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CyberCrime:  Info Gathering & Wiretaps
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Fourth Amendment

Fourth Amendment: The right of the people to be secure in their persons, houses, papers, an 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.

Derived From: Congressional Research Service, The USA Patriot Act: A Legal Analysis (April 15, 2002)

The tiers reflected the Supreme Court's interpretation of the Fourth Amendment's ban on unreasonable searches and seizures. The Amendment protects private conversations, Berger v. New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 347 (1967). It does not cloak information, even highly personal information, for which there is no individual justifiable expectation of privacy, such as telephone company records of calls made to and from an individual's home, Smith v. Maryland, 442 U.S. 735 (1979), or bank records of an individual's financial dealings, United States v. Miller, 425 U.S. 435 (1976).

EFF v. AT&T

Congress responded to Berger and Katz, with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2522 (Title III). Title III, as amended, generally prohibits electronic eavesdropping on telephone conversations, face-to-face conversations, or computer and other forms of electronic communications, 18 U.S.C. 2511.7 At the same time, it gives authorities a narrowly defined process for electronic surveillance to be used as a last resort in serious criminal cases. When approved by senior Justice Department officials, law enforcement officers may seek a court order authorizing them to secretly capture conversations concerning any of a statutory list of offenses (predicate offenses), 18 U.S.C. 2516.

"Title III court orders come replete with instructions describing the permissible duration and scope of the surveillance as well as the conversations which may be seized and the efforts to be taken to minimize the seizure of innocent conversations, 18 U.S.C. 2518. The court notifies the parties to any conversations seized under the order after the order expires, 18 U.S.C. 2518(8).

"Below Title III, the next tier of privacy protection covers some of those matters which the Supreme Court has described as beyond the reach of the Fourth Amendment protection - telephone records, e-mail held in third party storage, and the like, 18 U.S.C. 2701-2709 (Chapter 121). Here, the law permits law enforcement access, ordinarily pursuant to a warrant or court order or under a subpoena in some cases, but in connection with any criminal investigation and without the extraordinary levels of approval or constraint that mark a Title III interception, 18 U.S.C. 2703.

"Least demanding and perhaps least intrusive of all is the procedure that governs court orders approving the government's use of trap and trace devices and pen registers, a kind of secret "caller", which identify the source and destination of calls made to and from a particular telephone, 18 U.S.C. 3121-3127 (Chapter 206). The orders are available based on the government's certification, rather than a finding of the court, that the use of the device is likely to produce information relevant to the investigation of a crime, any crime, 18 U.S.C. 3123. The devices record no more than the identity of the participants in a telephone conversation, but neither the orders nor the results they produce need ever be revealed to the participants."

Law

History

Olmstead v. United States, 277 U.S. 438 (1928) (telephone calls not protected by Fourth Amendment)

Katz v. United States, 389 U.S. 347 (1967) (overturned Olmstead, Fourth Amendment applies to people, not places - Fourth Amendment applies to telephone calls where there is an expectation of privacy)

Omnibus Crime Control and Safe Streets Act of 1968, Title III, Pub. L. No. 90-351, Title III, 82 Stat. 212 (1968) (authorizing courts to issue warrants for wiretaps). See S. Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968)

Application of the United States for Relief, 427 F.2d 639 (9th Cir. 1970) (holding that while the government could get a warrant for a wiretap, it could not compel the telephone company to assist the government in the tap).

1970 Amendment to 18 USC 2518(4) directing telecommunications carriers to provide police all information, facilities, and technical assistance necessary for the tap.

Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986) (extending wiretap authority to include electronic communications)

Communications Assistance for Law Enforcement Act of 1994, Pub. L. No. 103-414, 108 Stat. 4279 (1994). See also H.R. Rep. No. 827, 103d Cong., 2d Sess., pt. 1 (1994); Police Access to Advanced Communications Systems: Joint Hearings Before the Subcomm. on Technology and the Law of the Senate Comm. on the Judiciary and the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., 2d Sess., 1994 WL 223906 (Mar. 18, 1994) ; Telecommunications Carrier Assistance to the Government H.R. Rep. No. 103-827, pt 1 (1994), reprinted in 1994 U.S.C.C.A.N. 3489

Third Party Doctrine

If an individual discloses information to a third party, the individual loses a 4th Amendment expectation of privacy in that disclosed information.

    “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." - United States v. Miller, 425 U.S. 435, 443 (1976)

  • Lopez v. United States, 373 U.S. 427 (1963).
  • On Lee v. United States, 343 U.S. 747 (1952).
  • Daniel J. Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477 (2006)

European Commission

  • Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime, COMMUNICATION FROM THE COMMISSION  TO THE COUNCIL, THE EUROPEAN PARLIAMENT,  THE ECONOMIC AND SOCIAL COMMITTEE AND  THE COMMITTEE OF THE REGIONS 26.1.2001
    • The European Commission would like to invite comments from all interested parties on the issues addressed in this Communication. Comments may be sent up to 23 March 2001 via e-mail to the following address: infso-jai-cybercrime-comments@cec.eu.int Request for Comments

Caselaw

Links

Books

  • Fishman & McKenna, WIRETAPPING AND EAVESDROPPING (2d ed. 1995 & 2001 Supp.)
Papers

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