Cybertelecom Federal Internet Law & Policy An Educational Project

Fourth Amendment :: Reference

Laws

• Cable Communications Policy Act of 1984
• CALEA
• Crime Control Act of 1973 "requires that State criminal justice information systems, developed with Federal funds, be protected by measures to ensure the privacy and security of information."
• Electronic Communications Privacy Act
• Electronic Funds Transfer Act of 1980
• Foreign Intelligence Surveillance Act
• Privacy Act of 1974
• Privacy Protection Act of 1980
• Right to Financial Privacy Act of 1978
• Wiretap Act
• 47 CFR s 15.9 Prohibition Against Eavesdropping

Executive Orders

• Executive Order No. 12036, “United States intelligence Activities, ” Jan. 24, 1978 and updated as Executive Order No. 12333 on Dec. 4, 1981;
• Executive Order No. 12139, “Exercise of Certain Authority Regarding Electronic Surveillance, ” May 23, 1979.

Department of Justice Guidance

• Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations Computer Crime and Intellectual Property Section, Criminal Division, DOJ (2009)
• US DOJ Search Manual Secret Service:  Best Practices for Seizing Electronic Evidence Secret Service: Best Practices for Seizing Electronic Evidence (2002)
• DOJ: Field Guidance on New Authorities that Relate to Computer Crime and Electronic Evidence Enacted in the USA Patriot Act of 2001

European Commission

• Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime, COMMUNICATION FROM THE COMMISSION  TO THE COUNCIL, THE EUROPEAN PARLIAMENT,  THE ECONOMIC AND SOCIAL COMMITTEE AND  THE COMMITTEE OF THE REGIONS 26.1.2001

Transparency

• Richard Salgado, Building on Surveillance Reform, CISCO (Oct. 12, 2016), (“Today, we've updated our Transparency Report on government requests for user data. Globally, we received 44,943 government requests for information regarding 76,713 accounts during the first half of 2016.”)

Caselaw

• See ECPA Caselaw
• US v Arnold, No. 06-50581 (9th Cir. Apr. 21 2008) (suspicionless searches of laptops at borders upheld), 9th Cir 5/7/2008

Links

• NCSL States' Electronic Surveillance Laws

Books

• Fishman & McKenna, WIRETAPPING AND EAVESDROPPING (2d ed. 1995 & 2001 Supp.)
• Robert Ellis Smith, “Ben Franklin’s Web site; privacy and curiosity from Plymouth Rock to the Internet,” (Privacy Journal 2004).

