electronic surveillance & constitutional/legislative protections
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Electronic Surveillance & Constitutional/Legislative Protections. Eric Vos Federal Defender – District of Puerto Rico [email protected]. What is Electronic Surveillance? Not?. What We Will Cover Cell Phone Site Location (CSL) Wiretaps “Slap On” GPS Trackers - PowerPoint PPT PresentationTRANSCRIPT
Electronic Surveillance & Constitutional/Legislative
Protections
Eric VosFederal Defender – District of
Puerto Rico
What is Electronic Surveillance?
Not?
What We Will CoverCell Phone Site Location (CSL)Wiretaps“Slap On” GPS TrackersPen Registers/Trap and TracePole Cameras
Question #1Which of The Following Areas Enjoys Constitutional 4th Amendment Protections?
A. Cell Phone Site LocationB. WiretapsC. “Slap On” GPS TrackersD. Pen Registers/Trap and TraceE. Pole Cameras
AnswerWhich of The Following Areas Enjoys Constitutional 4th Amendment Protections?
A. Cell Phone Site LocationB. WiretapsC. “Slap On” GPS TrackersD. Pen Registers/Trap and TraceE. Pole Cameras
Where Do Our Protections Come
From?
Constitutional 4th Amendmentand/or
Statutory
4th Amendment Provides Us With Little Protection & Privacy
Comes from Statute.
Example of Statutory Protections Where no 4th Amendment Rights Exist
Pen/Trap (recorded out/in) Telephone Numbers
Smith v. Maryland, 442 US 735 (1979) No judicial review required to record
telephone #’s.
Congress came up with some minimal protections.
Filling The Constitutional Void with Statutory Protections
Pen/Trap Telephone Numbers
• legislation - no person may install or use a pen or trap without getting a court order.
• Court needs to find that “information likely to be obtained” will be relevant to an on-going criminal investigation.
if “information likely to be obtained” will be relevant to an on-going
criminal investigation.
≠ Probable Cause!!
Wiretaps Require Super-Warrant Not
Only Probable Cause
• Cell Phone Site Location (CSL)
• Wiretaps• “Slap On” GPS Trackers
• Pen Registers/Trap and Trace
• Pole Cameras
Cell Phone Site Location-CSLHow?:
Pings & GPS
1. when call in 2. call out & 3. when idle – every 2 seconds
Period Covered?:1. Real-Time2. Historic Records (limited to calls
made/received For Now!)
CSL For Who?: Individual # or Data Dump
Question #2What is a Data Dump?
A. When discovery includes more than a terabyte of digital data?
B. The cell phone data covers in excess on 6 months of phone activity?
C. Digital discovery is provided in a ad hoc & random basis?
D. Pen/Trap data includes multiple cell phones for each given tower/cell?
E. All of the above?
Tracking One Telephone Location Over TimeData Dump
1
23
Two Types of Data: 1. Real-Time & 2. Historical
1. Real-Time (live tracking)1. Phone Company Personnel2. Internet Portal3. Stingray
2. Historic Records1. Individual phone location when made
and received calls.2. All Phones who made and received
calls which were located in Vicinity of Tower (Data Dumps)
Tracking every two secondsTracking only when call made or received
How Does Law Enforcement LEGALLY Get Data?
1. They Simply Ask For ItCarrier Delivers or Gives Access W/O Warrant
or Order.
2. Ex Parte Request for Order – Based on? “specific and articulable facts” that the phone has/had a connection to the investigation.
3. Order Not a Warrant! Search Warrant is Based on PC. Lower Standard.
How Long Does The Data Remain?Call Records
Cell Towers Used
Text Message Details
Text Message Content
Internet Session Information
Web Sites Visited
Verizon At Least 1 Year
At Least 1 Year
At Least 1 Year
3-5 days Up to 1 Year Up to 90 Days
AT&T 5-7 Years Since July 2008
5-7 Years Not Retained
Up to 72 Hrs. Up to 72 Hrs.
Sprint 8-24 Months
8-24 Months
Up to 18 Months
Not Retained
Up to 60 Days
Up to 60 Days
T-Mobile 5 Years Officially, 4-6 Mos. Really > yr.
5 Years Not Retained
Not Retained Not Retained
Historical & Real Time CSL!
No 4th Amendment Rights
1. Business Record! No expectation of privacy because we know they are collecting it.
2. Done by Service Provider in Normal Course of Business.
3. Provider Not Required by Government to Keep These Records.
Other Ways Location of a particular phone obtained
when idle & real-time needing little to no scrutiny
1. Exigent Circumstances as in kidnapping
2. 911 Call Tracking3. Geo-Tags: Photos4. Location Services
Possible Attacks on CSL
Get copy of Order/Warrant and argue deficiencies.
Get copy of User Agreement between customer and carrier. Is there a promise of privacy?
Not a business record and thus, expectation of privacy is appropriate. Is there a conceivable business use?
Other/Future Possible Attacks on CSL
Quick Internet/Google Search
Easy Search = Privacy + Rights + (technology)
Example: privacy rights cell phone tracking sting ray or stingray
Getting the data for your client!
Immediately Try and Preserve!
How Long Does The Data Remain?Call Records
Cell Towers Used
Text Message Details
Text Message Content
Internet Session Information
Web Sites Visited
Verizon At Least 1 Year
At Least 1 Year
At Least 1 Year
3-5 days Up to 1 Year Up to 90 Days
AT&T 5-7 Years Since July 2008
5-7 Years Not Retained
Up to 72 Hrs. Up to 72 Hrs.
