Legal Aspects of Electronic Privacy

Legal Aspects of Electronic Privacy CSCI 327

Why should I even care about Privacy? • Why I should not care about privacy: • I am not doing anything wrong. I have nothing to hide. • It's just too hard to change all those default privacy settings. • I am safe with all these other zebras. That lion will not attack me. • Why you should care about privacy: • I would not give a company a blank check to do whatever they want with my money. Why should I let them take my information? • Bi-Lo and my ice cream eating habits: • Sell that info to Byers. Hence, more annoying advertising. • Sell that info to Blue Cross, hence a higher insurance premium. • Give that info to Police. The serial killer appears to be fat, so tell us everyone that eats lots of junk food in this town so we can get warrants to search their houses.

Workplace Privacy • you have essentially no right to privacy in the workplace

Is your right to privacy protected by the U.S. Constitution? • No. Well, maybe. ... • 1st Amendment • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or … • 14th Amendment • No State shall deprive any person of life, liberty, or property, without due process of law. • 9th Amendment • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

4th Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Olmstead v. United States • Olmstead ran a bootleg operation • prohibition officers tapped his phone via the basement without a warrant • they did not enter his apartment • in 1928, Supreme Court ruled Olmstead's rights were not violated

Federal Communications Act of 1934 • illegal to intercept and reveal wire communications without a warrant • FBI still wiretapped phones during WWII for national security purposes

Katz v United States • without a warrant, police placed a bug on the outside of a public phone booth used by Katz to make illegal bets • In 1967, the US Supreme Court ruled Katz's rights were violated. • Katz reasonably thought his conversation was private, hence the recording was an illegal search and seizure • the 4th amendment protects people, not places • the 4th amendment governs seizure of tangible items, as well as recording of oral statements

Wiretaps … • 1968 - Crime Control and Safer Streets Act • wiretap warrants require probable cause • annual report of wiretaps submitted to congress • 1972 - US Supreme Court • warrantless wiretaps illegal, even regarding national security • 1994 - Communication Assistance for Law Enforcement Act • telecom companies must design their digital systems to be tap-able

Electronic Communications Privacy Act • enacted in 1986 • ECPA was an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which was primarily designed to prevent unauthorized government access to private electronic communications. • Title I of ECPA protects electronic communications while in transit. • Title II of the ECPA, protects messages stored on computers. • Title III prohibits the use of pen register and/or trap and trace devices to record dialing, routing, addressing, and signaling information used in the process of transmitting wire or electronic communications. http://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act

Export of Encryption Technology • As of January 2000: • Encryption products with less than 64-bits are freely exportable. • "Retail" encryption products are widely exportable to all but certain "terrorist" nations though still subject to a government review and reporting requirements. • Non-retail products are also exportable, subject to similar requirements, to most non-government users. • Some non-proprietary source code is exportable to most countries after notice to the government.

NSA and FISA • Starting during WWII, the Signal Security Agency monitored all telegrams entering and leaving the US • The program was later used to • fight organized crime • war on drugs • monitor anti-Vietnam war groups • NSA ended that program in 1975 • Foreign Intelligence Surveillance Act of 1978 (FISA) • warrant required with 72 hours if "US person" involved • amended by Patriot Act in 2001 to include terrorism • warrantless wiretaps of US citizens ended in 2007 • replaced by Protect America Act of 2007, which expired • replaced by FISA Amendments Act of 2008 • granted immunity to telecoms that had helped the NSA

Patriot Act Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) • allows officials to track emails without showing probable cause • allows roving surveillance for intelligence (not just crime investigation), tapped device does not have to be owned by the suspect • search warrants no longer have to be served • warrants for records do not require probable cause • …

Patriot Act Contents • Numerous amendments to existing laws • E.g. FERPA • Universities may supply student info to law enforcement without student consent or notification • requires warrant related to terrorism • Monitoring of Foreign Students

Total Information Awareness • In January 2002, DARPA created the Information Awareness Office (IAO) • In February 2003, IAO began the Total Information Awareness program • program director was Admiral Poindexter, who had been convicted of lying to Congress and destroying documents during Iran-Contra

US v JonesJanuary 23, 2012 • By a vote of 9 to 0: • "the Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment." • The justices split 5-4 on the reasoning and the breadth of the ruling in opinions written by justices Scalia and Alito: • Scalia argued that the appropriate ground for resolving Jones' case centered around the government's physical trespass on a private citizen's "effect" (his car), • Alito argued that the majority opinion leaves open too many questions by avoiding the inevitable reasonable expectation of privacy inquiry that other cases will surely present. Furthermore, Alito predicted that the narrow grounds used for deciding the case may not apply to many of the future Fourth Amendment cases, where the police need not commit a physical trespass to use electronic surveillance to gather information. http://en.wikipedia.org/wiki/United_States_v._Antoine_Jones

Question • Your Analysis? • does the government have too much or too little ability to conduct surveillance

Legal Aspects of Electronic Privacy