Article 17 - Freedom from arbitrary interference with privacy, family, home
291. Right to privacy. As reported in paragraphs 515 – 544 of the Initial Report, freedom from arbitrary and unlawful interference with privacy is protected under the Fourth Amendment to the Constitution.
292. Technology: movements and conversations: electronic surveillance. The U.S. Congress has also recognized that there could be substantial privacy infringements through the use of electronic devices to track the movements of persons or things and to intercept private communications. Such devices include wiretaps, pen registers and trap and trace devices (which record, respectively, outgoing and incoming dialing, routing, addressing, or signaling information used by communication systems, such as telephones or computer network communications), digital "clone" pagers and surreptitiously installed microphones. Note that the there is a significant difference in constitutional and statutory protections afforded to "content" devices, such as wiretaps, as opposed to "non-content" devices, such as pen registers. (See below for a discussion of pen/trap provisions of Titles II and III of ECPA, Pub. L. No. 99-508, 100 Stat. 1848).
293. In 1968, Congress enacted what is generally referred to as Title III to regulate the use of electronic audio surveillance and interception. 18 U.S.C. • • 2510-21 (Title III of the Omnibus Crime Control and Safe Streets Act of 1968 - Wiretapping and Electronic Surveillance, Pub. L. No. 90-351, 82 Stat. 212). Title III essentially bans the use of certain electronic surveillance techniques by private citizens. It makes punishable as a felony any intentional interception of any wire, oral, or electronic communication that would not be otherwise readily accessible to the public; use of an interception device; or disclosure of the contents of any communication that has been unlawfully intercepted. 18 U.S.C. • 2511.
294. Title III, however, exempts law enforcement from the general prohibition if it meets certain explicit conditions. The primary condition is that the government must obtain an appropriate court order authorizing the interception.
295. Before applying for a court order authorizing the interception of wire or oral communications, law enforcement generally must obtain prior approval from specified senior officials in the Department of Justice, in the case of federal law enforcement, or from senior state or local prosecuting officials, in the case of state or local law enforcement. For the interception of electronic communications, which, generally, are non-voice-based communications, federal agents must get approval from a federal prosecutor to seek a court order; state and local law enforcement must get approval from senior state or local prosecuting officials to seek a court order.
296. Having obtained approval, the agent must then apply for an order from a court. The application must set forth sufficient facts to satisfy the court that probable cause exists to believe that (i) certain identified persons have committed, are committing, or will commit one of the felony offences specified by the statute, which include serious felony offenses in the case of federal interceptions of oral or wire communications or any interceptions by state law enforcement, and include any federal felony in the case of an electronic communications interception by federal agents; (ii) all or some of the persons have used, are using, or will use a targeted communication facility or premises in connection with the commission of the listed offence; and (iii) the targeted communication facility or premise has been used, is being used, or will be used in connection with the crime. The agent's application must also satisfy the judge that other less intrusive investigative procedures have been tried without success, would not be likely to succeed, or would be too dangerous to use. The application must also include a complete statement of all other applications that have been made for electronic surveillance involving the persons, facilities, or premises.
297. The court’s order may authorize the interception for no more than 30 days. The court, however, may grant extensions of the order if the government files an application justifying the extension. 18 U.S.C. •2518(5). In addition, the judge issuing the order and the Department of Justice are required to report to the Administrative Office of U.S. Courts on each court-ordered electronic surveillance and the number of arrests, suppression orders, and convictions that resulted from them. 18 U.S.C. • 2519.
298. There is an exception to the requirement of prior judicial approval where there is an emergency involving immediate danger of death or serious bodily injury or conspiratorial activities that threaten national security or are characteristic of organized crime, and there is insufficient time to obtain a prior court order. 18 U.S.C. • 2518(7). When electronic surveillance is utilized in these emergency instances, the government must obtain a court order within 48 hours.