Sprint 8-24 Months
8-24 Months
Up to 18 Months
Not Retained
Up to 60 Days
Up to 60 Days
T-Mobile 5 Years Officially, 4-6 Mos. Really > yr.
5 Years Not Retained
Not Retained Not Retained
Getting the data for your client!Discovery Letter to Prosecutor?
DRAFT! USE IT! DON’T JUST
COPY!!
Getting the data for your client from CARRIERS!
Order per Rule 17c
Avoid Subpoena
Getting the data for your client concerning who?
1. Cooperators2. Co-Defendants3. Police4. Investigators5. Witnesses6. Client
Getting the data for your client!
17C Orders are Ex Parte
Learning Experience for JudgeGood chance to educate court
Be careful what you wish for…
Getting the data for your client!General or SpecificWhen Using 17C Order?
Dates?SMS Records?Location Records?Call Records?
Carriers Ignore General or Incorrect RequestsGet an EXPERT!!!
Disc. Ltr. To AUSA GENERAL!
NOT SPECIFIC!!!
Cell Phone Site LocationWiretaps“Slap On” GPS TrackersPen Registers/Trap and TracePole Cameras
Wire TappingThe federal wiretap statute 1968 or Title III or the
Wiretap Act4th Amendment on Steroids!
Requires government to get a wiretap order = super-warrant
Harder to get than a regular search warrant because violates target and people they speak to.
What is a Wire Tap?
1. Oral communication2. Wire Communication3. Electronic
Communication
What is a Wire Tap?Oral communication:
•face-to-face•in-person talking •uttered •reasonable expectation that your conversation won't be recorded•Even your own microphones
What is a Wire Tap?Wire Communication:
•Voice communication that is transmitted over the phone company's wires, a cellular network, or the Internet.
•You don't need to have a reasonable expectation of privacy for the statute to protect you.
•Wiretap order needed to tap any phone calls — landline, cellphone, or Internet-based..
What is a Wire Tap?Electronic Communication:
•Email• instant messaging•texting •Websurfing•faxes •messages sent with digital pagers•Like with wire communications, you don't need to have a reasonable expectation of privacy•If you broadcast, publicly, it isn’t a wiretap
Talking Content
What is a Wire Tap?1. Oral2. Wire3. Electronic
CommunicationTalking Content
Don’t Be a Wire-Tapper!
Don’t Tap into:
FaceBookMessagesEmailsInstant MessagesNOTHINGGet Court Approval
Cell Phone Site LocationWiretaps“Slap On” GPS TrackersPen Registers/Trap and TracePole Cameras
GPS Slap On!
Big Case?
In United States v. Jones (at times known as United States v. Maynard), FBI agents planted a GPS device on a car while it was on private property and then used it to track the position of the automobile every ten seconds for a full month, all without securing a search warrant.
GPS Slap On!
United States v. Jones
Device was not original to car!
No Solice!
Allstate has recorded over
a billon miles of driving
Cell Phone Site LocationWiretaps“Slap On” GPS TrackersPen Registers/Trap and TracePole Cameras
Pen/Trap (record out/in) Telephone Numbers
4th Amendment No Protection but Gained from Statutory
Smith v. Maryland, 442 US 735 (1979) – no expectation of privacy in called telephone or received telephone #’s. Law enforcement, with no judicial review, could record telephone #’s. As a result, Congress came up with some minimal protections.
Filling The Constitutional Void with Statutory Protections
Pen/Trap Telephone Numbers
• Pen/Trap Statute + Stored Communications = Electronic Communications Privacy Act of 1986 (ECPA) & complimented by Communications Assistance for Law Enforcement Act.
• legislation says that no person may install or use a pen or trap without getting a court order under 18 USC § 3121-3127 or FISA.
• ORDER to collect pen/trap data if “information likely to be obtained” will be relevant to an on-going criminal investigation.
if “information likely to be obtained” will be relevant to an on-going
criminal investigation.
≠ Probable Cause!!
You Can Get
Pen/Trap Telephone Numbers
Subpoena and/or Rule 17C Order
Cell Phone Site LocationWiretaps“Slap On” GPS TrackersPen Registers/Trap and TracePole Cameras
Pole CameraUS v. Anderson Bagshaw, 509
Fed. Appx, 396 (6th cir. 2012)•Pole Cameras Were Placed Just for this Def.•24 days/500 Hrs. of video•Could see husband naked in some shots•Zoom, pan, focus on Def’s Curtilage•Stream live video via Internet•Hence Unconstitutional•Yet, Harmless
Poll Question #3U.S. v. Anderson Bagshaw involved?
A. Kidnapping?B. Drug Distribution Point?C. Raising Alpacas?D. Political Corruption?E. All of the above?
Pole CameraQuestions To Ask
•Can People See This Area W/O Pole Camera?•Is the area private/public/backyard/hold?•Duration of video?•Who Put the Camera there and why?•Zoom, pan, focus on Def’s Curtlage?
Electronic SurveillanceIs Fluid & Not Static!!
•Immediately Do Internet Search•Think About Preservation!•WestLaw / Lexis Search•Contact EFF.org•FD.org•Experts!!!•Use Request for Investigation/Expert Funds To Educate Court
Question & Answer