FBI must reveal computer snooping technique

[Aimee Farr]

Harmon wrote:

>       Interesting -- where did I get the idea that warrants for
> "surreptitious entry" were only allowd for cases of national security. I
> thought Reno was trying to get Congress to pass legalizing this, but was
> turned down.
>

SURREPTITIOUS ENTRY WARRANTS.
Surreptitious entry warrants for silent video surveillance (outside of Title
I's "oral, wire or electronic communication") were approved in United States
v. Torres, 751 F.2d 875 (7th Cir. 1984). Defendants argued that secret video
surveillance was a 1984 Orwellian "telescreen" - and unconstitutional
pursuant to the fourth amendment. They lost. Defendants argued the warrant
authorizing the search did not satisfy the particularization requirements of
the fourth amendment. They lost. The Judge Posner held the warrant satisfied
Title III's 2518, and since those requirements "related" to the
constitutional requirements, the fourth amendment was satisfied. Courts have
adopted Torres. The bottom line on video surveillance is that the government
is required to show that "normal investigative techniques...reasonably
appear to be unlikely to succeed if tried." Most courts still view video
surveillance as outside of the ECPA. Judge Posner said, "There is no right
to be let alone while assembling bombs in safe houses." (Later courts
extended this to all Title I offenses.)

The requirements that emerge from the Torres line are: (1) probable cause in
respect to the person and criminal offense; (2) particular description in
the court order of the place and things that are to be viewed; (3)
minimization of the recording activities not related to the crime under
investigation; (4) that normal investigative techniques have failed in the
sense that they are unlikely to be successful or appear too dangerous; (5)
that the period of the surveillance be limited to that time necessary to
achieve the objective of the search or no longer than 30 days.

I find Torres analogous, and it is an example of how courts have considered
novel technologies and devices under Title I of the ECPA or "Title III."
[FN1]

GENERAL SEARCH/MINIMIZATION?
The minimization requirements of 2518(5) and the fourth amendments
prohibition on a "general search" were gutted in Scott v. United States, 436
U.S. 128 (1978), which rejected the view that monitors had to use good faith
efforts to minimize the surveillance of non-pertinent conversational
content. Scott factors: (1) the nature of the offense; (2) the type and
location of the device; (3) the nature of the non-pertinent conversations.

2510 INTERCEPTION?
Under Title I analysis the question is if there is an "intercept." See Steve
Jackson Games (email wasn't "in flight.") The government basically contends
they didn't get anything "in flight," as part of the *contemporaneous*
requirement. (And, what if they did? There is no suppression remedy for
electronic communications.) SJG is mentioned in Scarfo discussions, and SJG
is heavily criticized for it's circumventional nature since the ECPA was
meant to extend protection to electronic communications. However, the
possibility of the physical seizure of equipment was likely considered by
congress in 1986. (Were keystroke loggers?) Furthermore, all the cases cited
for the government's proposition in email, voicemail, etc. are basically
SJG - things that congress had knowledge of when they wrote the law. Mostly
before/after cases. A keystroke logger is a technical circumvention. If
upheld, that is a floodgate to eviscerate the protections afforded us under
the ECPA and congressional intent by outpacing what the law has had the
opportunity to consider.

INTERSTATE NEXUS?
They also changed Title III with the ECPA to address private carriers and
in-house private systems because THEY AFFECT INTERSTATE OR FOREIGN COMMERCE
(added clause under ECPA). (Previously, in house systems were exempt from
"wire communications," by "common carrier" language, and analyzed under the
"oral" provisions.) Today, in a like manner, "electronic communication"
includes any transfer.... transmitted by a ....SYSTEM...that _affects
interstate or foreign commerce_. See 2510(12). This was within one computer,
is that an "electronic communications system" 2510(14)? If so, the
government says there is no interstate commerce connection between your
keyboard and your computer.

The addition of 'interstate commerce' clause is often cited for the
proposition that Congress meant to *extend* protection to private systems.
(And a whole slew of cases exempting private systems under Title I now have
no precedential value.) However, the government cited a passage in the
congressional record to the contrary in regard to wire communications, but
I'm uncertain of the context of the specific testimony. I don't think the
same considerations apply to electronic communications.

A STAND-ALONE PIECE OF EQUIPMENT.
The Government argues that based on congressional testimony related to wire
communications (think telephone and aural), the definition of electronic
communications do not include transmissions in one piece of equipment
(interstate nexus).

The attached phone recorder hardware question, somewhat analogous under wire
communications, was settled by the "aural *or other*" addition to ECPA for
the definition of "intercept." (Previously, it had to an "aural acquisition"
to be an intercept.) Now, Title I treats nonmonitored recording as an
interception. Before, courts differed as to whether it was an "aural
acquisition" (Turk, 5th Cir.), or a "mere accessory designed to preserve the
contents of the communication" (United States v. Harpel, 493 F.2d 346, 350
(10th Cir.1974). I find that analogous as to congressional intent.

~Aimee

1. Title III was 1968. Today we have Title I, Title II & Title III of the
ECPA. The former Title III is Title I of the ECPA. Some courts refer to
Title I was the Wiretap Act and Title II as the Stored Communications Act.
Everybody still calls it "Title III."