1. Cyber security 

   QUESTION

   (a) The Wiretap Act. Can you explain the basic structure of the Wiretap Act? Do you believe the categories, in practice, and in technological terms, are reasonable and workable? Do you know (or can you guess) why the “wiretap” act refers to “wires” and to “tapping” a wire? Can you explain why someone who never “tapped” a “wire” can still violate the wiretap act? Is it “easy” to obtain a court order (a title III “super warrant”) to permit federal agents to intercept communications? Why is it easier to rely on one of the exceptions to the statutory warrant requirement? Can you describe the three exceptions?

   (b) The Wiretap Act. Briefly answer the questions posed in notes 3 and 4 at pp. 644-45 (the consent exception) or any two of the questions posed in notes 1-5 at pp. 652-55 (the provider exception).

   (c) The Pen Register. Consider (1) “Dialing, Routing, Addressing, or Signaling” (DRAS) data, (2) “post cut through dialed digits” (PCTDD) data, and (3) location information.

   Which of these are considered to include “content”, and which are considered to be “non-content” (and do you agree that these are rightly classified)?

   Why do you suppose that Congress chose to regulate non-content information under the Pen Register Statute (as amended by the Patriot Act) differently than content information under the wiretap act? Do you believe it is possible to distinguish content from non-content? Does it make good sense to do so? (compare the ease of getting permission to install a pen register compared to the requirements to install a wiretap). Do you appreciate that some persons speak about intercepting “metadata” and are almost certainly referring to non-content information?

   (d) The Stored Communications Act. Consider the summary/introduction and the chart. Do you agree that the SCA is significantly more complicated than the Wiretap Act and the Pen Register statute? (briefly defend your answer). Why is it “surprisingly difficult” for the government (or another person) permissibly to open “unopened” emails under the SCA? (see note 5 at p. 686)

   (recall that a provider of electronic communications services is an “ECS” and that a provider of remote computing services is an “RCS”).

   Can you explain “the tremendous practical importance” of the “technical” interpretations? Do you believe it is good policy to leave such important questions unresolved in the statute itself? (could you have improved upon the statute, or amended it in light of what is actually happening online after the statute was written?)

   (e) The Stored Communications Act. What is the “two-tiered” approach to compelling disclosure of stored non-content information under the SCA? (see note 1, and notes 2-3 at pp. 695-96) Do you believe it makes sense? Do you believe it is consistent with the Fourth Amendment? (briefly defend your answers).

   (f) The Stored Communications Act. What is the “two-tiered” approach to compelling disclosure of content information under the SCA: (see note 4 and notes 5-7 at p. 697). Consider the issues raised by notes 8-14 at pp. 698-703. Do you believe the current resolution of those issues is good policy (assuming they are constitutionally permissible)? Do you believe the Department of Justice should be more accountable to judicial oversight?

   (g) The Stored Communications Act. Consider next the ability of an ISP voluntarily to disclose (see note 8 at p. 712) and think about civil discovery (notes 8-10 at pp. 713-16). Does this surprise you (or shock you)?

   4. Thought Problems (no written response required,

   (a) Think about Problems 1, 2 and 3 at pp. 718-20.

   (b) Recall the opening hypothetical at pp. 3-4. Are you confident that you could answer questions 2 and 3 at pp 5-6 or could at least spot the issues if more facts were provided? (compare the answers that you can provide now with those that you provided during the first week of this class)

   Do you think it is easy to understand these procedural requirements imposed by the Fourth Amendment and statutory privacy protections in cyberspace? Do you believe you are now better able to understand them than most people?

   Are you happy to have had a chance to gain at least this general exposure to the sources of law so that if a client of yours is concerned about such things, you would have a fair chance of getting started in the right direction in spotting the issues and then researching a solution (or if, as an informed citizen, you were asked to offer an opinion on matters currently in the news)?

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