Intercepting Communications: Title III Applied to On-Line Conduct

1. Intercepting Communications: Title III Applied to On-Line Conduct Sean B. Hoar sean.hoar@usdoj.gov

2. Class Overview I. Intercepting communications - Title III applied to on-line conduct II. 18 U.S.C. §§ 2510-22; 3121-27 III. United States v. Seidlitz IV. Smith v. Maryland V. United States v. Smith VI. Fraser v. Nationwide VII. Konop v. Hawaiian Airlines VIII. United States v. Councilman Bonus Current Events Trivia Question: Within the past two years, who resigned from public office, due to evidence derived from a federal wiretap?

3. Trivia Question Answer • Eliot Spitzer was ousted as the Governor of New York in March, 2008, for his involvement in a high-end prostitution service called Emperor’s Club VIP based in New York City. He allegedly spent over $15,000 during a six-month period on women from the service, and over $80,000 on prostitutes over several years while Attorney General and then Governor. His conduct was discovered through suspicious monetary transfers and conversations intercepted on a federal wiretap. The federal wiretap intercepted more than 5000 telephone calls and text messages.

4. United States v. Seidlitz589 F.2d 152 (4th Cir. 1978) Facts:Seidlitz, Deputy Project Director for Optimum Systems Inc. (OSI), helped build a computer facility in Maryland for the Federal Energy Administration. Seidlitz then left OSI to form his own computer firm. He later remotely accessed the OSI computer network and stole source code for the WYLBUR software system. OSI identified Seidlitz by tracing his communications with the OSI network. Search warrants were served on Seidlitz’s office and home and 40 rolls of computer paper containing the WYLBUR source were found. Seidlitz was charged with transmitting phone calls in interstate commerce as part of a scheme to defraud OSI. Cathode Ray Tube (CRT) computers such as these were used at the facility in Rockville, MD where Seidlitz was charged with electronically intruding.

5. United States v. Seidlitz589 F.2d 152 (4th Cir. 1978) Issues: (1) Whether Title III or the Fourth Amendment were violated when, with the consent of the owner of the network (a party to the communications), Seidlitz’s telephonic communications with the OCI network were obtained, and (2) whether Title III or the Fourth Amendment were violated when Seidlitz’s telephone calls into the OCI computer network were traced. Holding: (1) Title III specifically authorizes the interception of a communication by a party to the communication or by a person acting with the consent of a party to the communication. (2) The telephone traces were not the sort of “interceptions” of communications proscribed by Title III in that they did not obtain content. Title III was “intended to protect the privacy of the communication itself, and not the means of communication.” The court questioned whether someone “caught with their hand in the cookie jar” could raise objections to the evidence . . .

6. Smith v. Maryland, 90 S.Ct. 2577 (1979) Facts:After Patricia McDonough of Baltimore was robbed, she gave police a description of the robber and the car he was driving (1975 Monte Carlo – pictured below). After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. By tracing the license plate number, police learned that the car was registered in the name Michael Lee Smith. Without a warrant or court order, they installed a pen register to record numbers dialed from the phone in his home. When the police finally searched Smith’s home, they found a phone book with a page turned down to McDonough’s name and number. Smith was subsequently convicted of robbery, but he sought to suppress evidence obtained from the pen register.

7. Issue: Does the installation and use of a pen register constitute a search within the meaning of the Fourth Amendment? Holding: Relying upon the two-part Katz test, the court held that (1) “the petitioner in all probability entertained no actual expectation of privacy” and even if he did, (2) his expectation was not “legitimate.” The installation and use of the pen register device was therefore not a search within the meaning of the Fourth Amendment and no warrant was required. Smith v. Maryland, 90 S.Ct. 2577 (1979) A pen register device such as this was at issue in Smith v. Maryland. Note the roll of paper where the machine prints out the numbers dialed.

8. United States v. Smith, 155 F.3d 1051 (9th Cir. 1998) Facts: Smith was the VP of North American Sales for PDA Engineering. He was charged with insider trading after a co-worker listened to a voicemail message he left on a company phone. The voicemail was turned over to authorities and an extensive investigation ensued. The district court suppressed the voicemail message but not the remainder of the government’s evidence. Smith was convicted of 11 counts of insider trading. Issue(s): Was the voicemail message “intercepted” under the Wiretap Act or was it retrieved from storage under the Stored Communications Act?

