Intercepting Communications

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Intercepting Communications

• Title III (The Wiretap Act) and the Digital Age
• Caryn Ackerman
• Danielle Abraham
• Alex Frix
• Michael Vroman

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The Wiretap Act

• The Omnibus Crime Control and Safe Streets Act of
  1968
• (Title III)

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Omnibus Crime Control and Safe Streets Act of
1968 (Title III)

• The first federal program designed specifically
  as a block grant
• Johnson administration - strong national concerns
  over rising crime rates and proliferating civil
  disturbances
• Title III - wiretaps could be used in emergency
  situations, but if a warrant was not obtained
  within 48 hours then any information obtained
  could not be used in court or even revealed

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Fourth AmendmentBerger v. United States

• 1) There must be Probable Cause
• 2) Particularly Described
• 3) Specific, Limited Period
• 4) If renewed, must be continuing PC
• 5) Must terminate once seized
• 6) Notice, unless factual showing of exigency
• 7) Return of warrant so Court may supervise
  restrict use of seized conversations

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18 U.S.C. 2510-22 Wiretapping

•  2511 Interception disclosure of wire, oral,
  electronic communications prohibited
•  2512 Manufacture, distribution, possession,
  advertising of wire, oral, or electronic
  communication intercepting devices prohibited
•  2513 Confiscation of wire, oral, electronic
  communication intercepting devices
•  2515 Prohibition of use as evidence of
  intercepted wire or oral communications

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18 U.S.C. 2510-22 Wiretapping

•  2516 Authorization for interception of wire,
  oral, or electronic communications
•  2517 Authorization for disclosure use of
  intercepted wire, oral, or electronic
  communications
•  2518 Procedure for interception of wire, oral,
  electronic communications
•  2519 Reports concerning intercepted wire,
  oral, elec. comm.

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18 U.S.C. 2510-22 Wiretapping

•  2520 Recovery of civil damages authorized
•  2521 Injunction against illegal interception
•  2522 Enforcement of Comm. Assist. for Law
  Enforcement Act

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2510 Definitions

• wire communication means any aural transfer
  made in whole or in part through the use of
  facilities for the transmission of communications
  by the aid of wire, cable, or other like
  connection between the point of origin and the
  point of reception (including the use of such
  connection in a switching station) furnished or
  operated by any person engaged in providing or
  operating such facilities for the transmission of
  interstate or foreign communications or
  communications affecting interstate or foreign
  commerce

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2510 Definitions

• electronic communication means any transfer of
  signs, signals, writing, images, sounds, data, or
  intelligence of any nature transmitted in whole
  or in part by a wire, radio, electromagnetic,
  photoelectronic or photooptical system that
  affects interstate or foreign commerce but does
  not include wire communications

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18 U.S.C. 3121-27Pen Registers/Trap Trace
Devices

• 3121. General prohibition on pen register and
  trap and trace device use exception
• 3122. Application for an order for a pen
  register or a trap and trace device
• 3123. Issuance of an order for a pen register
  or a trap and trace device

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18 U.S.C. 3121-27Pen Registers/Trap Trace
Devices

• 3124. Assistance in installation and use of a
  pen register or a trap and trace device
• 3125. Emergency pen register and trap and trace
  device installation
• 3126. Reports concerning pen registers and trap
  and trace devices

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3127 Definitions

• pen register means a device or process which
  records or decodes dialing, routing, addressing,
  or signaling information transmitted by an
  instrument or facility from which a wire or
  electronic communication is transmitted
• trap and trace device means a device or process
  which captures the incoming electronic or other
  impulses which identify the originating number or
  other dialing, routing, addressing, and signaling
  information reasonably likely to identify the
  source of a wire or electronic communication

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Department of Justice

• Search and Seizure Policies

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1. Interception pursuant to court order

• Must show probable cause will get information
  from predicate felony
• Must minimize intrusiveness
• Must try all other investigative techniques

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2. Consent

• Any party to a communication may consent
• Can be express or implied
• Bannering Consent
• Must determine who is a party
• Private citizens can act without government

