Fourth Amendment Concerns in a Digital Age

With the development of new forms of electronic communications, such as e-mail, cell phones, and data transmissions, Congress enacted the Electronic Communications Privacy Act (EPCA) in 1986. The ECPA was introduced as an update to existing Federal wiretapping law to provide protection for individuals engaged in these new forms of electronic communications. Still, privacy protection was not the legislators' only goal in passing the ECPA. It was also designed to protect “legitimate” law enforcement needs. The Congressional Record reveals that, at the request of the U.S. Department of Justice (DOJ), the legislators “strengthened current wiretap law from a law enforcement perspective” to expand the list of felonies for which a wiretap order may be issued and the list of Justice Department officials who may apply for such an order. Electronic Communications Privacy Act, Congressional Record S14441 Oct. 1, 1986, www.justice.gov/jmd/ls/legislative_histories/pl99-508/cr-s14441-52-1986.pdf. Further, the ECPA created criminal penalties for those who notify a target of a wiretap in order to obstruct, impede, or prevent it. 18 U.S.C.
' 2232(d).

But the most significant and far-reaching provisions of the ECPA were included in the section known as the Stored Communications Act. The SCA allows law enforcement, simply by obtaining a court order, to compel a provider of electronic communication service or remote computing service to disclose transactional records or other information pertaining to a subscriber or customer (but not the content of any electronic communications). 18 U.S.C. ' 2703(c), (d). It also allows the government to obtain the contents of e-mails and other electronic communication that have been held in storage for more than 180 days pursuant to the same type of court order. 18 U.S.C. ' 2703(a). The standard for obtaining a court order under the SCA is relatively low: The government needs to offer “specific and articulable facts showing that there are reasonable grounds to believe that the ' information sought [is] relevant and material to an ongoing criminal investigation.” 18 U.S.C. ' 2703(d). This standard is well below the probable cause standard required by the Fourth Amendment for searches and seizures. Thus, rather than protecting a user's privacy, the ECPA has created an open window through which law enforcement can surreptitiously gather information about an individual's communications and conduct electronic surveillance of a person's movements.

Moreover, in applying for an order under the SCA, the government can seek to prohibit the service provider to which the order is directed from notifying “any other person of the existence” of the order. 18 U.S.C.
' 2705 (b). Courts will grant such a gag-order if “there is reason to believe that notification of existence of ' the court order will” endanger a person's life or physical safety; cause a subject to flee; lead to the destruction of evidence or the intimidation of witnesses; or “otherwise seriously jeopardizing an investigation.” Id. The last category is so broad as to allow law enforcement to keep the vast majority of SCA orders secret.

DOJ Increasing Use of SCA Orders

The DOJ has sought court orders to obtain a wide variety of stored electronic information from service providers. For example, as The Wall Street Journal recently reported, the U.S. government obtained secret orders under the SCA requiring certain service providers to disclose information regarding the accounts of Wikileaks volunteer Jacob Applebaum. Julia Angwin, Secret Orders Target Email, WikiLeaks Backer's Information Sought, Wall Street Journal, Oct. 10, 2011. Federal prosecutors reportedly obtained court orders in December 2010 directing Internet service providers to turn over the IP addresses from which Applebaum logged into his accounts, as well as the e-mail and IP addresses of people with whom Applebaum corresponded, dating back to Nov. 1, 2009. One of the service providers unsuccessfully fought the government's order, but was able to get the order unsealed. Another won the right to notify the subscribers whose information was sought. Id.

How often are these orders used? According to The Wall Street Journal, this data is difficult to obtain because of the secrecy surrounding the orders, but Google has previously disclosed that in the last six months of 2009 it received 4,601 requests from the government for information (including, but not limited to, requests under the SCA) and complied with 94% of these. This information suggests that service providers are rarely successful in challenging these types of orders.

Criticism of the SCA

As the government's use of the SCA to obtain information without a search warrant increases, so, too, does criticism of the practice. There is a growing debate among law enforcement, defense attorneys, legal scholars and legislators regarding the SCA's continued relevance in light of the many technological advances since its enactment in 1986, when e-mail, instant messaging and the Internet were in their infancy. On the other hand, supporters of the SCA have expressed concern that any proposed changes to the act would prolong and undermine criminal and national security investigations.

