Title III Applied to OnLine Conduct

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Title III Applied to On-Line Conduct

• Sean B. Hoar
• 541-465-6792 (voice)
• 541-465-6840 (fax)
• sean.hoar_at_usdoj.gov

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Class Overview

• I. Intercepting communications - How does Title
  III apply 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 What major
political figure is currently under fire for
certain actions of his that were discovered
through a federal wiretap?
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Trivia Question Answer

• Eliot Spitzer, the governor of New York, is
  currently under fire for his alleged involvement
  in a high-end prostitution ring based in New York
  City. According to news reports, Spitzer
  arranged to send several thousand dollars cash to
  The Emperors Club for a tryst with a
  prostitute at a fancy Washington D.C. hotel (said
  to be the Mayflower Hotel). The Republican Party
  of New York is threatening to impeach Spitzer if
  he doesnt step down.

Read more about this case on www.thesmokinggun.co
m or read the full complaint and affidavit (55
pages) at http//online.wsj.com/public/resources/d
ocuments/spitzercomplaint.pdf. Note that the
federal agents were able to access both cell
phones and email accounts in connection with
their investigation.
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United States v. Seidlitz

• Facts Seidlitz was a former employee of Optimum
  Systems Inc. (OSI) before leaving that company to
  form his own computer firm. OSI operated a
  facility in Maryland for the Federal Energy
  Administration. OSI later suspected an intruder
  on their computer network and subsequent
  investigation (including the use of a pen
  register-type device) led authorities to
  Seidlitzs office and home, where they found 40
  rolls of computer paper containing OSIs valuable
  WYLBUR source code. Seidlitz was charged with
  transmitting phone calls in interstate commerce
  as part of a scheme to defraud OSI.

Issue Is the use of a pen register device
prohibited by Title III of the Omnibus Crime
Control and Safe Streets Act?
Cathode Ray Tube (CRT) computers such as these
were used at the facility in Rockville, MD where
Seidlitz was charged with electronically
intruding.
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United States v. Seidlitz

• Holding The Fourth Circuit analyzed the
  statutory language, the legislative history, and
  several cases before holding that the telephone
  traces in this case were not the sort of
  interceptions of communications proscribed by
  the statute. The court also noted that under
  these circumstances, having been caught with his
  hand in the cookie jar, we seriously doubt that
  Seidlitz is entitled to raise either statutory
  or constitutional objections to the evidence.
  Seidlitzs conviction was affirmed.

• Discussion Question
• Do you agree with the courts disposition of
  searches by private parties such as OSI and a
  telephone company (the constitutional
  prohibition against warrantless searches does not
  apply to such parties)? Is this similar to the
  computer trespasser exception?

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Smith v. Maryland

• 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). 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 Smiths home, they
  found a phone book with a page turned down to
  McDonoughs name and number. Smith was
  subsequently convicted of robbery, but he sought
  to suppress evidence obtained from the pen
  register.

Issue Does the installation and use of a pen
register constitute a search within the meaning
of the Fourth Amendment?
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Smith v. Maryland
Holding The court relied on the two-part Katz
test and 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 of the
pen register device was therefore not a search
within the meaning of the Fourth Amendment and no
warrant was required.
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.

• Discussion Questions
• Can the holding of Smith v. Maryland be applied
  to text messages?
• Regarding Justice Marshalls dissent, can third
  parties be distinguished from public for
  purposes of determining whether one has abandoned
  a reasonable expectation of privacy?

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United States v. Smith

• Facts The defendant, Richard Smith, was the VP
  of North American Sales for PDA Engineering.
  Smith was charged with insider trading after a
  co-worker listened to a voicemail message he left
  on a company phone. This voicemail was turned
  over to authorities and an extensive
  investigation ensued. The district court
  suppressed the voicemail message but not the
  remainder of the governments 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?

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United States v. Smith

• Holding Judge OScannlain (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 governments 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
  governments evidence, the district court was
  correct to allow it. After discussing (and
  rejecting) Smiths materiality and intent
  arguments, the Ninth Circuit affirmed Smiths
  convictions.

