Computer Law Observer

["E. ALLEN SMITH" <EALLENSMITH@ocelot.Rutgers.EDU>]

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Date: 29 Jan 1996 18:01:16 -0500
From: Galkin@aol.com
Subject: The Computer Law Observer #16

=====================================
GENERAL INFO: The Computer Law Observer is distributed (usually) weekly
for free and is prepared by William S. Galkin, Esq. The Observer is
designed specifically for the non-lawyer. To subscribe, send e-mail to
wgalkin@earthlink.com. All information contained in The Computer Law
Observer is for the benefit of the recipients, and should not be relied
on or considered as legal advice. Copyright 1996 by William S. Galkin.
=====================================

ABOUT THE AUTHOR: Mr. Galkin is an attorney in private practice in
Owings Mills, Maryland (which is a suburb of Baltimore). He is an
adjunct professor of Computer Law at the University of Maryland School
of Law and has concentrated his private practice in the Computer Law
area since 1986. He represents small startup, midsized and large
companies, across the U.S. and internationally, dealing with a wide
range of legal issues associated with computers and technology, such as
developing, marketing and protecting software, purchasing and selling
complex computer systems, and launching and operating a variety of
online business ventures. He also enjoys writing about computer law
issues!

===> Mr. Galkin is available for consultation with individuals and
companies, wherever located, and can be reached as follows: E-MAIL:
wgalkin@earthlink.com/TELEPHONE: 410-356-8853/FAX: 410-356-8804/MAIL:
10451 Mill Run Circle, Suite 400, Owings Mills, Maryland 21117.
Articles in The Observer are available to be published as columns in
both print and electronic publications. Please contact Mr. Galkin for
the terms of such usage.

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ELECTRONIC PRIVACY RIGHTS AND POLICE POWER
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[This is the third of a series of articles discussing privacy rights in
the digital age.]

It's no secret. Law enforcement agents are closely monitoring traffic
on the Internet. It is also no secret that crime is proliferating on
the Internet at a frightening pace. Law enforcement agents are a bit
unnerved as they watch their tried and true methods of law enforcement
become antiquated. However, law enforcement on the Internet is starting
to come of age.

Here are some recent examples:

(1) The Secret Service set up a bogus bulletin board system for the
purpose of attracting people who want to sell stolen cellular phone
codes. Thieves often get these codes by using scanners which pick up
the code-embedded signals emitted from moving cars. The result: six
arrests and seizure of 20 computer systems.

(2) The Justice Department ended a two-year investigation into use of
America Online (AOL) for the distribution of child pornography and
perpetration of other sex-crimes. The result: 125 homes were searched,
computer systems seized and numerous arrests made across the country.

(3) Just this month, the Secret Service noticed that Virtual Visions
(http://www.vv.com/~gilmore/head/heads.html) put up a new web page
which shows the heads of public figures such as Bob Dole, Boris Yeltsin
and Bill Gates, slowly exploding. Virtual Visions intended this to be
political satire. The result: the developer of the web page received a
visit from the Secret Service.

The Fourth Amendment -

The objectives of law enforcement and of personal privacy are on a
collision course on the Information Highway. Law enforcement personnel
desire access to as much information as possible to conduct their
investigations. Individuals want to restrict access to personal
information.  It is necessary to achieve a balance between effective
law enforcement and personal privacy. How the Fourth Amendment to the
U.S. Constitution is interpreted will play a crucial role in
determining where this balance is reached.

The 4th Amendment prohibits government agents from conducting
unreasonable searches and seizures. The Supreme Court has defined a
seizure of property as a "meaningful interference with an individual's
possessory interest in that property." The concept of seizure of
information differs dramatically from seizure of tangible property.
Seizure of tangible property means that the owner has been deprived of
the use and possession of the property. Whereas, when information is
"seized" the owner may still have possession of the information.  It is
just that the information has been copied and is now also in the hands
of someone else.

It could be argued that under the Fourth Amendment no seizure occurs
when digital information is merely copied. However, applying the
analysis used to prohibit wiretapping (which has been defined as a
seizure), seizure of information would also fall within the
constitutional definition of seizure.  In the information context,
"seizure" should be interpreted as meaning being deprived of the
ability to control the disclosure and dissemination of the information.
This ability to control is the value of the possessory interest of
information.

The application of the term "search" in the digital environment is more
complicated. An unlawful search requires as a prerequisite that (1)
subjectively, the person in possession of the item searched had an
actual expectation of privacy and (2) objectively, the person had an
expectation of privacy. The subjective expectation of privacy element
has been criticized, because in theory, it would be very easy for the
government to eliminate any expectation of privacy by announcing that
it will perform broad searches.  However, in practice, the Supreme
Court has focused on the objective requirement.

On one end of the spectrum is data resident in a stand-alone computer.
Here, there is certainly an objective expectation of privacy. On the
other end of the spectrum lie the vast open areas of the Internet, such
as web pages and newsgroups to which there can be no objective
expectation of privacy.

Accordingly, law enforcement agents are free to roam through these open
areas, assemble records on who is participating in which groups, and
what they are saying. For example, if the Secret Service wanted to
assemble all the messages that you posted in newsgroups in the last
year (the technology to perform this search available) in order to
determine your political positions, this would not violate the Fourth
Amendment.

The middle ground is where the legal battles will be fought. This will
primarily involve information that is in the possession of a third
party, and is not readily accessible to the public.

Under traditional constitutional analysis, where information is
disclosed to a third party, the expectation of privacy is abandoned.
For example, most state laws, and the federal Constitution, permit
wiretapping if one party to the conversation consents. However, the
scope of the abandonment will usually only apply to the amount of
information needed by the recipient.

For example, the telephone numbers you dial are disclosed to the phone
company in order that the phone company can perform its service.
Thereby, a person abandons the expectation regarding the number
dialed.  However, even though the content of telephone conversations is
also given over to the phone company, this content is not needed for
the phone company to perform its service. Therefore, the content of
phone conversations retains the expectation of privacy.

By analogy, this would also apply to e-mail messages maintained on a
service provider's equipment. Information such as the senders' and
recipients' addresses, the file sizes and times of transmissions are
not private. But the content of the messages would be.

In the workplace, an employer is not permitted to consent to a search
of personal areas of an employee. For example, a desk draw that
contains personal correspondence. By accepted convention, this is a
private area.

Private network directories which require a password to enter would
probably also retain an expectation of privacy. However, in each case,
a court will look at specific corporate policies to determine whether
there is an objective expectation of privacy or whether the employee
was informed that the employer may at any time without notice enter
these pass-worded directories.

Along these lines, since a court wants to determine the objective
expectation of privacy, an agreement that an employer will not consent
to a search would have no effect. What would be needed is an agreement
that the employer will not access these private areas, which deprives
the employer of the right to consent.

When determining the objective expectation privacy, courts will have to
balance the value of the particular privacy interest claimed against
the level of the law enforcement interest.  Only this month, America
Online under subpoena turned over personal e-mail records relating to a
criminal investigation where the murderer allegedly met the victim in
an AOL chat room. AOL has been criticized for not challenging the
subpoena. AOL's position is that if it receives a search warrant, it
will comply. This case highlights the valid competing interests of both
law enforcement and personal privacy.