure of financial records to a Government authority unless one of five conditions is met.
What does the Privacy Protection Act prohibit?
Government officials engaged in criminal investigations are not permitted to search or seize media work products or documentary materials reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other form of communication.
Exception to the Privacy Protection Act of 1980
If the journalist is the subject of the investigation their work is not protected
When must a recipient keep a National Security Letter confidential?
If the the requesting agency indicates it would be interference with a criminal or counterrorism investigation.
Who does the Privacy Protection Act cover?
Members of the media and media organizations
US Freedom Act Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline over Monitoring Act of 2015
NSA cannot any longer capture pen register/trap and trace information. Now requires a warrant. Reinstated several provisions of Patriot Act Now a privacy professional in the FISA court to provide guidance. Allows company disclosure of the number of times the government asked for data access
US Communications Assistance for Law Enforcement Act of
Need to be able to provide facilities to law enforcement to look at or access information or communications.
Right to Financial Privacy Act of 1978
No government authority may have access to or obtain copies of, or the information contained in the financial records of any customer from a financial institution unless the financial records are reasonably described.
Is a Court order needed for a National Security Letter?
No, but the recipient can petition the court to modify or set it aside.
Are CCTV cameras within the scope of the Wiretap Act?
No. If it doesn't have sound.
What do Section 215 Orders under the Patriot Act allow?
Production of "any tangible thing" for foreign intelligence and anti-terrorism investigations.
Privacy Protection Act of 1980
Protects the privacy of journalists. Provides an extra layer of protection for members of the media and media organizations from government searches or seizures in the course of a criminal investigation.
What is a tap and trace device?
Records the incoming telephone numbers to a device.
What is the Communications Assistance to Law Enforcement Act?
Requires telecom providers to do certain things to make communications available to law enforcement.
What does the DOJ have to show to get a FISA order?
That the party to be monitored is a foreign power or the agent of a foreign power. That the foreign surveillance is a substantial part of the investigation.
Stored Communications Act
The Stored Communications Act (SCA) was enacted as part of Electronic Communications Privacy Act in 1986. It generally prohibits the unauthorized acquisition, alteration or blocking of electronic communications while in electronic storage in a facility through which an electronic communications service is provided. Requires a warrant for any information stored, but if stored more than 180 days only requires a subpoena. Does not preempt state law.
What does the Foreign Intelligence Surveillance Act (FISA) cover?
The collection of foreign intelligence within the United States.
Electronic Communications Privacy Act of 1986
The collective name of the Electronic Communications Privacy and Stored Wire Electronic Communications Acts, which updated the Federal Wiretap Act of 1968. ECPA, as amended, protects wire, oral and electronic communications while those communications are being made, are in transit, and when they are stored on computers. The act applies to e-mail, telephone conversations and data stored electronically. The USA PATRIOT Act and subsequent federal enactments have clarified and updated ECPA in light of the ongoing development of modern communications technologies and methods, including easing restrictions on law enforcement access to stored communications in some cases.
How did the Patriot Act expand the definition of a tap & trace?
To include dialing, routing, addressing or signaling information transmitted to or from a device or process.
The Digital Telephony Bill is another name for which legislation?
US Communications Assistance to Law Enforcement Act
What does the Stored Communications Act prohibit?
Unauthorized acquisition, alteration or blocking of electronic communications while in electronic storage in a facility through which an electronic communications service is provided.
Damages for violations of the Privacy Protection Act of 1980
Violations a minimum of $1000, actual damages and attorneys fees.
Does HIPAA allow disclosure of information to the government?
Yes. HIPAA permits disclosure of protected health information to authorized federal officials for the conduct of lawful intelligence, counter-intelligence, and other national security under the National Security Act.