Chapter 9

Tyrannical nature of English system Checks and balances in American system

3 branches of government State sovereignty Constitution Bill of Rights

Balancing Act

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Olmstead v. U.S. (1928)

1st case to evaluate the level of protection afforded to individuals in electronic communications Ruled that the sanctity afforded to a private home did not include telephone communications made within that home 4th Amendment protects places not people Reversed in Katz
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Katz v. United States (1967)

4th Amendment protects people not places Expectation of privacy may be heightened in situations where measures are taken to increase policy All federal & state domestic wiretaps require a court order predicated on probable cause.

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Weeks v. United States

Judicial creation of the exclusionary rule Fruits of the poisonous tree Designed to prevent unlawful actions against citizens by the police

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Expectation of Privacy not articulated in the Constitution judicial creation Right to privacy moderated by the expectation of such privacy Based on case characteristics Generally information transmitted electronically is not as private due to global accessibility

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Four general areas

Physical Communications Information Territorial

Physical

Most private Justified by 4th Amendment Linked to 1st Amendments freedom of speech & association

Communication

Information

14th Amendments due process

Most difficult to define & to establish boundaries
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Territorial

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Public

Employers more limited than their private counterparts Factors to consider: Whether the items or areas to be searched have been set aside for the employees exclusive or personal use Whether the employee has been given permission to store personal information/items Whether the employee has been advised that the system may be accessed by others Whether there has been a history of searches or inspections of the area Whether there is a clearly articulated policy which identifies common area vs. private areas

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Three prongs of OConnor v. Ortega

Whether employees expectation of privacy was consistent with operational realities

Balance of 4th Amendment protection & government interest in intrusion

Whether search was reasonable at inception as was the subsequent scope
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Application of Ortega to E-mail

U.S. v. Simons oEmployee indicted after a system administrator discovered over 1,000 child porn images oRuling: Systems administrators may scan networks to indentify non-work related activity U.S. v. Monroe oSystem administrator discovered child porn after opening undelivered mails of excessive size oRuling: employee did not have an expectation of privacy on a government computer which was bannered with warnings
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10

System administrators of government equipment have a right to monitor their systems within the scope of their duties This includes: routine systems protection monitoring, system management, prevention of unauthorized access, and verification of security procedures, survivability and operational security Monitoring by law enforcement requires consent of one party OR authorized by court order, warrant, or special probable cause circumstances System administrators MAY NOT work under the direction of law enforcement
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Electronic Communications Privacy Act Extended provisions found in Title III of Omnibus Includes wireless and non-aural electronic communications Provides penalties for violators (both LE and private) Three Titles
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Title I
Statutory procedures for intercepting wire, oral, and electronic communications Ambiguous Does not prohibit law enforcement from indentifying transmissions just the contents

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Title II
AKA Stored Communications Act Prohibits providers from disclosing the contents of communication held in storage Also prohibits disclosure of any contextual information Exceptions

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Title III
Regulates pen registers and trap and trace devices

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Made it unlawful for local, state, or federal LE authorities to search or seize those materials which may be publishable Expanding 1968 wiretap act to include electronic BBs especially work product and documentary materials Like ECPA criticized for vagueness, ambiguity, and overbreadth. Victims may include publishers, authors, editors, newspapers, or information dissemination Steve Jackson Games, Inc.

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interception be definition, must happen before arrival Difficulty in conceptualization electronic messages are instantaneous

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Required manufacturers of telecommunications equipment and service providers develop systems which provide capability for surveillance of telephone & cellular communications, advanced paging, satellite-based systems, and specialized mobile radio. Also required the delivery of packet mode communications by these providers to LE without a warrant Supposed to heighten privacy protections provided by ECPA Congress declared that surveillance requirements be narrowly interpreted
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Title I Enhancing Domestic Security Against Terrorism Title II Enhanced Surveillance Procedures Title III Money Laundering Title IV Border Protection Title V Removing obstacles to investigating terrorism Title VI Victim Provisions Title VII Information Sharing Title VIII Strengthening Terrorist Laws Title IX Improved Intelligence Title X - Miscellaneous
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Amended the International Emergency Economic Powers Act Expanded the discretionary power of the President President can seize and liquidate U.S. property of any foreign body who is suspected of facilitating an attack

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Conceptualized in in 1986 1986

Conceptualized

Expanded by Expanded by Patriot Act Patriot Act

Expanded types of Expanded types information of information attainable attainable (inc. (inc. SSNs, SSNs, DLs, etc. DLs, etc.

Expanded list of Expanded list of financial financial institutions institutions required required to file to file Suspicious Suspicious Activity Reports. Activity Reprots

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Particularity
Inconsistent interpretation Some circuits provide broad searches Others require specificity Scope limited to probably cause in warrant & parameters established therein
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Seizure of Evidence
Based on reasonableness LE does not have to give deference to descriptive labels LE should ALWAYS obtain secondary warrants when necessary

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Third Party Origination

Any party acting under the direction of LE must adhere to the same Constitutional restrictions

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Staleness

U.s. v. Hay Defendant convicted of child pornography seized on a

warrant based on information that was months old. Court upheld conviction based on information from an expert that indicated that pornographers kept their images

Insufficiency of Probable Cause

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Consent Scope must be reasonable & within parameters of consent U.S. v. Turner

Exigent Circumstances & Emergency Situations

Important factors: Degree of urgency; amount of time necessary to obtain a warrant; volatility of evidence; danger at site; suspects knowledge of impending police action. Often requires a secondary warrant after seizure Incident to Arrest Not been extended to personal computers, laptops, etc.
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Plain View U.S. v. Carey Extension to Computers for LE: Focus on original search warrant obtain secondary warrant when necessary Automated procedures to follow in every case Border Searches Probable cause not required Other Warrantless Searches (not extended to computers) Automobiles, field interrogations, & inventory searches
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Vicinage Undercover Techniques Sentencing Guidelines

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