Electronic surveillance - sustany/dvg GitHub Wiki

Overview

Electronic�surveillance�is the�acquisition of information by an electronic, mechanical, or other�surveillance�device of the contents of any wire or electronic communication, under circumstances in which a party to the communication has a�reasonable�expectation of�privacy. The "contents" of a communication consists of any information concerning the identity of the parties, or the existence, substance, purport, or meaning of the communication.1

Examples of electronic�surveillance�include:�wiretapping, bugging, videotaping; geolocation tracking such as via RFID, GPS, or cell-site data; data mining, social media mapping, and the monitoring of data and traffic on the Internet. Such�surveillance�tracks communications that falls into two general categories: wire and electronic communications. "Wire" communications involve the transfer of the contents from one point to another via a wire, cable, or similar device. Electronic communications refer to the transfer of information, data, sounds, or other contents via electronic means, such as email, VoIP, or uploading to the cloud.

The Fourth Amendment and Landmark Cases

Electronic�surveillance�can implicate the�Fourth Amendment�right of the people to be secure against unreasonable�searches and seizures. The U.S.�Supreme Court�initially ruled in�Olmstead v. U.S (1928)�that electronic eavesdropping is not a�search or seizure�since the government intercepted conversations without entering the defendant's home and conversations aren't tangible things to be seized. However, the�Court�later�overruled�Olmstead�in�Katz v. U.S. (1967)�and held that the�Fourth Amendment�protects any place where an individual maintains a�reasonable�expectation of�privacy. Both cases involved�wiretapping�or bugging.

In�Kyllo v. U.S.(2001), the�Court�addressed the constitutionality of using technology to survey the inside of a�defendant's home without actually entering the home. Here, the�Court�held that physical invasion was not required to constitute a�Fourth Amendment�search�if the�surveillance�reaped information that would not have been attainable without entering the home. 2

On June 5, 2017 the�Court�granted a�petition�for a�writ of certiorari�to review U.S.�Court of Appeals�for the�Sixth Circuit�case�Carpenter v. U.S.,�concerning the use of an individual's cell-site records to map his location over a lengthy historic period. See the�SCOTUSblog post on the case�for more information. See also Adam Liptak,�Supreme Court Agrees to Hear Cellphone Tracking Case, NY Times, June 4, 2017. 3

Reasonable Expectation of Privacy

Justice Harlan defines the�privacy�expectation in his concurrence in�Katz, which is referenced in�Kyllo, and states that a person must "have exhibited an actual (subjective) expectation of�privacy�and... that the expectation be one that society is prepared to recognize as 'reasonable.'" Thus, a person has a legitimate expectation of�privacy�if he honestly and genuinely believes the location under�surveillance�is private, and if a�reasonable person�in the same or similar circumstances would believe the location to be private as well. Therefore, the government has more latitude to legally survey communications in a public place than it does in a private place. Further, the courts have allowed the government to record conversations during jail visitations, provided that the�surveillance�reasonably relates to prison security.

Warrant Requirement

Because electronic�surveillance�is a�search�under the�Fourth Amendment, it is subject to the same�warrant�requirements as other�searches. To obtain a�warrant, the government must show�probable cause�to believe a�search�is justified, describe in particularity the conversation to be intercepted, and provide a specific time period for the�surveillance, among other requirements. See�search warrant�for more information.

As with other�searches and seizures,�exigent circumstances�may serve as grounds for the government to forgo obtaining a�warrant. If a situation threatens a person's life or the national security, or a�conspiracy�suggests the existence of organized crime, then the government may proceed without a�warrant.

Domestic Surveillance Legislation

In 1986,�Congress�enacted extensive provisions regarding electronic�surveillance�in the Electronic Communications Privacy Act (ECPA). Courts have interpreted the Act to allow�magistrates�and�federal�judges�to grant�warrants�to law enforcement officers to enter private homes in order to "bug" the home's means of electronic communication. Despite numerous constitutional challenges, the courts have repeatedly upheld these provisions.

The ECPA also provides a�remedy�for individuals victimized by unlawful electronic�surveillance. If someone performs electronic�surveillance�in violation of the ECPA requirements, the victim may sue for�compensatory damages,�punitive damages, and�equitable relief, if�equitable relief�can rectify the harm. However, the�plaintiff�may only sue the individual who performed the�surveillance, not any third-party who subsequently receives a copy of the collected data.

The Communications Assistance for Law Enforcement Act of 1994 (CALEA) and its Second Report and Order of 2006 requires that telecommunications companies cooperate with the government's targeted electronic�surveillance�efforts. Cooperation may include modifications to the design of equipment, facilities, and services.

Foreign Surveillance Legislation

Case law�is split on the constitutionality of�wiretapping�a�foreign national's devices to obtain foreign intelligence. However, courts agree that warrantless�wiretapping�for the purpose of domestic security is unconstitutional.

