(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)?
The Wiretap Act
The basic structure of the Wiretap Act is quite simple. It envisions that two parties are engaging in communication using machines. Hence, it is a crime for someone who is not a party to this communication to use a device to intentionally access the communication in real time.
There are three most important categories including wire, oral, and electronic communication (Lucia & Youssef, 2020). Telephone calls are considered to be wire communications. While almost all computer information exchange is perceived as electronic communication. Oral is when the information is in person, where it can be intercepted through a recording device. These categories are reasonable and workable since they all feature a specific form of communication which can be intercepted by a third party in real time.
The wiretap act refers to “wire” and to “tapping” a wire since the term was coined based on the historical form of communication. The telephone was wired, and an electrical tap was attached to it to monitor communication. That is why the term is still used today to refer to various forms of communication. Even when an individual has not “tapped a wire” he or she can still be found guilty of violating the Wiretap Act if a spyware is used (Lucia & Youssef, 2020). If this spyware sends the message immediately to the individual’s computer, then it will easily be argued that the act was inception of communication.
Obtaining a court order to permit federal agents to intercept communication is not always an easy process. That is because there must exist sufficient proof that the information is pertinent to a current criminal case, or that it may feature content that places the general public or lives of others at risk (Rademaker, 2016). That is why many resort to the use of the exceptions which allow interception without a court order.
The three exceptions include the consent exception, the provider exception, and the computer trespasser exception. The consent except argues that it is not unlawful for any individual acting under the color of law to intercept communication where he or she is a party to, and has thus given consent (Sutherland, 2016). If the person is not acting under color of law, it will not be unlawful to intercept communication if the content is to be used for committing criminal acts. The provider exception allows the reasonable monitoring of computer misuse which goes against the rights of the provider of the service (Sutherland, 2016). Lastly, the computer trespasser exception provides that it is not unlawful for a person acting under color of law to intercept wire or electronic communication of the computer trespasser through the protected computer if the owner authorizes it, if the actor is lawfully involved in an investigation, if there is reasonable grounds to believe that the content will be relevant to the investigation, and when such interception will not acquire additional communications other than those of the computer trespasser (Sutherland, 2016).
In problem two, John Jefferson violated the statutory privacy laws when his investigation led to the collection of other client information, aside from the hacker’s information. In the Wiretap Act, the computer trespasser exception only allows interception if the information that will be collected will belong to no one else, other than the trespasser. Also, the system administer was unsure of which MindThink user was the intruder. Therefore, there was no reasonable doubt to warrant the interception.
Lucia, W., & Youssef, A. (2020). Wyner wiretap‐like encoding scheme for cyber‐physical systems. IET Cyber-Physical Systems: Theory & Applications, 5(4), 359-365. doi: 10.1049/iet-cps.2020.0012
Rademaker, M. (2016). Assessing Cyber Security 2015. Information & Security: An International Journal, 34, 93-104. doi: 10.11610/isij.3407
Sutherland, E. (2016). Wire-Tapping in the Regulatory State Changing Times, Changing Mores. SSRN Electronic Journal. doi: 10.2139/ssrn.2866117