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3.Provider Exception

• Employees of service providers may intercept
  communications to protect providers rights
• MUST be to protect providers rights
• Balance providers rights with rights of users
• Law enforcement should exercise extreme care

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4. Computer Trespasser Exception

• Victims of computer attacks can authorize
  interceptions
• Must be able to avoid intercepting communications
  of authorized users

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5. Extension Exception

• More used for phone communication
• Does NOT permit agents to intercept ordinary
  phone calls

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6. Inadvertent Exception

• Public Provider can intercept any criminal
  conduct in certain circumstances

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7. Accessible to the Public Exception

• Any person can turn over information gathered
  from a traditionally public source
• Chat rooms, message boards, Usenet newsgroups

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Case Law

• Pen Registers and Trap Trace Devices

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Pen Registers and Trace Devices Case Law

• Smith v. Maryland, 442 U.S. 735 (1979).
• U.S. v. Seidlitz, 589 F.2d 152 (4th. Cir. 1978).

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Smith v. Maryland the Facts

• After a robbery, the victim began receiving
  threatening and obscene phone calls. During one
  of the phone calls, she saw the same car from the
  robbery drive slowly by her house.
• Later, police saw this same car in the victims
  neighborhood and ran its plates, providing the
  name of the suspect.
• To determine whether defendant had made the phone
  calls, the police asked the phone company to
  install a pen register.
• Pen register a mechanical device that records
  the numbers dialed on a phone by monitoring the
  electrical impulses caused when the dial on the
  phone is released. U.S. v. N.Y. Telephone Co.
• No warrant was obtained for the installation of
  the pen register. The pen register revealed that
  the phone call received by the victim came from
  defendants home.

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Smith Issue on Appeal

• In trial, defendant sought to suppress the pen
  register evidence as well as evidence seized in
  the resulting search of his residence. The court
  denied his motion, holding that the warrantless
  installation of the pen register did not violate
  the 4th Amendment.
• The U.S. Supreme Court granted certiorari to
  settle the question of the restrictions imposed
  by the 4th Amendment on the use of pen registers.
  
• Note Title III does not govern pen registers for
  two reasons (1) doesnt acquire information
  through sounds (2) doesnt obtain contents of
  communication. U.S. v. N.Y. Telephone Co.

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The Supreme Courts Analysis Applying Katz v.
U.S.

• Whats the state activity?
• Installing and using pen register.
• As in Katz, no trespass of defendants property
  occurred, but did the state activity infringe
  upon a legitimate expectation of privacy held by
  defendant?
• As a threshold matter, pen register is
  distinguishable from the listening device used in
  Katz, because pen registers do not involve the
  contents of communications. Thus, defendants
  argument must be that he had a legitimate
  expectation of privacy as to the number he dialed
  on the phone.
• The Court rejects the assertion that defendant
  had a legitimate expectation of privacy as to the
  numbers he dialed. Two main reasons for this
  holding are provided.

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Why didnt defendant have a legitimate
expectation of privacy as to the numbers he
dialed?

• (1) The Court was doubtful that people, in
  general, actually expect privacy as to the
  numbers they dial.
• Phone company must necessarily have information
  pertaining to the numbers dialed to facilitate
  the completion of calls. Furthermore, phone
  companies regularly use pen registers for record
  keeping and billing.
• (2) A person typically does not have a legitimate
  expectation of privacy as to information that is
  voluntarily turned over to third parties.
• Holding Because the installation and use of pen
  register was not a search, no warrant was
  required.

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U.S. v. Seidlitz The Facts

• Former employee of computer service company (OSI)
  began hacking into their system.
• OSI employee noticed - asked phone company to
  manually trace number and used a device called a
  spy, to record requests made by the intruding
  computer.
• FBI became involved and requested that the phone
  company install equipment to carry out further
  traces automatically. Defendant was eventually
  convicted on two counts of wire fraud.

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Seidlitz Issue on Appeal

• Whether the trial court erred in denying
  defendants pretrial motion to suppress the
  evidence seized from his office and residence.
• Defendant argued that the searches were
  invalidated by the use of illegal electronic
  surveillance to obtain the information supporting
  the warrants.