Meanwhile, various courts, including the U.S. Court of Appeals for the Sixth Circuit and the U.S. District Court for the Eastern District of New York, have questioned the constitutionality of these orders in cases where the government obtained e-mails and cell phone information without a search warrant. For example, in United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), the defendant business owner challenged his conviction related to a scheme to defraud his customers, claiming that the government violated his Fourth Amendment rights when it compelled an Internet service provider to turn over 27,000 of his e-mails without notice, under authority of the SCA. Noting that the Fourth Amendment must keep pace with technological progress, the Sixth Circuit compared Internet service providers with the postal service. Just as the postal service is a mere intermediary for the exchange of letter communications, Internet service providers too are intermediaries for electronic letters. Thus, it would “defy common sense to afford e-mails lesser Fourth Amendment protection.” The Sixth Circuit concluded that the SCA is unconstitutional to the extent it allows government to obtain e-mails without a warrant. Nonetheless, because the agents relied in good faith on the provisions in the SCA, the court found that the exclusionary rule did not apply and refused to suppress the e-mail evidence.

Earlier this year, in In the Matter of an Application of the United States of America For an Order Authorizing the Release of Historical Cell-site Information No. 10-MC-897(NGG), 2011 U.S. Dist. LEXIS 93494 (E.D.N.Y Aug. 22, 2011), New York's Eastern District Court also found a Fourth Amendment violation where the government applied for an order directing Verizon Wireless to disclose the cell-site location records of an individual for a period of approximately 113 days. Judge Nicholas G. Garaufis denied the application, citing case law holding that prolonged electronic surveillance of an individual's location constitutes a Fourth Amendment search that requires probable cause and a search warrant. The court adopted the reasoning that an individual has a reasonable expectation of privacy over the totality of his movements over the course of a period of time. Permitting access to cumulative cell-site location records, which are only visible to the service provider, would allow the government to intrude into information that is objectively recognized as highly private.

The Future of Electronic Surveillance Under the SCA

Although courts are more carefully scrutinizing government applications for orders under the SCA in order to protect Fourth Amendment privacy concerns, the SCA has yet to be amended. The government's efforts to secretly obtain information from Internet and cell phone service providers proceeds unabated. Even in the Warshak case, the court ultimately allowed the government to use the unlawfully obtained evidence because of the agent's good-faith reliance on the SCA.

Even more unsettling is the fact that a person may never know he or she is the subject of an order. Communications service providers are prohibited from notifying customers of the order without court permission, a departure from their typical practice when otherwise subpoenaed by law enforcement. Therefore, individuals do not have the opportunity to intervene or object to an SCA order before the government obtains information about them, leaving them with no better safeguard than to rely on their Internet and cell phone service providers to contest such orders and fight to protect their privacy rights.

In fact, the government has recently gone to great lengths to make sure that even their tracking devices and methods remain secret. For example, prosecutors in a recent Arizona case were willing to agree that their use of a “stingray” (a device that can locate a mobile phone even when it's not in use) to track the defendant was a Fourth Amendment search and seizure. Jennifer Valentino-Devries, Feds Shift Tracking Defense, Wall Street Journal, Nov. 3, 2011, at A3. Legal experts view this as a tactical move to avoid revealing information about the device. Although the government conceded the issue in this case, its position still remains that the use of such devices does not constitute a “search” under the Fourth Amendment because people have no reasonable expectation of privacy while using cell phones. The government continues to take the same legal position with respect to other electronic tracking techniques, such as GPS devices.

Conclusion

In response to growing privacy concerns, public interest groups and technology companies have been lobbying Congress to update the SCA. While it remains to be seen whether Congress will adopt greater protections, the courts continue to curtail the government's use of the SCA when it contravenes the Fourth Amendment protections against warrantless searches and seizures. Attorneys for individuals, businesses and communication service providers should therefore keep abreast of these developments in order to safeguard their clients' electronic privacy rights.

Jonathan B. New, a member of this newsletter's Board of Editors and a former assistant U.S. attorney, is a partner in Baker Hostetler's white collar defense and corporate investigations practice in the New York office. Michelle Young is an associate at the firm.

For Twitter, LinkedIn, Facebook and Google+ followers, click here to subscribe to Business Crimes Bulletin at a special introductory rate of $349. This offer is valid for new subscribers only.

In recent years, Federal law enforcement agents have increasingly sought and obtained secret court orders under the Stored Communications Act (SCA) requiring Internet service providers to disclose information about customer accounts, and cell phone providers to supply data enabling agents to track individuals' movements. These sealed orders allow the government to obtain information from individuals' e-mails and cell phones without a search warrant and without providing notification to the subject of the search.

