Electronic Communications in the United States

Patriot Act Provisions of the Patriot Act Electronic Communications

Introduction to Electronic Communications

The Patriot Act expands the government’s ability to eavesdrop on or to monitor electronic communications, such as telephone calls and e-mail. For the first time the government formally obtained the right to monitor e-mail communications. The Patriot Act also made it easier for law enforcement authorities to listen to a suspect who was using multiple phones by authorizing “roving” wiretaps. Once authorities get a warrant (permission from a judge), it can be used for any telephone or cell phone or computer the suspect uses. Previously, officials needed separate authorization for each and every telephone. The provision that allowed for roving wiretaps was one of two sunset provisions that were not made permanent when Congress renewed the Patriot Act in 2006. Instead, this provision was extended for four years.

To obtain a warrant to eavesdrop on electronic communications, some parts of the law, such as section 215, require the government to go before a judge. Only the judge has the power to decide if there is sufficient reason to violate someone’s privacy. However, if law enforcement officials stipulate that the investigation involves terrorism, under section 215 the judge has no discretion to refuse the government’s request, a situation that is sometimes known as having a judge “rubber stamp” the request.

Still other parts of the law, such as section 505, call for no judicial oversight and allow the executive branch of the government to decide what is necessary and legal. For example, as a result of the Patriot Act, law enforcement and intelligence agency officials no longer have to seek authority from a judge to use either a “pen register” or a “trap and trace” device on telephones used by an alleged terrorist suspect.

These devices are forms of caller ID. Pen registers tell officials the numbers dialed from a suspect’s telephone; trap and trace devices monitor and record all the incoming numbers. Neither device enables authorities to listen in on the content of the conversations. They only provide the incoming and outgoing numbers. To listen in on the content of a conversation, the government has to obtain the approval of a judge and make a showing of probable cause-that is, a showing that a crime has likely been committed.

The Patriot Act also makes the same standards used for intercepting telephone calls and conversations applicable to the Internet. Prior to the Patriot Act, it was unclear whether the laws governing eavesdropping and monitoring of telephone communications also covered communications over the Internet, such as e-mail. To eavesdrop on the content of e-mail exchanges, the government has to go before a judge with a showing of probable cause that a crime was being committed. However, to simply monitor the sending and receiving of e-mail, no judicial review or showing of probable cause is required. In such cases the government can monitor only the To: and From: addresses, but not the content of the text messages. Government attorneys have indicated that even the Subject line of an e-mail communication is considered content and may not be used.” (1)

Electronic Surveillance

According to a Brief from the Goverment, whether a person has a reasonable expectation of privacy in any particular case! of course, requires the evaluation of the specific facts presented. See. e.g .. United States v. Dorais, 241 F.3d 1124, 1129 (9th Cir. 2001). As a result, a user of certain Internet services, such as those provided by Yahoo, may agree to terms of service confinning the provider’s authority to access information submitted to the provider or disclose such information in response to requests from the Government. Decisions in analogous contexts establish that consent to such terms can undermine any reasonable expectation of privacy under the Fourth Amendment. See United States v. Young. 350 F.3d 1302, 1308-
09 (lith Cir. 2003) (terms of service giving FedEx authority to consent to package search); Muick v. Glenavre Electronics, 280 F.3d 741, 743 (7th Cir. 2002) (employer announcement that it could inspect laptops); Guest v. Leis. 255 F.3d 325, 333 (6th Cir. 2001) (privacy disclaimer in an electronic bulletin board); cf. United States v. Miller. 425 U.S. 435,443 (1976) (“Tius Court has held repeatedly that 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
infonnation 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.”)

While the general question bas not been definitively resolved in the courts, the Government has argued before this Court that U.S. persons have a reasonable expectation of privacy in the content of such electronic communications, at least until they are received by their intended recipients. AIJy expectation of privacy that exists is limited to the content of the ommunications. The Supreme Court has held that persons have no reasonable expectation of privacy in dialing, routing, addressing, and signaling information that they share with communications providers. See Smith v. Marvland. 442 U.S. 735, 743-44 (1979).
This holding naturally encompasses “header” information that is attached to electronic communications, identifying (…) the sender of a communication, its recipient, and the time and date of its transmission. See United States v. Forrester. 495 F.3d 1041, 1048-49 (9th Cir. 2007) (holding that the surveillance of e-mail header information is “constitutionally indistinguishable from the use of a pen register that the Court approved in Smith”).

In Warshak v. United States, 490 F.3d 455, 469-76 (6th Cir. 2007) (analogizing e-mails to telephone calls and holding that an individual generally has a reasonable expectation of privacy in the content of e-mails, among other things, that “are . .. sent or received through, a commercial ISP’), vacated and oet’n for reh’g en bane granted, Oct. 9, 2007; United States v. Jones, 149 Fed. Appx. 954, 959 (11th Cir. 2005) (“We have not addressed previously the existence of a legitimate expectation of privacy in text messages or e-rnails. Those circuits that have addressed the question have compared e-mails with letters sent by postal mail. Although letters are protected by the Fourth Amendment. ‘if a letter is sent to another, the sender’s expectation of privacy ordinarily terminates upon delivery.”? (quoting United States v. King. 55 F.3d 1193, 1195-96 (6th Cir. 1995); United States v. Maxwell. 45 M.J. 406,418 (C.A.A.F. 1996) (“{T)he transmitter of an e-mail message enjoys a reasonable expectation that police officials will not intercept the transmission without probable cause and a search warrant.”

Pretrial Involving Skype, YouTube, and Other Video Electronic Communications

This section discusses generally the subject of Pretrial Involving Skype, YouTube, and Other Video Electronic Communications, how to determine the facts essential to Pretrial Involving Skype, YouTube, and Other Video Electronic Communications, and, to some extent, how to prove it in litigation and defense. Related topics are also addressed.

Electronic Communications (Privacy Rights)

This section introduces, discusses and describes the basics of electronic communications. Then, cross references and a brief overview about Privacy Rights is provided. Finally, the subject of Civil Rights Law in relation with electronic communications is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Resources

Notes and References

Information about Electronic Communications in the Encarta Online Encyclopedia

Electronic Communications