9. United States v. Smith, 155 F.3d 1051 (9th Cir. 1998) Holding:Judge O’Scannlain (pictured), writing for the Ninth Circuit, undertook an analysis of the statutory language in both the Wiretap Act and Stored Communications Act. At issue was the definition of the word “intercept.” After rejecting the government’s attempts to distinguish wire communications from electronic communications, the court held that the Wiretap Act governed and that the “retrieved” voicemail was “intercepted.” However, it held that because there was a “sufficiently attenuated” nexus between the “intercepted” voicemail and the government’s evidence, the district court was correct to allow it. After discussing (and rejecting) Smith’s materiality and intent arguments, the Ninth Circuit affirmed Smith’s convictions. Discussion Questions: Can there be an “interception” when access to communication content is not contemporaneous to its transmission, but when the “communication” is stored? Do you agree that the use of legislative history is the equivalent of “looking over the heads of guests for one’s friends”?

10. Fraser v. Nationwide Mut. Ins. Co.,135 F.Supp.2d 623 (E.D. Penn. 2001) Facts:Richard Fraser was employed by Nationwide Mutual Insurance as an at-will, independent salesman. Under this employment arrangement, Fraser leased computer equipment and software from Nationwide. Fraser became involved in the Nationwide Insurance Independent Contractors Association (NIICA). He drafted a letter critical of Nationwide that was directed to the company’s competitors. Company officials accessed Fraser’s email on the server and discovered he had sent it to at least one competitor. Shortly thereafter his Agent’s Agreement was cancelled. Fraser ultimately sued Nationwide on several grounds. Nationwide moved for summary judgment. Issue(s): Was Nationwide’s conduct an “interception” of an electronic communication under the Wiretap Act, unlawful “access” under the Stored Communications Act, or both, or a violation of neither Act?

11. Fraser v. Nationwide Mut. Ins. Co.,135 F.Supp.2d 623 (E.D. Penn. 2001) Holding:The court drew a distinction between in-transit communications and emails that had already been received. Because Fraser’s email had already been received by the recipient, there was no interception under the Wiretap Act. The court further held that the retrieval of a message was not covered by the Stored Communications Act and therefore Nationwide’s conduct was not prohibited. Summary judgment was granted for Nationwide on all counts. Rich Fraser has since opened the R.A. Fraser Agency in Doylestown, PA. See www.rafraser.com

12. Konop v. Hawaiian Airlines Facts:Robert Konop was a pilot for Hawaiian Airlines when he created a website to post material critical of the airline and his union, the Air Line Pilots Association (ALPA). Although access to the website was restricted to those who Konop “invited,” executives from the airline used the log-in information from several of Konop’s fellow pilots. Konop sued Hawaiian Airlines on several grounds including violation of the Wiretap Act and the Stored Communications Act. Issue(s): Did Hawaiian Airlines violate the Wiretap Act or the Stored Communications Act when it surreptitiously accessed Konop’s website?

13. Konop v. Hawaiian Airlines Holding:The Ninth Circuit held that for a website such as Konop’s to be “intercepted” in violation of the Wiretap Act, it must be acquired during transmission, not while it is in electronic storage. The court affirmed the airline’s summary judgment on this issue. However, after analyzing the meaning of the term “user,” the court reversed the district court’s grant of summary judgment for the airline on the Stored Communications Act claim.

14. United States v. Councilman Facts:Bradford Councilman was the Vice President of Interloc, Inc., and online seller of rare and out-of-print books. As a convenience to the book dealers who used Interloc, the company offered to host their email accounts with the domain suffix “@interloc.com” Councilman directed Interloc employees to send him a copy of all incoming email messages from amazon.com, ostensibly to gain a commercial advantage. Councilman was charged with conspiracy (18 U.S.C. § 371) for conspiring to violate the Wiretap Act. Following the Konop decision, the case was dismissed and a divided panel of the 1st Circuit affirmed. The First Circuit then granted a rehearing en banc. Issue(s): Were the copied emails “electronic communications” and did Councilman’s actions constitute an “interception,” as those terms are used in the statute?

15. United States v. Councilman Holding:Judge Lipez (pictured) writing for the First Circuit, held that emails obtained by Councilman constituted an “electronic communication” and that his actions also were an “interception.” The court found that there was not a meaningful distinction between “in transit” and “in storage.” The court also rejected Councilman’s arguments on fair warning, lenity, vagueness, and unforeseeably expansive interpretation. Judge Kermit Lipez Interloc has since become Alibris. See www.alibris.com

16. Electronic Surveillance in Communications Networks • Two federal statutes govern real-time electronic surveillance in federal criminal investigations • Wiretap statute – 18 U.S.C. 2510-2522, first passed as the Omnibus Crime Control and Safe Streets Act of 1968 (generally known as Title III); • Pen register & trap and trace statute – 18 U.S.C. 3121-3127

17. Electronic Surveillance in Communications Networks • Title III and the Pen/trap statute coexist because they regulate access to different types of information • Title III – content • Pen/trap statute – addressing and other non-content information

18. Pen Registers & Trap & Trace Devices • What is a “pen register”? • It is an instrument that records outgoing addressing information, such as the number dialed from a telephone • It is defined as “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication”. 18 U.S.C. 3127(3).

