Sections 209, 212, and 220
James X. Dempsey believed that even minor titles such as section 209 — which deals with the seizure of voicemails through the use of a normal search warrant —, section 212, which allows for the emergency disclosure of electronic communications under certain circumstances — and section 220 — which allows for the nationwide service of search warrants for electronic evidence — were evidence of a steady " government power without corresponding improvements in the checks and balances applicable to those powers".
Dempsey disagreed with section 209, which made it no longer necessary for agencies to seize stored voicemail from a Title III wiretap order, because while he agree that it made the rules technology neutral (stored data does not require such an order) it unnecessarily overlooked the importance of notice under the Fourth Amendment and under Title III. He believes that there is no way to seek redress under the new provisions, as those who have an ordinary search warrant against them may never find out that their voicemail has been seized. He also argues that while Title III protections was to make up for the lack of notice, such notice need not be delayed when seizing voicemail as "the evidence is already created". Dempsey ultimately believes that "rather than allowing growing amounts of personal information to fall outside the traditional protections of the Fourth Amendment, it is time to revisit the rules for networked storage (whether of voice or data) and bring them more in line with traditional Fourth Amendment principles, by requiring contemporaneous notice as the norm and covering both newer records and older records (again, whether voice or data) under the same probable cause standard".
He arges that the now repealed section 212 and the similar current provision in the Homeland Security Act is not on the face of it unreasonable. However, he argues that while a service provider may deem that a particular communication is dangerous, they may deem this information to be dangerous when alerted to it by agencies. Thus, agencies could alert a service provider to a dangerous situation, and then the service provider would then invoke the provisions of the relevant act to provide the government agency about the communication. He believes this gives a means of agencies "cutting corners" and that "placing the reasonable belief on the part of the service provider diffuses responsibility: the stored records provisions to which this exception was added has no suppression rule for evidence improperly obtained, and it does not appear that the civil action and administrative discipline provisions of 18 U.S.C. § 2707 would apply to agents who even intentionally mislead a service provider about the existence of an emergency". Dempsey suggests several modifications to implement checks and balances into the section: make after-the-act judicial review mandatory, with the suppression of evidence which is not deemed to be properly justified; the mandatory disclosure to the person whose privacy has been invaded that their information has been provided to the government; and to "make it illegal for a government official to intentionally or recklessly mislead a service provider as to the existence of an emergency".
Dempsey agreed with EPIC's view of section 220, in that it would make it "more difficult for a distant service provider to appear before the issuing court and object to legal or procedural defects". He believes that one possible solution to this problem is to allow a warrant to be challenged in the district it was served as well as in the district it was issued. He also believes that judges should have a clear understanding of what is being sought and that "judges need to understand computer systems in order to fully enforce the specificity requirement of the Fourth Amendment in the digital context" and that "while notice under 18 U.S.C. § 2705(b) can be prohibited, judges should be hesitant to deny notice to the person to whom the records pertain, since the subscriber is really in the best position to raise legitimate concerns."
