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. - 4th Amendment
The United States is "enter[ing] new and unchartered territory by breaking down traditional barriers between law enforcement and foreign intelligence." - Sen Patrick Leahy, 147 Cong Rec S10992 (daily ed. Oct 25, 2001)
The American Revolution proposed several radical notions; one was the idea that the sovereign lacks the capacity to, at its whim, impose on the citizen searches or the taking into possession the citizen’s property. It cannot be overstated what a dramatic departure this was from conservative European monarchical governments. [4th Amendment] In time, modern governments such as the Nazis sought a return to strongly centralized totalitarian regimes, eliminating or marginalizing civil rights as extremists consolidated power. These American notions of an accountable and curtailed government are cornerstones of government by the people.
Background: The Wiretap Act & ECPA
The 4th Amendment's privacy protections were not always extended to electronic communications. In an era when telephone service was still novel, the Supreme Court struggled to recognize the applicability of the Fourth Amendment to a telephone call. In Olmstead v. US, law enforcement convicted bootleggers based on evidence gathered from wiretaps. The wiretaps were outside the homes and offices of the defendants; law enforcement did not enter the private property of the defendants in order to conduct the taps. Therefore, the Supreme Court, in a split vote, concluded "The [Fourth] Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants." Olmstead v. US, 277 US 438, 465(1928). This would remain the law of the land until overturned in the late 1960s by Katz and Berger.
The seeds of destruction of Olmstead were written within the Olmstead opinion. Justice Brandeis, in his famous dissented, opined that the court had failed to recognize the Constitution as a living document. The Founding Fathers could not have anticipated all that would come after their time, nor did they intend for the Bill of Rights to be applicable only to the threats that occurred during their time. Brandeis wrote,
When the Fourth and Fifth Amendments were adopted, "the form that evil had theretofore taken," had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify - a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life - a seizure effected, if need be, by breaking and entry. Protection against such invasion of "the sanctities of a man's home and the privacies of life" was provided in the Fourth and Fifth Amendments by specific language. But "time works changes, brings into existence new conditions and purposes." Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.
[Olmstead, Brandeis dissent, 473]
Wiretapping law muddled along until one day a law enforcement officer placed a bug in a telephone booth. This was a public place and surely an individual had no privacy interest here, right? The Supreme Court in the seminal case Katz v. United States concluded that privacy interests attached to the person and not just to the place; a person could have an expectation of privacy regardless of where that person is. A telephone conversation could be subject to 4th Amendment protection.
"The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In determining whether a particular form of government-initiated electronic surveillance is a "search" within the meaning of the Fourth Amendment, our lodestar is Katz v. United States, 389 U. S. 347 (1967) . In Katz , Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a "search" can occur only when there has been a "physical intrusion" into a "constitutionally protected area," noting that the Fourth Amendment "protects people, not places." Id., at 351-353. Because the Government's monitoring of Katz ' conversation "violated the privacy upon which he justifiably relied while using the telephone booth," the Court held that it "constituted a `search and seizure' within the meaning of the Fourth Amendment." Id., at 353." [Smith 739 SCt 1979]
A person must exhibit an actual (subjective) expectation of privacy and,
The expectation be one that society is prepared to recognize as "reasonable."
Katz v. United States , 389 U.S. 347 (1967). See also Berger v. New York , 388 U.S. 41 (1967). In response, Congress in 1968 passed the Omnibus Crime Control and Safe Streets Act of 1968, establishing the Wiretap Act, and providing guidelines for when and how law enforcement should obtain a warrant in order to execute a wiretap.
Omnibus Crime Control and Safe Streets Act of 1968, Title III, Pub. L. No. 90-351, Title III, 82 Stat. 212 (1968).
Next problem: The Wiretap Act covered “aural” communications (that would be “voice” for those of use who don’t speak legalese). [18 USC § 2510(18) (aural transfer: "a transfer containing the human voice at any point between and including the point of origin and the point of reception")]. The problem here is that transmissions on data networks are not “aural” and therefore are not protected by the Wiretap Act, right? The Court in United States v. Seidlitz concluded just this. [See S. Rep. No. 99-541, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 3555; United States v. Torres, 751 F.2d 875, 885-86 (7th Cir. 1984) ("concluding that “silent television surveillance” cannot lead to interception of wire communications under Title III because no aural acquisition occurs").] Again, technology has surpassed the law.
ECPA: In 1986, Congress caught up to technology by amending the Wiretap Act with ECPA. Pursuant to ECPA, officers may intercept the content of "electronic communications" where they have acquired a search warrant from a court and served it on a service provider where the content is to be intercepted. [18 U.S.C. § 2510(12)] [18 U.S.C. § 2516] [18 U.S.C. § 2518] [Rule 41] [Phonemaster] “Content” includes the subject line of emails; it does not include transactional information.
In enacting ECPA, Congress codified its understanding of computer networks at that time.
[Kerr p. 8 2004] Neither ECPA's statutory language nor its legislative history make any reference to the Internet. [Lupu 9] [Gellis 344] As a result, creating a clear picture of the new protections that ECPA brings is less than easy. Multiple federal courts, forced to apply ECPA in novel situations, have described ECPA as "famous (if not infamous) for its lack of clarity," [Steve Jackson Games 462 5th Cir. 1994] [Smith 1055 9th Cir. 1998 (stating that the 5th Circuit "might have put the matter too mildly")] that ECPA is "fraught with trip wires," and that it is "a fog of inclusions and exclusions." [Kerr, Lifting the “Fog” of Internet Surveillance (2003) (“The law of electronic surveillance is famously complex, if not entirely impenetrable.”)]
ECPA dramatically expanded the definition of “communications.” Previously wiretaps were of voice communications. ECPA expanded this to include non-voice communications including “signs, signals, writings, images, sound, data, or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photoelectric or photo-optical systems.” [18 U.S.C. § 2510(12)] [H.R. Rep. No. 99-647 at 35 (commenting on definition of "Electronic Communications")] [Councilman (ECPA covers email including email in storage during transmission)]. If it’s out there, Congress wanted to reach out and touch it.
Derived From: Congressional Research Service, The USA Patriot Act: A Legal Analysis (April 15, 2002)
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).
Communications: 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).
Records: "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.
Historic Timeline
Wilkes v. Woods, 19 Howelll's State Trials 1153 (1763)
Entick v. Carrington , 19 Howell's State Trials 1029 (1765)
Olmstead v. United States, 277 U.S. 438 (1928) (telephone calls not protected by Fourth Amendment, Olmstead was a bootlegger)
Katz v. United States, 389 U.S. 347 (1967) (overturned Olmstead and Goldman, 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).
970 Amendment to 18 USC 2518(4) directing telecommunications carriers to provide police all information, facilities, and technical assistance necessary for the tap.
Smith v Maryland (1979) (no privacy interest in transaction information - trap and trace)
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. 348