299. During the period of surveillance the agents are under a continuing duty to minimize - that is, to not record or overhear conversations that are not related to the crimes or persons for which the surveillance order was obtained. The recordings must also be sealed in a manner that will protect them from tampering. The government is expressly limited in the purposes for which, and to whom, it may disclose those communications. Section 223 of the USA PATRIOT Act provided for civil liability for unauthorized disclosures and provided that a person aggrieved by certain willful violation may commence an action for money damages against the United States. It also provides for the initiation of administrative proceedings.
300. Title III predated the use of video surveillance and was passed in the wake of two Supreme Court decisions that addressed non-consensual interception of oral communications. Moreover, in 1968, when Title III was enacted, video cameras were too bulky and too noisy to be effective as surreptitious recording devices, and thus were not considered when the electronic surveillance statute was enacted. For both these reasons, the statute did not address the use of electronic video interception for gathering non-aural evidence, and Congress has not passed subsequent legislation addressing the issue. However, the federal appellate courts that have considered the issue all agree that the government may conduct video surveillance. Because interception of visual, non-verbal conduct is not regulated by statute, the courts analyze it under the requirements of the Constitution. As long as the interception is conducted in a manner consistent with the protections provided by the Fourth Amendment, the courts will permit its use. See, e.g., United States v. Falls, 34 F.3d. 674 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d 536 (9th Cir. 1992) (en banc); United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987); United States v. Biasucci, 786 F.2d 504 (2d Cir. 1985), cert. denied, 479 U.S. 827 (1986); United States v. Torres, 751 F.2d 875 (7th Cir. 1984), cert. denied, 470 U.S. 1087 (1985).
301. Congress enacted the Electronic Communications Privacy Act ("ECPA") in 11986 to address, among other matters, (i) access to stored wire and electronic communications and transactional records and (ii) the use of pen registers and trap and trace devices. (See Titles II and III of ECPA, Pub. L. No. 99-508, 100 Stat. 1848.) Title II of ECPA generally prohibits unauthorized access to or disclosure of stored wire and electronic communications, absent certain statutory exceptions. Title II of ECPA also provides for legal process that law enforcement may use to obtain such stored communications and transactional records. The pen register and trap and trace provisions of ECPA prohibit the installation or use of a pen register or trap and trace device, except as may be provided for in the statue. Except in narrow, specified emergencies, law enforcement may not install a pen register or a trap and trace device without a prior court order.
302. Under the federal statutes, communications can be acquired if one of the parties to the communication has given prior consent to their acquisition. 18 U.S.C. • • 2511(2)(c), 2701(c)(2), 3123(b)(3) (2004). Similarly, the Fourth Amendment's protection of one's reasonable expectation of privacy does not require that the government obtain a warrant for a consensual interception, i.e. where one of the parties consents. In a case where an undercover agent wore a recording device concealed on his person, the Supreme Court explained:
[The] case involves no "eavesdropping" whatever in any proper sense of that term. The government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the government's own agent was a participant and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of [the suspect's] premises under circumstances which would violate the Fourth Amendment. It was carried in and out by an undercover agent who was there with [the suspect's] assent, and it neither saw nor heard more than the agent himself. See Lopez v. United States, 373 U.S. 427, 439 (1963).
303. Though federal judges need not authorize interception orders where one party to the conversation has consented to the electronic eavesdropping, the U.S. Department of Justice has adopted certain written guidelines for federal prosecutors. These guidelines are set forth in the Attorney General’s Memorandum of May 30, 2002, which states:
304. When a communicating party consents to the monitoring of his or her oral communications, the monitoring device may be concealed on his or her person, in personal effects, or in a fixed location. Each department and agency engaging in such consensual monitoring must ensure that the consenting party will be present at all times when the device is operating. In addition, each department and agency must ensure: (1) that no agent or person cooperating with the department or agency trespasses while installing a device in a fixed location, unless that agent or person is acting pursuant to a court order that authorizes the entry and/or trespass, and (2) that as long as the device is installed in the fixed location, the premises remain under the control of the government or of the consenting party. See United States v. Yonn, 702 F.2d 1341, 1347 (11th Cir.), cert. denied, 464 U.S. 917 (1983) (rejecting the First Circuit’s holding in United States v. Padilla, 520 F.2d 526 (1st Cir. 1975), and approving use of fixed monitoring devices that are activated only when the consenting party is present). See United States v. Shabazz, 883 F. Supp. 422 (D. Minn. 1995). The same rule applies to consensual videotaping.