Papers

• Keep Big Brother's Hands Off The Internet  By Senator John Ashcroft  USIA Electronic Journal, Vol. 2, No. 4, October 1997
• R. Barnes, B. Schneier, C. Jennings, T. Hardie B. Trammell C. Huitema D. Borkmann, Confidentiality in the Face of Pervasive Surveillance: A Threat Model and Problem Statement, IETF RFC 7624 (August 2015) ("Since the initial revelations of pervasive surveillance in 2013, several classes of attacks on Internet communications have been discovered. In this document, we develop a threat model that describes these attacks on Internet confidentiality. We assume an attacker that is interested in undetected, indiscriminate eavesdropping. The threat model is based on published, verified attacks.")
• Bloustein, E. J. (1964). Privacy as an aspect of human dignity: An answer to Dean Prosser. 39 N.Y.U. L. Rev 962.
• DOJ, Criminal Resource Manual: 1053 Exceptions to the Prohibitions -- Interceptions by Providers of Wire or Electronic Communications Services (1997)
• James X. Dempsey, Communications Privacy In The Digital Age: Revitalizing The Federal Wiretap Laws To Enhance Privacy Albany Law Journal Of Science & Technology, Volume 8, Number 1, 1997
• Doyle, Charles & Stevens, Gina  Marie “Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping,” Congressional Research Service  December 3, 2009, CRS-2
• Best Practices for Online Service Providers, EFF 2/15/2005
• Thomas R Greenberg, E-Mail and Voice Mail: Employee Privacy and the Federal Wiretap Statute, 44 Am. U. L. Rev. 219 1994-1995
• Cyber Crime Course Course Description and Syllabus University of Oregon School of Law Spring Semester 2004 Adjunct Professor Sean B. Hoar
• CHARLES H. KENNEDY, PETER P. SWIRE, State Wiretaps and Electronic Surveillance After September 11, SSRN 9/12/03
• Orin Kerr
  • Kerr, Orin S., The Fourth Amendment and the Global Internet (April 23, 2014). Stanford Law Review, Vol. 65, 2015, Forthcoming. Available at SSRN:
  • Computer Records and the Federal Rules of Evidence Orin S. Kerr USA Bulletin (March 2001) 
  • Orin Kerr, Search Warrants in an Era of Digital Evidence, SSRN 2/25/2005
• Alex Kozinski & Stephanie Grace, Pulling Plug on Privacy: How Technology Helped Make the Fourth Amendment Obsolete , T HE D AILY (June 22, 2011), www.thedaily.com/page/ 2011/06/22/062211-opinions-oped- privacy-kozinski-grace-1-2/
• Wesley MacNeil Oliver, Western Union, The American Federation of Labor, Google, and the Changing Face of Privacy Advocates, 81 Miss. L.J. 972, 980 (2012)
• Parsons, Christopher A., The (In)Effectiveness of Telecommunications Transparency Reports (June 21, 2016).
• Peha, Jon M., The Dangerous Policy of Weakening Security to Facilitate Surveillance (October 4, 2013).
• Ronald Standler, Should Disclosure of Information Always Destroy Privacy of Information (Oct. 2007)
• Pew Research Center, Public Confidence in the Security of Core Communications Channels is Low (2014)
• Stevens & Doyle, Privacy: An Overview of Federal Statutes Governing Wiretappping and Electronic Eavesdropping, CRS REP.NO. 98-327A (Aug. 8, 2001)
• Recognizing and Meeting Title III Concerns in Computer Investigations Robert Strang USA Bulletin (March 2001) 
• Raymond L. Hogge, Jr, An Introduction For Virginia Employers To The Federal Wiretapping Act And The Electronic Communications Privacy Act - or why they tell you -this call may be monitored for quality control purposes" January 2001
• Peter Unger, Fulbright & Jaworski, E-Data Management: Complying with Data Requests from Government Webcast, December 10, 2001
• Powerpoint slides Tapping the Net: A Study of the Wiretap Debates Karin Cheung Paper for MIT 6.805/STS085: Ethics and Law on the Electronic Frontier, Fall 1999
• Alan Westin, The Wiretapping Problem, 52 Columbia I.aw Re\riew 164, 172 n. 35 (1952)
• Samuel Warren & Louis Brandeis, The Right To Privacy, 4 HARV. L. REV. 193 (1890)
• STATE OF NEW YORK, MINUTES AND TESTIMONY OF THE JOINT LEGISLATIVE COMMITTEE APPOINTED TO INVESTIGATE THE PUBLIC SERVICE COMMISSIONS 103 (1916) (testimony of Police Commissioner Arthur Woods)