Orin S. Kerr also agreed with James Dempsey that the sections were uncontroversial, and he also argued they should be kept. He explains that Internet communications are not dealt with in the Fourth Amendment, which offers no protection to information disclosed to third parties "and gives those third parties unlimited power to search through documents in their possession and disclose the results to law enforcement." This gap, Kerr argues, triggered a need for Congressional regulation which was satisfied in 1986 by the passing of the Electronic Communications Privacy Act (ECPA) which placed limitations on information that may be voluntarily disclosed by ISPs, and on information that an ISP may be compelled to give to investigators. He says that "the basic goal of the statute is to create Fourth Amendment-like protections for Internet communications" and that sections 209, 212 and 220 are all amendments to the ECPA. However, Kerr argues that while the ECPA was a necessary piece of legislation, Congress overlooked three key things. One is exigent circumstances for the obtaining of records (he argues that the Fourth Amendment had such an exception for physical search and seizures). The second thing was that Title III provided a high level of protection for stored voicemail, but almost no privacy protection for opened voicemail; consequently "if the government knew that there was one copy of an unopened private message in a person's bedroom and another copy on their remotely stored voicemail, it was illegal for the FBI to simply obtain the voicemail; the law actually compelled the police to invade the home and rifle through peoples' bedrooms so as not to disturb the more private voicemail", and that the law made it extremely difficult for law enforcement agencies to gain access to such stored voicemail. Thirdly, Congress introduced "needless delay" when they disallowed federal investigators from obtaining orders to compel information in one district and have them served on third parties in other districts - before section 220 was introduced Kerr gives the example of a New York-based investigator having to travel to California to compel an ISP to disclose information about a New York-based defendant. Kerr argues that sections 209, 202 and 220 correct such defects in the ECPA and that "in all three cases, the Patriot Act attempts to bring the statutory surveillance law into alignment with the Fourth Amendment."
Kerr believes that "for the most part, Jim Dempsey's proposals for reform would impose greater privacy restrictions for online investigations than equivalent offline investigations". He believes that Dempsey's proposal to require after-the-act judicial review for exigent circumstances has no parallel in the Fourth Amendment; that allowing recipients of orders to challenge orders within the recipients own district would not follow "the traditional rule that any challenge (itself an extremely rare event) must be filed in the issuing district"; and that disclosure to the person whose electronic voicemail has been seized also has no such parallel in the Fourth Amendment, as while notice must be given to a home owner whose house is being searched this is not done to allow a challenge to the order but rather shows them that due legal process is being followed and that the search is not being conducted by a rogue agent — Kerr believes that "current law appears to satisfy this policy concern by providing notice to the ISP".
Kerr ends his response by writing:
- This does not mean I necessarily disagree with Dempsey's proposals. I am interested in hearing more about some of them, and less enthusiastic about others. But I see Dempsey's proposals as parallel to the debate over Sections 209, 212, and 220, rather than as a direct challenge to those sections. All three provisions are balanced and appropriate efforts to match statutory laws to the Fourth Amendment. Whatever other proposals Congress wishes to consider beyond them, it should begin by reaffirming these uncontroversial sections of the Patriot Act.
In response, Dempsey agreed that Congress needed to respond to the Supreme Court's finding, made over 30 years ago, that the Constitution affords no privacy protection to personal information disclosed to third parties, but that their "dispute is over what further changes are necessary to respond to the flow of information out of the home and onto the Internet." He held to his original arguments about the sections and further reiterated that the "traditional" (his quotes) Fourth Amendment protection is notice that the government is seeking information about a citizen, and that the amendments to the ECPA do not provide enough transparency that such information is being sought from third parties. Kerr agreed with much of what Dempsey's analysis of what the problem is, but that his "own view is that can be best addressed in two ways: first, by adding a statutory suppression remedy to the Internet surveillance laws; and second, by bolstering some of the privacy protections for accessed communications under the Stored Communications Act" Kerr believes that the right of government to access information about a person without notifying that person has not been a requirement for criminal investigations, and that "under current law, Internet users also have a narrow right to notice when the government seeks to obtain content records from an ISP with less than probable cause". He ended the debate by saying
- Should this narrow right be expanded to include other kinds of government access to information stored by Internet service providers? Perhaps, perhaps not. The traditional rule against notice reflects a legitimate government interest: notice tips off the suspect as to the details of the investigation, and that notice can thwart the investigation. Notice can also add a paperwork requirement that ranges from minimal to substantial. At the same time, notice can provide a target with the information needed to challenge the government's procedure. My instinct is that the interest served by the notice requirement is best met instead by a statutory suppression remedy: a suppression remedy would require notice after criminal charges are brought, and permit defendants to challenge the government's procedure at that point. But if Congress does not wish to add a suppression remedy, greater notice requirements at the time of government access to information should be considered.
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