19. Pen Registers & Trap & Trace Devices • What is a trap and trace device? • It is an instrument that records incoming addressing information, such as the telephone number associated with an incoming call • It is defined as “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication”. 18 U.S.C. 3127(4).

20. Pen Registers & Trap & Trace Devices • When can a pen/trap order be obtained? • when “the information likely to be obtained is relevant to an ongoing criminal investigation.” 18 U.S.C. 3122(b)(2).

21. Pen Registers & Trap & Trace Devices • Limitation on use of pen/trap order • A government agency authorized to install and use a pen register or trap and trace device must use technology reasonably available to it that restricts the recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling information utilized in the processing and transmitting of wire or electronic communications so as not to include the contents of any wire or electronic communications. 18 U.S.C. 3121(c).

22. Pen Registers & Trap & Trace Devices • What must an application for a pen/trap order contain? • The identity of the applicant • The law enforcement agency conducting the investigation • A certification that the information likely to be obtained is relevant to an ongoing criminal investigation. 18 U.S.C. 3122(b)(1)-(2).

23. Pen Registers & Trap & Trace Devices • How long can a pen/trap order authorize a pen/trap to be used? • For a period not to exceed 60 days. 18 U.S.C. 3123(c)(1). • Extensions can be granted, through the same process as an original order, for a period not to exceed 60 days. 18 U.S.C. 3123(c)(2).

24. Pen Registers & Trap & Trace Devices • Can pen registers or trap and trace devices be installed without an order? • Yes – but • only when an emergency situation exists, and • when four conditions are fulfilled (18 U.S.C. 3125): • The first condition: the AG, DAG, Assoc. AG, an Asst. AG, or a State AG or County DA (pursuant to a State statute), must “reasonably determine” that an emergency situation exists that involves • Immediate danger of death or serious bodily injury to any person; • Conspiratorial activities characteristic of organized crime; • An immediate threat to a national security interest; or • An ongoing attack on a protected computer that constitutes a felony crime. • The second condition: The emergency situation requires the installation and use of a pen register and trap and trace device before an order authorizing their use can, with due diligence, be obtained

25. Pen Registers & Trap & Trace Devices • Can pen registers or trap and trace devices be installed without an order? • Yes – but • only when an emergency situation exists, and • when four conditions are fulfilled (18 U.S.C. 3125): • The third condition: there are grounds for which an order could be obtained • The fourth condition: within 48 hours after the installation has occurred, an order approving the installation and use is issued in accordance with 18 U.S.C. 3123.

26. Title III – The Wiretap Act • What is prohibited under Title III? • Title III broadly prohibits the “interception” of “oral communications,” “wire communications,” and “electronic communications.”

27. Title III – The Wiretap Act • What must a Title III order obtain • Applicant’s authority to apply; • Identity of person making application; • Identity of officer authorizing application; • Facts justifying the request (“probable cause for belief”); • Details of the offense being investigated; • Nature and location of the facilities or place from where surveillance will be conducted; • Type of communication to be intercepted; • Identity of person to be overheard; • Inadequacy of alternative investigative procedures (necessity for interception); • Period for which authorization is sought (max 30 days); • Details concerning results of prior orders, if any.

28. Title III – The Wiretap Act • What process must be followed to obtain and implement a Title III order? • Affidavit showing probable cause and necessity • Prior approval • Judicial authorization • Minimization • Sealing

29. Title III – The Wiretap Act • What must the affidavit show? • must show probable cause to believe that the interception will reveal evidence of a predicate felony offense listed in 18 U.S.C. 2516; • must show that normal investigative procedures have been tried and failed, or that they reasonably appear to be unlikely to succeed or to be too dangerous to employ; • must show probable cause that communication facility is being used in a predicate crime; • must show that surveillance will be conducted in manner that minimizes interception of communications that do not relate to predicate crime;

30. Title III – The Wiretap Act • Case examples • United States v. Thanad Paktipatt (Thai General) • Affidavit – 24 pages • Application • Order • Minimization guidelines • United States v. Piedad Sanchez (19 defendant case) • Affidavit – 56 pages • Application • Order • Minimization guidelines

31. Title III – The Wiretap ActDefinitions • Wire communication • "wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce. 18 U.S.C. 2510(1).

32. Title III – The Wiretap Act\Definitions • Oral communication • "oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication. 18 U.S.C. 2510(2).