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Fourth Circuits Analysis Title III

• The surveillance did not violate Title III
• (1) like a pen register, the traces did not
  result in the interception of the contents of the
  communications.
• Title III only proscribes the interception of the
  contents of communications.

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Fourth Circuits Analysis Title III

• (2) as to the spy, Title III only applies to
  aural acquisition of the contents of wire
  communications. Aural acquisition obtaining
  possession of something by hearing it. Because
  the spy did not rely on sounds to retrieve
  information from other computers, it did not
  constitute an aural acquisition.

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Fourth Circuits Analysis Title III

• (3) also regarding the spy, Title III authorizes
  interception of a wire communication by a party
  to the communication or by a person acting with
  the consent of a party to the communication. OSI
  was, essentially, a party to the communication
  and thus capable of recording the communication
  by using the spy or consenting to such recording.

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The Fourth Circuits Analysis 4th Amendment

• The surveillance did not violate the 4th
  Amendment
• The activities complained of were, at most,
  conducted by private persons OSI and the phone
  company to which the constitutional prohibition
  against warrantless searches does not apply.
• The 4th amendment comes into play only where it
  appears from all of the circumstances that the
  challenged evidence was obtained as a result of a
  search conducted by government officers or by
  private persons acting as agents or
  instrumentalities of the government
• These searches and their fruits are not subject
  to scrutiny under the exclusionary rule because
  the degree of federal involvement did not suffice
  to deprive a citizens search of its private
  character.

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Case Law

• Electronic Communication Interception

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How Email Works
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US v Smith, 155 F3d 1051 (1998)

• Co-worker hacked into defendants voicemail
• Gave tape to government
• Defendant investigated for insider trading
• 9th Circuit ruled co-worker had illegally
  intercepted voicemail
• Wiretap and not Secured Communications Act
  governed
• Changed by USA PATRIOT Act

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SJG v. Secret Service

• Computer physically seized
• Computer held undelivered emails
• Agents accessed emails
• Interception?
• No
• Electronic communication does not include
  electronic storage of such communications.
• 18 USC 2510(12)

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Fraser v. Nationwide

• Employer accessed employees emails stored on
  their servers
• Interception?
• No
• Emails already sent and received
• an "intercept" can only occur contemporaneously
  with transmission and it did not access Fraser's
  e-mail at the initial time of transmission.
• 352 F.3d 107, 113 (2003)

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Konop v. Hawaiian Airlines

• Pilot created website critical of employer
• Access restricted to pilots
• Manger used pilots username to access site
• Interception?
• No
• Website information was in stored state
• Unlawful access?
• Yes
• Other pilots that gave management their usernames
  never used the service,

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US v. Councilman

• ? ran rare out-of-print book listing service
• Provided customers an email address
• ? intercepted all customers emails from
  Amazon.com
• ? hoped to gain commercial advantage from reading
  the emails

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US v. Councilman

• Interception?
• YES!
• Emails were electronic communications
• Emails were not merely in electronic storage

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Keyloggers
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US v. Scarfo

• the agency's description of the technology is
  so shrouded in mystery, it defies the human
  experience of this court.

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US v. Ropp

• Use of a keylogger did not involve interstate
  commerce
• Keystrokes recorded were not electronic
  communications
• NOTE Based on Councilman I, which was overturned

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Different Standards

• Wiretap Act
• Emails before they have been retrieved (First
  Circuit)
• Internet chats (as communicated)
• VOIP
• Phone Calls
• Requires Court Order
• Stricter Standards (Within DOJ)
• Civil and Criminal Remedies

• Stored Communications Act
• Emails in storage, after delivery or backup
  copies
• Emails stored in transit (9th Circuit)
• Chat logs
• Voicemail (Thanks, UPA!)
• Requires Search Warrant
• Less Restrictive
• Civil Remedies

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Other Issues

• Digital Telephony Act (Communication Assistance
  for Law Enforcement)
• Manufacturers must make backdoors for law
  enforcement to tap into
• VOIP?
• Computers in general?
• Carnivore (Deceased)
• Echelon (Foreign Surveillance)