Because the information obtained by means of a sealed order may become evidence in criminal actions against business entities, companies and their advisers need to understand the law, its consequences and the development of case law concerning privacy rights.

The Electronic Communications Privacy Act and the Stored Communications Act

With the development of new forms of electronic communications, such as e-mail, cell phones, and data transmissions, Congress enacted the Electronic Communications Privacy Act (EPCA) in 1986. The ECPA was introduced as an update to existing Federal wiretapping law to provide protection for individuals engaged in these new forms of electronic communications. Still, privacy protection was not the legislators' only goal in passing the ECPA. It was also designed to protect “legitimate” law enforcement needs. The Congressional Record reveals that, at the request of the U.S. Department of Justice (DOJ), the legislators “strengthened current wiretap law from a law enforcement perspective” to expand the list of felonies for which a wiretap order may be issued and the list of Justice Department officials who may apply for such an order. Electronic Communications Privacy Act, Congressional Record S14441 Oct. 1, 1986, www.justice.gov/jmd/ls/legislative_histories/pl99-508/cr-s14441-52-1986.pdf. Further, the ECPA created criminal penalties for those who notify a target of a wiretap in order to obstruct, impede, or prevent it. 18 U.S.C.
' 2232(d).

But the most significant and far-reaching provisions of the ECPA were included in the section known as the Stored Communications Act. The SCA allows law enforcement, simply by obtaining a court order, to compel a provider of electronic communication service or remote computing service to disclose transactional records or other information pertaining to a subscriber or customer (but not the content of any electronic communications). 18 U.S.C. ' 2703(c), (d). It also allows the government to obtain the contents of e-mails and other electronic communication that have been held in storage for more than 180 days pursuant to the same type of court order. 18 U.S.C. ' 2703(a). The standard for obtaining a court order under the SCA is relatively low: The government needs to offer “specific and articulable facts showing that there are reasonable grounds to believe that the ' information sought [is] relevant and material to an ongoing criminal investigation.” 18 U.S.C. ' 2703(d). This standard is well below the probable cause standard required by the Fourth Amendment for searches and seizures. Thus, rather than protecting a user's privacy, the ECPA has created an open window through which law enforcement can surreptitiously gather information about an individual's communications and conduct electronic surveillance of a person's movements.

Moreover, in applying for an order under the SCA, the government can seek to prohibit the service provider to which the order is directed from notifying “any other person of the existence” of the order. 18 U.S.C.
' 2705 (b). Courts will grant such a gag-order if “there is reason to believe that notification of existence of ' the court order will” endanger a person's life or physical safety; cause a subject to flee; lead to the destruction of evidence or the intimidation of witnesses; or “otherwise seriously jeopardizing an investigation.” Id. The last category is so broad as to allow law enforcement to keep the vast majority of SCA orders secret.

DOJ Increasing Use of SCA Orders

The DOJ has sought court orders to obtain a wide variety of stored electronic information from service providers. For example, as The Wall Street Journal recently reported, the U.S. government obtained secret orders under the SCA requiring certain service providers to disclose information regarding the accounts of Wikileaks volunteer Jacob Applebaum. Julia Angwin, Secret Orders Target Email, WikiLeaks Backer's Information Sought, Wall Street Journal, Oct. 10, 2011. Federal prosecutors reportedly obtained court orders in December 2010 directing Internet service providers to turn over the IP addresses from which Applebaum logged into his accounts, as well as the e-mail and IP addresses of people with whom Applebaum corresponded, dating back to Nov. 1, 2009. One of the service providers unsuccessfully fought the government's order, but was able to get the order unsealed. Another won the right to notify the subscribers whose information was sought. Id.

How often are these orders used? According to The Wall Street Journal, this data is difficult to obtain because of the secrecy surrounding the orders, but Google has previously disclosed that in the last six months of 2009 it received 4,601 requests from the government for information (including, but not limited to, requests under the SCA) and complied with 94% of these. This information suggests that service providers are rarely successful in challenging these types of orders.

Criticism of the SCA

As the government's use of the SCA to obtain information without a search warrant increases, so, too, does criticism of the practice. There is a growing debate among law enforcement, defense attorneys, legal scholars and legislators regarding the SCA's continued relevance in light of the many technological advances since its enactment in 1986, when e-mail, instant messaging and the Internet were in their infancy. On the other hand, supporters of the SCA have expressed concern that any proposed changes to the act would prolong and undermine criminal and national security investigations.