33. Title III – The Wiretap ActDefinitions • Electronic communication • "electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include-- • (A) any wire or oral communication; • (B) any communication made through a tone-only paging device; • (C) any communication from a tracking device (as defined in section 3117 of this title); or • (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;

34. Title III – The Wiretap ActDefinitions • Intercept • "intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. 18 U.S.C. 2510(4). • Generally understood to mean that the acquisition must be contemporaneous with the transmission.

35. Title III – The Wiretap ActExceptions • Exceptions to Title III • Interception pursuant to a 18 U.S.C. 2518 court order. • The “consent” exception. 18 U.S.C. 2511(2)(c)-(d). • The “provider” exception. 18 U.S.C. 2511(2)(a)(i). • The ‘computer trespasser” exception. 18 U.S.C. 2511(2)(i). • The “extension telephone” exception. 18 U.S.C. 2510(5)(a). • The “inadvertently obtained criminal evidence” exception. 18 U.S.C. 2511(3)(b)(iv). and • The “accessible to the public” exception. 18 U.S.C. 2511(2)(g)(i).

36. Title III – The Wiretap ActExceptions – Court Order • Exceptions to Title III -- Interception pursuant to a 18 U.S.C. 2518 court order. • Several formidable requirements for application • must show probable cause to believe that the interception will reveal evidence of a predicate felony offense listed in section 2516; • must show that normal investigative procedures have been tried and failed, or that they reasonably appear to be unlikely to succeed or to be too dangerous to employ; • must show probable cause that communication facility is being used in a predicate crime; • must show that surveillance will be conducted in manner that minimizes interception of communications that do not relate to predicate crime;

37. Title III – The Wiretap ActExceptions -- Consent • Exceptions to Title III -- The “consent” exception. 18 U.S.C. 2511(2)(c)-(d). • where a law enforcement officer or someone acting on behalf of a law enforcement officer is a party to the communication or one of the parties to the communication has given prior consent; • where a private person is a party to the communication or one of the parties to the communication has given prior consent it is not unlawful to intercept the communication unless it is done for the purpose of committing any criminal or tortious act in violation of any federal or state law.

38. Title III – The Wiretap ActExceptions -- Provider • Exceptions to Title III -- The “provider” exception. 18 U.S.C. 2511(2)(a)(i). • Employees or agents of a provider of a communications service may intercept, disclose, or use communications in the normal course of their employment while engaged in any activity which is a necessary incident to the rendition of that service or to the protection of the rights or property of the provider of the service.

39. Title III – The Wiretap ActExceptions – Trespasser • Exceptions to Title III -- The ‘computer trespasser” exception. 18 U.S.C. 2511(2)(i). • Victims of computer attacks may allow law enforcement to intercept wire or electronic communications of a computer trespasser if four requirements are met: • The owner/operator of the protected computer must authorize the interception of the trespasser’s communications; • The person who intercepts the communications must be “lawfully engaged in an investigation”; • The person who intercepts the communications must have “reasonable grounds” to believe that the contents of the computer trespasser’s communications will be relevant to the investigation; • The interception should not acquire any communications other than those transmitted to or from the computer trespasser;

40. Title III – The Wiretap ActExceptions – extension telephone • Exceptions to Title III -- The “extension telephone” exception. 18 U.S.C. 2510(5)(a). • Intended to only allow an employer to monitor communications of an employee to ensure that the computer provided to the employee by the employer is used for work-related purposes;

41. Title III – The Wiretap ActExceptions – inadvertently obtained evidence • Exceptions to Title III -- The “inadvertently obtained criminal evidence” exception. 18 U.S.C. 2511(3)(b)(iv). • Contents of communications may be disclosed to law enforcement where they were inadvertently obtained by the service provider and they appear to pertain to the commission of a crime;

42. Title III – The Wiretap ActExceptions – public info • Exceptions to Title III -- The “accessible to the public” exception. 18 U.S.C. 2511(2)(g)(i). • This appears to permit the interception of an electronic communication in a public chat room, a Usenet newsgroup, etc.

43. Electronic Surveillance in Communications Networks-- Remedies for violations -- • Remedies for violations of Title III and Pen/Trap Statute • Criminal penalties for violation of Title III – maximum penalty of five years imprisonment and $250,000 fine. 18 U.S.C. 2511(4); • Civil damages for violation of Title III. 18 U.S.C. 2520; • Criminal penalties for pen/trap violations -- maximum penalty of one year imprisonment and $100,000 fine. 18 U.S.C. 3121(d); • Suppression for certain Title III violations. 18 U.S.C. 2518(10)(a).

44. Questions?

45. Intercepting Communications: Title III Applied to On-Line Conduct Sean B. Hoar 541-465-6792 (voice) sean.hoar@usdoj.gov