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.
ECPA & Title III
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.
What Get's What?
Note that higher levels of legal authority can also obtain the information available through lower levels of authority. In other words, a court order can generally obtain everything that a subpoena would be able to obtain. NB: This information may be somewhat out of date (just like most information on this site)
Level of
Authority |
Legal Process |
Covers |
Potentially Applicable Federal Law |
Lowest |
Voluntary Disclosure / Consent [SSM] |
Victim "may voluntarily disclose contents of internal emails relevant to the attack" [Tracking a Computer Hacker]
"Voluntary Disclosure by a provider whose services are available to the public is forbidden unless certain exceptions apply. These exceptions include disclosures 'incident to the rendition of the service or the protection of the rights of property of the provider of the service." [Tracking a Computer Hacker]
Access to everything |
18 U.S.C. § 2802(b)
18 U.S.C. § 2702(b)(5) |
|
Historical |
|
|
Lowest |
Retention Letter |
Requires ISP "to preserve the records while a court order or other process is being obtained." [Tracking a Computer Hacker] |
18 U.S.C. § 2703(f) |
|
Subpoena [SSM Appendix E] |
Unopened email older than 180 days |
|
|
Subpoena |
Basic subscriber information - "can be used to obtain basic subscriber info from an ISP, including 'the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity and length of service of a sub to or customer of such service and the type of service the sub or customer utilized." [Tracking a Computer Hacker] |
18 U.S.C. § 2703(c)(1)(C) |
|
Subpoena |
"used to obtain opened emails [and files[SSM]], but only under certain conditions relating to notice to the subscriber. Notice may be delayed under Section 2705 for successive 90-day periods. Subpoenas may be issued for emails that have been opened, but a search warrant is generally needed for unopened emails." [Tracking a Computer Hacker] |
18 U.S.C. § 2703(b)(1)(B) |
|
Order to retain records Backups |
|
|
|
§ 2703(d) Court Order |
Transactional records - "for account logs and transactional records. Such orders are available if the agent can provide 'articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." [Tracking a Computer Hacker] |
18 U.S.C. § 2703(d) |
|
§ 2073(d) Court Order |
"Full contents of a subscriber's account (except for unopened email stored with an ISP for 180 days or less and voice-mail), of the order complies with a notice provision in the statute. Notice to the subscriber can be delayed for up to ninety days when notice would seriously jeopardize the investigation." [Tracking a Computer Hacker] 18 U.S.C. § 2705(a). |
18 U.S.C. § 2703(b)(1)(B)(ii) and (b)(2) |
Highest |
Search Warrant [SSM Appendix F] |
"can be used to obtain the full contents of an account [including unopened email [SSM]], except for voice-mail in electronic storage (which requires a Title III order). The ECPA does not require notification to the subscriber when the government obtains information from a provider using a search warrant." [Tracking a Computer Hacker] |
Rule 41 of the Federal Rules of Criminal Procedure or state equivalent |
|
Real Time |
|
|
Lowest |
Pen Register, Trap and Trace Orders |
Real time traffic data interception ("collection of addressing information for wire and electronic communication") |
18 U.S.C. § 3121-27 |
Highest |
Title III Order |
Real time content interception (actual content of communication), access to voice-mail in electronic storage. |
18 U.S.C. § 2510-22, Wiretap Statute |
Quick Reference Guide
| |
Voluntary Disclosure Allowed? |
How to Compel Disclosure |
| |
Public Provider |
Non-Public |
Public Provider |
Non-Public |
| Basic subscriber, session, and billing information |
Not to government, unless § 2702(c) exception applies
[§ 2702(a)(3)] |
Yes
[§ 2702(a)(3)] |
Subpoena; 2703(d) order; or search warrant
[18 U.S.C. § 2703(c)(2)] |
Subpoena; 2703(d) order; or search warrant
[18 U.S.C. § 2703(c)(2)] |
| Other transactional and account records |
Not to government, unless § 2702(c) exception applies
[§ 2702(a)(3)] |
Yes
[§ 2702(a)(3)] |
2703(d) order or search warrant
[18 U.S.C. § 2703(c)(1)] |
2703(d) order or search warrant
[18 U.S.C. § 2703(c)(1)] |
| Accessed communications (opened e-mail and voice mail) left with provider and other stored files |
No, unless § 2702(b) exception applies
[§ 2702(a)(2)] |
Yes
[§ 2702(a)(2) ] |
Subpoena with notice; § 2703(d) order with notice; or search warrant
[§ 2703(b)] [See Theofel for 9th Cir.] |
Subpoena; ECPA doesn't apply
[§ 2711(2)] [See Theofel for 9th Cir.] |
| Unretrieved communication, including e-mail and voice mail (in electronic storage more than 180 days) |
No, unless § 2702(b) exception applies
[§ 2702(a)(1)] |
Yes
[§ 2702(a)(1)] |
Subpoena with notice; § 2703(d) order with notice; or search warrant
[§ 2703(a,b)] |
Subpoena with notice; § 2703(d) order with notice; or search warrant
[§ 2703(a,b)] |
| Unretrieved communication, including e-mail and voice mail (in electronic storage 180 days or less) |
No, unless § 2702(b) exception applies [§ 2702(a)(1)] |
Yes [§ 2702(a)(1)] |
Search warrant [§ 2703(a)] |
Search warrant [§ 2703(a)] |
US DOJ Search and Seizure Manual, Sec. III.F. [Search and Seizure Manual 2009 p 138]
|
Acquisition in real time |
Historical information |
Contents of Communications |
Title III order or consent generally |
Warrant (for unopened email) or consent
Subpoena with notice (for files, opened email) or consent; may delay notice |
Other records (subscriber and transactional data) |
Pen register / trap and trace order or consent |
Subpoena (for basic subscriber info only) consent
18 U.S.C. § 2703(d) specific and articulable facts" court order (for all other non content records), consent |
Legal Process
Order if legal process:
1) Subpoena
2) Subpoena with notice to subscriber
3) § 2703(d) Court Order
4) § 2703(d) Court Order with notice
5) Search Warrant
The burden on the government is greater for a warrant than a subpoena but the government is authorized to search more with a warrant than a subpoena.
Subpoena: A subpoena is a court order, signed by a judge, usually requiring that a witness appear. Subpoena's can also be issued that require, instead of a witness appearing, that a witness produce certain documents in question. The threshold for acquiring a subpoena is relatively low. See United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950).” USDOJ Search and Seizure Manual Sec. III.D.1.
Warrant: A warrant is a court order, signed by a judge. A search warrant is signed by a judge, based upon a declaration of a law enforcement officer, permitting the officer to search a premises for evidence. Pursuant to the 4 th Amendment, a search warrant will be issued only upon probably cause, and must specifically describe the place to be searched and the evidence to be seized.
Probable cause : A thing is more likely than not.
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