News

• Police Try To Bring Wiretapping Charges Against Woman Who Filmed Them Beating A Man, Techdirt 8/18/2011
• Yes Virginia, Big Brother is following you on Twitter, Gigaom 8/18/2011
• DOJ Had 400% More Emergencies That Required Immediate Warrantless Info From ISPs?, Techdirt 8/10/2011
• Feds Defend Seizure of WikiLeaks Supporter's Laptop, Wired 8/1/2011
• Prosecutors Demand Laptop Password in Violation of Fifth Amendment, EFF 7/11/2011
• Protect Your Computer and Phone from Illegal Police Searches, EFF 7/5/2011
• DHS Boss: 'Very, Very, Very Few People Get A Pat Down'; Reality: ~1.8 Million People Per Month, Techdirt 5/20/2011
• Supreme Court OKs Warrantless House Search, Wired 5/20/2011
• FBI Vehicle-Tracking Device: The Teardown, Wired 5/9/2011
• FBI Chastised by Court for Lying About Existence of Surveillance Records, EFF 5/6/2011
• ACLU: Michigan cops stealing drivers' phone data, CNET 4/28/2011
• "Who Has Your Back?" In Depth: Which Companies Promise To Tell Users About Government Data Requests?, EFF 4/28/2011
• ACLU: Michigan cops stealing drivers' phone data, CNET 4/25/2011
• "Who Has Your Back?" In Depth: Which Companies Promise To Tell Users About Government Data Requests?, EFF 4/25/2011
• U.S. police increasingly view private email, instant messages, CW 4/14/2011
• U.S. can conduct offsite searches of computers seized at borders, court rules, CW 4/8/2011
• Ian Walden, Law Enforcement Access in a Cloud Environment, Queen Mary School of Law Legal Studies Research Paper 3/25/2011
• Student Who Found GPS Device On His Car Due To Reddit Comment Sues The FBI, Techdirt 3/7/2011
• Feds Appeal Warrantless-Wiretap Defeat, Wired 2/23/2011
• PIC Opposes TSA's Secret Evidence in Body Scanner Case, EPIC 2/11/2011
• Federal Officials Finally Admit That Photographing Federal Buildings Is Not A Crime, Techdirt 1/31/2011
• Has The Fourth Amendment Been Dismantled By Technology And The Courts?, Techdirt 1/31/2011
• Twitter Puts Spotlight On Secret F.B.I. Subpoenas, Huff 1/12/2011
• Iceland Officials Ask US To Explain Why It's Trying To Get Lawmaker's Twitter Info, Techdirt 1/12/2011
• California Supreme Court Allows Warrantless Searches of Cell Phones, EPIC 1/4/2011
• Calif Court: Cops Can Search Texts Without Warrant, NPR 1/4/2011
• Professors: TSA scanners simple to dupe, CNET 12/17/2010
• Study: TSA Whole Body Scanners Ineffective at Detecting Explosives, EPIC 12/17/2010
• Yet Another Court Explains To The Obama Administration That The 4th Amendment Means You Need To Get A Warrant, Techdirt 12/17/2010
• Breaking News on EFF Victory: Appeals Court Holds that Email Privacy Protected by Fourth Amendment, EFF 12/17/2010
• The economic implications of surveillance-enhancing design, Crawford 11/19/2010
• M. Blane Michael, Reading the Fourth Amendment: Guidance from the Mischief that Gave it Birth, NYLR Vol. 85 Num. 4 Oct. 2010, NYLR Vol. 85 Num. 4 11/17/2010
• Opt-Out Day Called Against Invasive Body Scanners, Wired 11/17/2010
• 100 Naked Citizens: 100 Leaked Body Scans, Wired 11/17/2010
• Website Publishes 100 Pictures Of Federal Security Body Scans, NPR 11/17/2010
• TSA Investigating 'Don't Touch My Junk' Passenger, Wired 11/17/2010
• EFF Sues DOJ Over New Wiretap Push - Asks government to prove why these changes are necessary, dslreports 11/3/2010
• FBI's GPS Tracking Raises Privacy Concerns?, NPR 10/27/2010
• DHS scoured social media sites during Obama inauguration for 'items of interest', CW 10/15/2010
• Govt relies on Facebook "narcissism" to spot fake marriages, fraud, Ars Technica 10/15/2010