Meanwhile, various courts, including the U.S. Court of Appeals for the Sixth Circuit and the U.S. District Court for the Eastern District of New York, have questioned the constitutionality of these orders in cases where the government obtained e-mails and cell phone information without a search warrant. For example, in United States v. Warshak , 631 F.3d 266 (6th Cir. 2010), the defendant business owner challenged his conviction related to a scheme to defraud his customers, claiming that the government violated his Fourth Amendment rights when it compelled an Internet service provider to turn over 27,000 of his e-mails without notice, under authority of the SCA. Noting that the Fourth Amendment must keep pace with technological progress, the Sixth Circuit compared Internet service providers with the postal service. Just as the postal service is a mere intermediary for the exchange of letter communications, Internet service providers too are intermediaries for electronic letters. Thus, it would “defy common sense to afford e-mails lesser Fourth Amendment protection.” The Sixth Circuit concluded that the SCA is unconstitutional to the extent it allows government to obtain e-mails without a warrant. Nonetheless, because the agents relied in good faith on the provisions in the SCA, the court found that the exclusionary rule did not apply and refused to suppress the e-mail evidence.

Earlier this year, in In the Matter of an Application of the United States of America For an Order Authorizing the Release of Historical Cell-site Information No. 10-MC-897(NGG), 2011 U.S. Dist. LEXIS 93494 (E.D.N.Y Aug. 22, 2011), New York's Eastern District Court also found a Fourth Amendment violation where the government applied for an order directing Verizon Wireless to disclose the cell-site location records of an individual for a period of approximately 113 days. Judge Nicholas G. Garaufis denied the application, citing case law holding that prolonged electronic surveillance of an individual's location constitutes a Fourth Amendment search that requires probable cause and a search warrant. The court adopted the reasoning that an individual has a reasonable expectation of privacy over the totality of his movements over the course of a period of time. Permitting access to cumulative cell-site location records, which are only visible to the service provider, would allow the government to intrude into information that is objectively recognized as highly private.

The Future of Electronic Surveillance Under the SCA

Although courts are more carefully scrutinizing government applications for orders under the SCA in order to protect Fourth Amendment privacy concerns, the SCA has yet to be amended. The government's efforts to secretly obtain information from Internet and cell phone service providers proceeds unabated. Even in the Warshak case, the court ultimately allowed the government to use the unlawfully obtained evidence because of the agent's good-faith reliance on the SCA.

Even more unsettling is the fact that a person may never know he or she is the subject of an order. Communications service providers are prohibited from notifying customers of the order without court permission, a departure from their typical practice when otherwise subpoenaed by law enforcement. Therefore, individuals do not have the opportunity to intervene or object to an SCA order before the government obtains information about them, leaving them with no better safeguard than to rely on their Internet and cell phone service providers to contest such orders and fight to protect their privacy rights.

In fact, the government has recently gone to great lengths to make sure that even their tracking devices and methods remain secret. For example, prosecutors in a recent Arizona case were willing to agree that their use of a “stingray” (a device that can locate a mobile phone even when it's not in use) to track the defendant was a Fourth Amendment search and seizure. Jennifer Valentino-Devries, Feds Shift Tracking Defense, Wall Street Journal, Nov. 3, 2011, at A3. Legal experts view this as a tactical move to avoid revealing information about the device. Although the government conceded the issue in this case, its position still remains that the use of such devices does not constitute a “search” under the Fourth Amendment because people have no reasonable expectation of privacy while using cell phones. The government continues to take the same legal position with respect to other electronic tracking techniques, such as GPS devices.

Conclusion

In response to growing privacy concerns, public interest groups and technology companies have been lobbying Congress to update the SCA. While it remains to be seen whether Congress will adopt greater protections, the courts continue to curtail the government's use of the SCA when it contravenes the Fourth Amendment protections against warrantless searches and seizures. Attorneys for individuals, businesses and communication service providers should therefore keep abreast of these developments in order to safeguard their clients' electronic privacy rights.

Jonathan B. New, a member of this newsletter's Board of Editors and a former assistant U.S. attorney, is a partner in Baker Hostetler's white collar defense and corporate investigations practice in the New York office. Michelle Young is an associate at the firm.

For Twitter, LinkedIn, Facebook and Google+ followers, click here to subscribe to Business Crimes Bulletin at a special introductory rate of $349. This offer is valid for new subscribers only.