In 1978,�Congress�enacted the Foreign Intelligence Surveillance Act (FISA), which lowers the required�evidentiary�showing to obtain a�surveillance�warrant�with regard to foreign intelligence gathering and describes other procedures for physical and electronic�surveillance�relating to foreign intelligence. Its provisions also apply to American citizens suspected of�espionage.

FISA�permits electronic�surveillance�in two situations. First, it authorizes the President to use warrantless�wiretapping�if it relates to the protection of the United States against a potential grave attack, sabotage, or�espionage, on the condition that the government does not tap any U.S. citizen. Second,�federal�law enforcement officials may obtain a�warrant�for foreign intelligence taps that do not meet the criteria of the first situation. To obtain the�warrant, the�FISA�court�(also created by the Act) must find�probable cause�that the individual targeted is a foreign power or the agent of a foreign power and that a foreign power uses or will use the place to be tapped. The FISA Court system is housed within the�Department of Justice, and it deals exclusively with foreign intelligence�warrant�applications, orders directing compliance, and challenges to compliance orders.

Following the attacks on the World Trade Center in September of 2001, the Bush Administration ordered the�National Security Agency (NSA)�to implement the use of domestic warrantless�wiretapping�to prevent future terrorist attacks. Some politicians and media outlets have criticized these directives as violative of the�Fourth Amendment�and�FISA. See, however,�emergency powers.

In July of 2007, President Bush signed into law the�Protect America Act of 2007 (PAA), which amended�FISA�to loosen the�warrant�requirement by permitting�wiretapping�of any phone calls originating in or being received in a foreign country. The�PAA�expired after 180 days, at which time�Congress�declined to renew it. However, many provisions of the�PAA�were reauthorized in the�FISA Amendments Act of 2008, and have been used as the legal basis for mass�surveillance�programs disclosed by�Edward Snowden�in 2013. 4

The USA Patriot�and USA Freedom Acts

In 2001,�Congress�enacted the�Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act). The�Patriot Act�modified portions of numerous electronic communications laws, including the�ECPA�and�FISA, expanding the authority of�federal�law enforcement to combat terrorism through electronic�surveillance.

Among its�surveillance-related provisions, the�Patriot Act�discarded the�FISA�requirement that the President only conduct warrantless�wiretaps�against non-U.S. citizen, although it still protected U.S. citizens conducting�First Amendment-related activities. Additionally, the�Patriot Act�gave law enforcement that had obtained�FISA�warrants�more time to conduct�surveillance. Another provision directed that the acquisition of stored voicemails be governed by ordinary�search and seizure�law, not more-stringent�surveillance�law.

Controversially, the�Patriot Act�also authorized roving wiretaps, which occur when a court grants a surveillance warrant without naming the communications carrier and other third parties involved in the tap. The�FBI�and other intelligence-gathering organizations justify the use of roving wiretaps because terrorists can change computers, email accounts, or cellphones quickly upon learning that a device or account is tapped. Critics of the provision argue that it violates the Particularity Clause of the�Fourth Amendment.

The original�Patriot Act�included a sunset provision for the law to terminate on December 31, 2005. Because�federal�courts struck down provisions of the�Act�as unconstitutional in the interim,�Congress�made certain substantive changes to the act and renewed the amended�legislation�in March of 2006. In May of 2011, President Obama signed the�PATRIOT Sunsets Extension Act of 2011, which extended three provisions of the�Act�for another four years: roving wiretaps, searches of business records, and the�surveillance�of "lone wolves." When the extension expired in 2015,�Congress�enacted the�Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act (USA Freedom Act), which restored many�Patriot Act�provisions, albeit modified. It also limited the�surveillance�powers of the�FBI�and�NSA, though not as much as some�civil liberties�and�human rights�watchdogs would like. 5

See:�FISA�and "Electronic Surveillance" (justice.gov).

"We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical 'intrusion into a constitutionally protected area,' Silverman, 365 U.S., at 512, constitutes a search�at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the�Fourth Amendment�was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search."�Kyllo v. U.S.

  1. No. 16-402�in the U.S. Supreme Court Docket;�U.S. v. Carpenterin the Sixth Circuit, decided Apr. 13, 2016.
  2. Jennifer Granick,�The FISA Amendments Act Authorizes Warrantless Spying on Americans, The Stanford Law School Center for Internet and Society Blog, Nov. 5, 2012.
  3. One of the first articles written as a result of Snowden's disclosure: Glenn Greenwald,�NSA Collecting Phone Records of Millions of Verizon Customers Daily, The Guardian, June 6, 2013. See also: Mirren Gidda,�Edward Snowden and the NSA Files - Timeline, The Guardian, Aug. 21, 2013.
  4. US: Modest Step by Congress on NSA Reform, Human Rights Watch, May 8, 2014.
  5. Cindy Cohn & Rainey Reitman,�USA Freedom Act Passes: What We Celebrate, What We Mourn, and Where We Go From Here, Electronic Frontier Foundation, June 2, 2015; Neema Singh Guliani,�What's Next for Surveillance Reform After the USA Freedom Act, ACLU Blog, June 3, 2015.

See also: National Labor Relations Board, NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices, October 2022.