305. Another area of note regarding technology and privacy is individuals' privacy with respect to information maintained on computer databases. In general, individuals are entitled to privacy by the Privacy Act, 5 U.S.C. § 552(a). The Privacy Act generally bars federal agencies from using or disclosing information collected for one purpose for a different purpose, unless the use or disclosure falls within one of the specifically enumerated exceptions in the Act. The Computer Matching and Privacy Protection Act of 1988 specifically addresses the use by federal agencies of computer data. The Act regulates the computer matching of federal data for federal benefits eligibility or recouping delinquent debts. The government may not take adverse action based on such computer checks without giving individuals an opportunity to respond. Three other federal laws that protect information commonly maintained on computer database are the Fair Credit Reporting Act (15 U.S.C. §§1681-81(v)), the Video Privacy Protection Act (18 U.S.C. § 2710), and the Right to Financial Privacy Act (12 U.S.C. §§ 3401-22). The first regulates the distribution and use of credit information by credit agencies. The second prevents the disclosure and sale of customers' video-rental records without the customers' consent. The last sets procedures regarding when federal agencies may review customers' bank records.
306. A number of federal statutes, in addition to those described above, protect information commonly maintained in computer databases. These include the Fair Credit Reporting Act (15 U.S.C. §§1681-1681(v)), which regulates the distribution and use of credit information by credit agencies; the Video Privacy Protection Act (18 U.S.C. § 2710), which addresses the disclosure and sale of customer records regarding video rentals; the Right to Financial Privacy Act (12 U.S.C. § 3401-3422), which sets procedures regarding access to customers’ bank records by the federal government; the Privacy Protection Act (42 U.S.C. §2000aa-2000aa-12), which provides special procedures for government searches or seizures of the press and other publishers; title V of the Gramm-Leach-Bliley Act (Pub. L. No. 106-102, 113 Stat. 1338), which addresses the protection and disclosure of nonpublic customer information by financial institutions; and provisions of the Health Insurance Portability and Accountability Act (42 U.S.C. §§ 1320d-1320d-8), which provides for the creation of protections regarding the privacy of individually identifiable health information.
307. With respect to aliens, a number of laws protect the confidentiality of certain information, with limited exceptions, including asylum applications (8 C.F.R. 208.6 and 1208.6), information relating to battered spouses and children seeking immigration relief (8 U.S.C. § 1186A(c)(4)), and alien registration and fingerprint records (8 U.S.C. § 1304(b)).
308. USA PATRIOT Act. In the wake of the tragedy of 11 September, 2001, Congress passed the USA PATRIOT Act primarily to provide federal prosecutors and investigators with the critical tools needed to fight and win the war against terrorism. The USA PATRIOT Act principally did four things. First, it removed the legal barriers that prevented the law enforcement and intelligence communities from sharing information. By bringing down "the wall" separating law enforcement and intelligence officials, the USA PATRIOT Act has yielded extraordinary dividends, such as by enabling the Department of Justice to dismantle terror cells in such places as Oregon, New York, and Virginia. Second, it updated federal anti-terrorism and criminal laws to bring them up to date with the modern technologies actually used by terrorists, so that the United States no longer had to fight a digital-age battle with legal authorities left over from the era of rotary telephones. Third, it provided terrorism investigators with important tools that were previously available in organized crime and drug trafficking investigations. For example, law enforcement had long used multi-point, or "roving," wiretaps to investigate non-terrorism crimes, such as drug offenses. Now, federal agents are allowed to use multi-point wiretaps, with court approval, to investigate sophisticated international terrorists who are trained to evade detection. Fourth, the USA PATRIOT Act increased the federal criminal penalties for those who commit terrorist crimes and made it easier to prosecute those responsible for funneling money and providing material support to terrorists.
