Electronic Surveillance & Constitutional/Legislative

Protections

Eric VosFederal Defender – District of

Puerto Rico

Eric_Vos@ao.uscourts.gov

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