• School settles laptop spying case to "protect taxpayers", Ars Technica 10/12/2010
• Caught Spying on Student, FBI Demands GPS Tracker Back, WIREd 10/8/2010
• U.S. eyes easing Net wiretap rules, Globe and Mail 9/27/2010
• Report: Feds to push for Net encryption backdoors, CNET 9/27/2010
• U.S. To Seek Broad Wiretap Laws for Internet, Geist 9/27/2010
• Feds Issue Guide To Snitching on Your Terrorist Neighbor, Wired 9/22/2010
• School Agrees To Pay Student $33,000 After Teacher Dug Through Her Phone To Find Private Nude Photos, Techdirt 9/22/2010
• Appeals court guts landmark computer privacy ruling, Wired 9/17/2010
• EFF Files Appeal of Warrantless Wiretapping Case Jewel v. NSA, EFF 8/16/2010
• Judge Says DHS Can't Hang Onto Travelers Laptops To Search Much Later Without A Warrant, Techdirt 6/11/2010
• Court Says Border Patrol Can Take Your Laptop For Off-Site Search If They Have Reasonable Suspicion, Techdirt 6/4/2010
• Maryland Police Confiscate Biker's Computers After He Catches Questionable Activity On Helmet Cam, Techdirt 4/21/2010
• Court Says Bush Illegally Wiretapped Two Americans, Wired 4/1/2010
• Court Rejects Government's Executive Power Claims and Rules That Warrantless Wiretapping Violated Law, EFF 4/1/2010
• Justice Dept. defends warrantless cell phone tracking, CNET 2/16/2010
• FBI Broke Law Spying on Americans Phone Records, Post Reports, Wired 1/21/2010
• Report Confirms FBI Misuse of Authority to Obtain Phone Records, EFF 1/21/2010
• Once Again, FBI Caught Breaking The Law In Gathering Phone Call Info; But Real Issue Is Why Telcos Let Them, Techdirt 1/19/2010
• ACLU Looking To Challenge Homeland Security On Border Laptop Searches, Techdirt 1/15/2010
• EPIC Files Lawsuit for Information about "Digital Strip Search" Devices, EPIC 12/22/2009
• Yahoo Doesn't Want You To Know Its Spying Price List; Issues DMCA Takedown, Techdirt 12/8/2009
• Yahoo, Verizon: Our Spying Records Would 'Shock,' 'Confuse' Consumers, Wired 12/4/2009
• Graduate Student Unveils Sprint's GPS Sharing With Feds - Eight million 'pings' to user tracking database in 13 months..., dslreports 12/4/2009
• Government Will Release Some Telco Wiretap Lobbying Documents - Though they'll protect AT&T and Verizon company identities, dslreports 11/13/2009
• Justice Dept. asked for news site's visitor lists, CNET 11/10/2009
• NSA-Intercepted E-Mails Helped Convict Would-Be Bombers, Wired 9/10/2009
• Privacy Office approves laptop searches without suspicion at U.S. borders, CW 9/1/2009
• ACLU sues for information on laptop searches at U.S. borders, CW 8/27/2009
• Ninth Circuit Declines to Read Common Law Loyalty Obligations Into CFAA, Techlaw 9/17/2009
• Cyber Bullying Case Officially Dismissed for Vagueness, Wired 9/1/2009
• Judge Issues Opinion Overturning Lori Drew's Conviction, Citizen's Media 9/1/2009
• NSA Shields Government Networks With More Secret AT&T Rooms, Wired 7/7/2009
• Dozens of AT&T/Verzion Wiretap Suits Dismissed - Meet the new boss, same as the old boss..., dslreports 6/5/2009
• NSA Still 'Overcollecting' American Data - Even after laws were changed to broaden their mandate..., dslreports 4/16/2009
• Jewel v. NSA Roundup: The Media on Obama's Position on State Secrecy and Warrantless Wiretapping, EFF 4/16/2009
• Obama Administration Embraces Bush Position on Warrantless Wiretapping and Secrecy, EFF 4/7/2009
• Vast Spy System Loots Computers in 103 Countries, NYT 3/31/2009
• Bush Administration Claimed Fourth Amendment Did Not Apply to NSA Spying, EFF 3/3/2009