309. The USA PATRIOT Act has been the subject of a vigorous public debate, which has focused on a handful of the Act's many provisions. As noted above, the Act authorizes multi-point wiretap surveillance in foreign intelligence investigations. This authority is directed to the problem of terrorists who seek to avoid surveillance by frequently changing telephones, and allows foreign intelligence investigators in certain specified circumstances to obtain from a federal court a wiretap order that permits surveillance of a specified person rather than a specific phone. This authority has been available in criminal investigations for years, but only became available in foreign intelligence investigations upon enactment of the USA PATRIOT Act. It allows surveillance to continue uninterrupted even though the terrorist changes phones. This authority has been an essential tool in conducting sensitive national security-related surveillance. There have been no verified abuses of this authority.
310. Another provision of the USA PATRIOT Act created a nationally uniform process and standard for obtaining delayed-notice search warrants, which have been available for decades and were common long before the USA PATRIOT Act was enacted. Like all criminal search warrants, a delayed-notice search warrant is issued by a federal judge only upon a showing that there is probable cause to believe that the property sought or seized constitutes evidence of a criminal offense. A delayed-notice warrant differs from an ordinary search warrant only in that the judge authorizes the officers executing the warrant to wait for a limited period of time before notifying the subject of the search because immediate notice would have an "adverse result." In passing the USA PATRIOT Act, Congress recognized that delayed-notice search warrants are a vital aspect of the Department of Justice's strategy of detecting and incapacitating terrorists, drug dealers, and other criminals before they can harm U.S. citizens. A delayed-notice search warrant is an invaluable though rarely used tool; delayed-notice has been used in less than 0.2 percent of all federal warrants authorized in the period of time between the enactment of the USA PATRIOT Act and 31 January, 2005. There have been no verified abuses of this authority.
311. A third provision of the USA PATRIOT Act authorizes federal prosecutors to issue subpoenas for records about an individual that are held by third parties. It is important to understand that federal prosecutors, by obtaining grand-jury subpoenas, have long been able to obtain business records, of exactly the sorts that are the subject of this provision, in ordinary criminal investigations without the involvement of a judge. The USA PATRIOT Act simply extended a similar authority to investigators in international terrorism and espionage investigations, and in addition imposed a requirement that those investigators obtain prior judicial approval. Moreover, because the provision at issue explicitly states that an investigation cannot be conducted of a United States person based solely upon activities protected by the First Amendment of the Constitution, investigators are expressly prohibited from investigating United States persons solely because of, for example, their library habits or the websites they visit. As the Attorney General testified before Congress, between the passage of the USA PATRIOT Act and 30 March, 2005, this business records provision was not used a single time to request library or bookstore records. However, we know from experience that terrorists and spies do use libraries to further their hostile intentions, and we cannot afford to make libraries safe havens. There have been no verified abuses of this authority.
312. The USA PATRIOT Act has helped to protect Americans from terrorist attacks while at the same time safeguarding their civil rights and civil liberties, such as by preserving the important role of judicial and congressional oversight. Many key provisions of the USA PATRIOT Act are scheduled to expire at the end of 2005, and Congress is considering reauthorization of those provisions. The House passed a reauthorization bill on 21 July, 2005, by a vote of 257-171, and the Senate passed a similar bill by unanimous consent on July 29, 2005. The next step in the process will be a conference between the two houses to resolve differences in the two bills. These bills have followed extensive debate and oversight by Congress as it considered whether to renew these critical intelligence and law enforcement tools. For example, the Attorney General has testified in front of the Senate and House Judiciary Committees and Senate Select Committee on Intelligence on the subject, and in total, the Department of Justice has provided 32 witnesses at 18 congressional hearings on the USA PATRIOT Act in 2005. In his congressional testimony, the Attorney General urged that all 16 sun-setting provisions should be reauthorized without any additional sunsets and opposed any weakening of the Act. As the extensive hearings and public debates have confirmed, there have been no verified abuses of the USA PATRIOT Act provisions.
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