• Discussion Questions
• Can there be an interception when access to
  communication content is not contemporaneous to
  its transmission?
• Does Judge OScannlains apparent contempt of the
  legislative process affect his opinion? Do you
  agree that the use of legislative history is the
  equivalent of looking over the heads of guests
  for ones friends?
• Do you agree with the court that the nexus
  between the suppressed voicemail message and the
  governments evidence was sufficiently
  attenuated?

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Fraser v. Nationwide Mut. Ins. Co.

• 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 companys
  competitors. Company officials accessed Frasers
  email on the server and discovered he had sent it
  to at least one competitor. Shortly thereafter
  his Agents Agreement was cancelled. Fraser
  ultimately sued Nationwide on several grounds.
  Nationwide moved for summary judgment.

Issue(s) Was Nationwides 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?
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Fraser v. Nationwide Mut. Ins. Co.

• Holding The court drew a distinction between
  in-transit communications and emails that had
  already been received. Because Frasers 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 if not covered by the Stored
  Communications Act and therefore Nationwides
  conduct was not prohibited. Summary judgment was
  granted for Nationwide on all counts.
• Discussion Questions
• 1. What did you think of the courts lengthy
  description of the procedural posture of the case
  at the beginning of the opinion? Did this
  foreshadow the result?
• 2. Would this result have been any different if
  Fraser wasnt an at-will independent contractor
  or if the computer equipment would have been his
  own?

Rich Fraser has since opened the R.A. Fraser
Agency in Doylestown, PA. See www.rafraser.com
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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 other of
  Konops fellow pilots. Konop sued Hawaiian
  Airlines on several grounds including violation
  of the Wiretap Act, Stored Communications Act,
  retaliation, and violation of the Railway Labor
  Act (labor law issues not described on these
  slides).
• Issue(s) Did Hawaiian Airlines violate the
  Wiretap Act or the Stored Communications Act when
  it surreptitiously accessed Konops website?

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Konop v. Hawaiian Airlines

• Holding The Ninth Circuit held that for a
  website such as Konops 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
  airlines summary judgment on this issue.
  However, after analyzing the meaning of the term
  user, the court reversed the district courts
  grant of summary judgment for the airline on the
  Stored Communications Act claim.
• Discussion Questions
• 1. Do you agree with the courts finding that
  Wong and Gardner (Konops fellow pilots) were not
  users because they had not logged on to the
  website?
• 2. Assume that a government agent was
  investigating Konop and received the website
  log-in information from Wong or Gardner. Would
  the agent need a warrant to access Konops
  website?
• 3. Similar to a question posed on the Fraser
  case Is it possible to intercept a website?

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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
  _at_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.  871) 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 Councilmans actions
  constitute an interception, as those terms are
  used in the statute?

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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
  Councilmans arguments on fair warning, lenity,
  vagueness, and unforeseeably expansive
  interpretation.
• Discussion Questions
• 1. Does this case represent a departure from the
  other cases we have discussed today, or is it
  consistent with the challenges the judiciary has
  had interpreting the relevant statutes? See the
  dissents comment It is not by coincidence that
  every court that has passed upon the issue before
  us has reached a conclusion opposite to that of
  the en banc majority.
• 2. What phrase or word poses the most difficulty
  to the courts interception or electronic
  communication?

Judge Kermit Lipez
Interloc has since become Alibris. See
www.alibris.com
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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

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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

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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).

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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).

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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).

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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).

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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).

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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).

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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.

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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 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

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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

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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 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.

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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.

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Title III The Wiretap Act

• What must a Title III order obtain
• Applicants 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 (maximum
  30 days)
• Details concerning results of prior orders, if
  any.

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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

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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

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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

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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).

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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).

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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

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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.

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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).

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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

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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.

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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.

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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 trespassers
  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 trespassers
  communications will be relevant to the
  investigation
• The interception should not acquire any
  communications other than those transmitted to or
  from the computer trespasser

42
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

43
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

44
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.

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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).

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Questions?
47
Title III Applied to On-Line Conduct

• Sean B. Hoar
• 541-465-6792 (voice)
• 541-465-6840 (fax)
• sean.hoar_at_usdoj.gov