• Judge doesn't buy state secrets privilege, OKs wiretap suit, Ars Technica 1/7/2009
• Colbert on NSA Spying, EFF 10/21/2008
• U.S. Allegedly Listened In on Calls of Americans Abroad, Wash Post 10/10/2008
• NSA Spying on Americans in the Green Zone, CDT 10/10/2008
• American Citizen Detained At Border Due To Drawing Of An SUV, Techdirt 10/10/2008
• EFF Sues NSA, President Bush, and Vice President Cheney to Stop Illegal Surveillance, EFF 9/22/2008
• EFF Sues The Gov't Twice In One Day: Over Surveillance And ACTA, Techdirt 9/22/2008
• Laptop Searches in Airports Draw Fire at Senate Hearing, NYT 6/26/2008
• EFF Asks Appeals Court To Rehear Case On Laptop Searches At The Border, Techdirt 6/17/2008
• Congress worries that .gov monitoring will spy on Americans, CNET 2/28/2008
• EFF Asks For Details On Border Laptop & Mobile Phone Searches, Techdirt 2/11/2008
• National Dragnet Is a Click Away, Wash Post 3/7/2008
• Bush Wants Spy Law Changes Set in Stone, Ecommerce Times 9/21/2007
• Verizon Says It Turned Over Data Without Court Orders, Wash Post 10/18/2007
• FBI's Wiretap Platform Unveiled - Carnivore is a total wimp..., DSLreports 8/29/2007
• Telecom Firms Helped With Government's Warrantless Wiretaps, Wash Post 8/28/2007
• Ma Bell Was 80 Years Ahead of Me, Tech Lib Front 8/14/2007
• Congress Votes to Expand Warrantless Wiretapping, CDT 8/8/2007
• Your Help Needed in Analyzing FBI Docs, eweek 7/27/2007
• FBI remotely installs spyware to trace bomb threat, CNET 7/18/2007
• Verizon: Spying On You a First Amendment Right - Government working hard to have surveillance cases dismissed..., Broadband Reports 5/8/2007
• Verizon Says It Has A First Amendment Right To Illegally Give Your Call Records To The Government, Techdirt 5/8/2007
• Feds, AT&T Urge for Dismissal of Wiretap Trial, Ecommerce Times 3/14/2007
• Revealed: FBI Internet Surveillance More Extensive Than Previously Known, Democracy Now 2/1/2007
• Did Shaquille O'Neal Raid The Wrong Home For Child Porn Over Mistaken IP Address?, Techdirt 10/24/2006
• Internet wiretaps pose risks, challenges: experts, AFP 6/14/2006
• \DOJ, ISPs: No Deal on Data Retention - No agreement reached, no follow-up meeting set, Broadband Reports 6/6/2006\
• U.S. wants Web usage info saved, MSNBC 6/2/2006
• FBI wants Internet records kept 2 years, Reuters 6/2/2006
• Why Privacy Matters Even for the Innocent, IP Democracy 5/19/2006
• One day I can say “I called it…”, Privacy Clue 5/16/2006
• Tracking of calls sparks furor in U.S., Globe and Mail 5/12/2006
• Anger grows over NSA surveillance report, CNET 5/12/2006
• Mandatory Labeling, ISP Data Retention Proposal Raises Concern, CDT 4/24/200
• 6ISP snooping gaining support, CNET 4/14/2006
• CDT and EFF Oppose Unprecedented Wiretapping Scheme for In-Flight Communications, CDT 8/5/2005
• Court: No warrant needed to search your work PC, CNET 1/7/2005
• Feds try again for wiretapping conviction, CNET 9/7/2004
• Police raid Internet cafés, NYTimes 5/14/2004
• Meyer Berger, Tapping the Wires, NEW YORKER, June 18, 1938
• Acquit Kingsbury for Wiretapping: In Ordering Defendants Freed Court Says Evidence Did Not Indicate Bad Faith, N.Y. TIMES, May 25, 1917, at 20.
• Seymour Wires Tapped on Order Given By Woods, N.Y. TIMES, May 18, 1916, at 1 (“The practice of wiretapping . . . goes back as far as 1895 . . . . The company . . . interpreted the law to mean that it was its duty to aid and assist the public officials in apprehending and detecting crime . . . .” (quoting John L. Swayze, general counsel of the New York Telephone Company)).