The Bootlegger Olmstead v. United States (1928) Without any search warrants, federal agents wiretapped the telephone lines in the downtown office of Seattle bootlegger Roy Olmstead, a former police lieutenant (Anderson, 2013). The U.S. Supreme Court upheld Olmstead’s conviction, stating: There was no searching. There was no seizure. There was no entry of the houses or offices of the defendants (Anderson, 2013).
The Gambler Katz v. United States (1967) Without any search warrants, federal agents put microphones on two public telephones in Los Angeles that gambler Charles Katz used every day at the same time to place illegal interstate bets (Anderson, 2013). The U.S. Supreme Court ruled that Katz had a “reasonable expectation of privacy” on public telephones and “the Fourth Amendment protects people, not places” (Villasenor, 2013, para 16).
The Robber Smith v. Maryland (1979) Without search warrants, Baltimore police detective asked the phone company to place “a pen register” on Michael Lee Smith’s phone to record the numbers dailed. Smith was suspected of calling and threatening a woman he robbed. The U.S. Supreme Court upheld Smith’s conviction: “A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” (Villasenor, 2013, para 3).
The Third-Party Doctrine If you provide information to a third party, the Fourth Amendment does not prevent government agencies from obtaining it without a search warrant, since you voluntarily revealed the information thus relinquished any legitimate expectation of privacy. Source: Villasenor, 2013
Electronic Communications Privacy The Highlights Title 1: Protects wire, oral and electronic communications while in transit. Establishes requirements for search warrants. Title 2 (Stored Communications Act): Protects communications held in electronic storage, mainly computers. Title 3: Prohibits the use of pen registers and/or wiretapping and trace devices to record dialing, routing, addressing and signaling in the process of transmitting wire or electronic communication without a court order. Source: U.S. Department of Justice
The Third-Party Doctrine The Challenge of Smilin Bob Marketing character, Smilin Bob, helped Cincinnati businessman Steven Warshak built an empire selling Enzyte, a male sexual enhancement product via late-night TV commercials. Federal agents, with a subpoena, obtained Warshak’s extensive email exchanges and eventually charged him, and his mother, with wire fraud.
The Wire Fraudster United States v. Warshak et al. (2010) NuVox, an email provider, deleted Warshak's (in photo) message from its servers after his computer made a copy, thus no storage (Anderson, 2013). In the subpoena, the government asked NuVox to save copies of Warshak’s emails (Anderson, 2013). The U.S. Court of Appeals for the Sixth Circuit in Ohio ruled that the government needed a search warrant to obtain Warshak’s emails from NuVox, not just a subponena.
The Third-Party Doctrine Subpoena v. Warrant Subpoena Duces Tecum: A writ to compel production of evidence. Search Warrant: A court order based on probable cause. It authorizes the search for evidence in a criminal investigation.
Sovereigns of Cyberspace Facebook, Twitter, Google, et al Subpoenas: Basic subscriber information, such as user’s name and e-mail address Search Warrants: A subscriber’s user- created content, such as photos, photos, messages
The Leahy-Lee Amendment The Highlights Amendment 1: Require the government to obtain a search warrant before obtaining any emails or other electronic communications from Internet service providers, including those who provide “cloud” services to store documents. Amendment 2: Require notifications to people when the government obtains electronic communication information about them. Source: Senate Bill 607
The Leahy-Lee Amendment (GovTrack.us Prognosis)
The Panoptic Effect (1785) “If (prisoners) have no way of knowing exactly when they are being watched, they end up having to assume they are under surveillance all the time.” Source: MacKinnon, 2012, p. 80
Rebecca MacKinnon Rebecca MacKinnon Lack of sufficient public oversight and transparency about government surveillance through private networks can dampen dissent and activism over time through the “Panopticon effect.”
References | Sources Anderson, N. (2013), Slate: Thanks, Smilin Bob Thanks, Smilin BobThanks, Smilin Bob Auerbach, D (2013), Slate: How Microsoft Lost Its Way, as Understood Through The Wire How Microsoft Lost Its Way, as Understood Through The WireHow Microsoft Lost Its Way, as Understood Through The Wire Cohen, N. (2011), The New York Times: Twitter Shines a Spotlight on Secret FBI Subpoenas Twitter Shines a Spotlight on Secret FBI SubpoenasTwitter Shines a Spotlight on Secret FBI Subpoenas Coleman, (2013): Coding Freedom: The Ethics and Aesthetics of Hacking Gibney, A. (2013): We Steal Secrets: The Story of WikiLeaks (Documentary) We Steal Secrets: The Story of WikiLeaks (Documentary)We Steal Secrets: The Story of WikiLeaks (Documentary) Helft, M. & Milller. C.C. (2011), The New York Times: 1986 Privacy Law is Outrun by the Web 1986 Privacy Law is Outrun by the Web1986 Privacy Law is Outrun by the Web Leahy-Lee Electronic Communications Privacy Act Amendments (2013): Senate Bill 607 Senate Bill 607 Senate Bill 607
References | Sources Kerr, O. S. (2009): The Case for the Third-Party Doctrine The Case for the Third-Party DoctrineThe Case for the Third-Party Doctrine MacKinnon, R. (2012), Consent of the Networked: The Worldwide Struggle for Internet Freedom, pp. 76-82. Sengupta, S. (2013), The New York Times: Updating an E-Mail Law From the Last Century Updating an E-Mail Law From the Last CenturyUpdating an E-Mail Law From the Last Century Warshak Decision: http://www.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdf http://www.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdf Villasenor, J. (2013), The Atlantic: What You Need to Know about the Third-Party Doctrine What You Need to Know about the Third-Party DoctrineWhat You Need to Know about the Third-Party Doctrine U.S. Justice Department: Electronic Communications Privacy Act Electronic Communications Privacy ActElectronic Communications Privacy Act
Image Credits | Two Come Back with a Warrant (photo): www.flexyourrights.org The Wire, Burner: whoiskamryn.com whoiskamryn.com The Wire, Police: seattleweekly.com seattleweekly.com The Wire, Blue Lines: en.wikipedia.org en.wikipedia.org The Wire, Wordmark: sleepingatlast.com sleepingatlast.com Statesville Prison, Panoptic Effect: heterotopiastudies.com heterotopiastudies.com Net Art Theory, Prisoner and Computer User: kareneliot.de kareneliot.de