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Panoptic PowerPanoptic PowerThe Case of The Third-Party DoctrineThe Case of The Third-Party DoctrineBy Norma Martin | EMAC 6300 | Spring 2014 | University of Texas at By Norma Martin | EMAC 6300 | Spring 2014 | University of Texas at DallasDallas

The BootleggerThe BootleggerOlmstead v. United States (1928)Olmstead v. United States (1928)

Without any search warrants, Without any search warrants, federal agents wiretapped the federal agents wiretapped the telephone lines in the telephone lines in the downtown office of Seattle downtown office of Seattle bootlegger Roy Olmstead, a bootlegger Roy Olmstead, a former police lieutenant former police lieutenant (Anderson, 2013).(Anderson, 2013).

The U.S. Supreme Court upheld The U.S. Supreme Court upheld Olmstead’s conviction, stating: Olmstead’s conviction, stating: There was no searching. There There was no searching. There was no seizure. There was no was no seizure. There was no entry of the houses or offices entry of the houses or offices of the defendants (Anderson, of the defendants (Anderson, 2013).2013).

The Gambler The Gambler Katz v. United States (1967)Katz v. United States (1967)

Without any search warrants, Without any search warrants, federal agents put microphones federal agents put microphones on two public telephones in Los on two public telephones in Los Angeles that gambler Charles Angeles that gambler Charles Katz used every day at the Katz used every day at the same time to place illegal same time to place illegal interstate bets (Anderson, interstate bets (Anderson, 2013).2013).

The U.S. Supreme Court ruled The U.S. Supreme Court ruled that Katz had a “reasonable that Katz had a “reasonable expectation of privacy” on expectation of privacy” on public telephones and “the public telephones and “the Fourth Amendment protects Fourth Amendment protects people, not places” (Villasenor, people, not places” (Villasenor, 2013, para 16). 2013, para 16).

The Robber The Robber Smith v. Maryland (1979)Smith v. Maryland (1979)

Without search warrants, Without search warrants, Baltimore police detective asked Baltimore police detective asked the phone company to place “a the phone company to place “a pen register” on Michael Lee pen register” on Michael Lee Smith’s phone to record the Smith’s phone to record the numbers dailed. Smith was numbers dailed. Smith was suspected of calling and suspected of calling and threatening a woman he robbed. threatening a woman he robbed.

The U.S. Supreme Court upheld The U.S. Supreme Court upheld Smith’s conviction: “A person Smith’s conviction: “A person has no legitimate expectation of has no legitimate expectation of privacy in information he privacy in information he voluntarily turns over to third voluntarily turns over to third parties” (Villasenor, 2013, para parties” (Villasenor, 2013, para 3).3).

The Third-Party DoctrineThe Third-Party DoctrineIf you provide information If you provide information to a third party, the to a third party, the Fourth Amendment does Fourth Amendment does not prevent government not prevent government agencies from obtaining it agencies from obtaining it without a search warrant, without a search warrant, since you voluntarily since you voluntarily revealed the information revealed the information thus relinquished any thus relinquished any legitimate expectation of legitimate expectation of privacy.privacy.

Source: Villasenor, 2013Source: Villasenor, 2013

Electronic Electronic Communications Communications Privacy Act (1986)Privacy Act (1986)

Electronic Communications Electronic Communications PrivacyPrivacyThe HighlightsThe Highlights

Title 1: Protects wire, oral and electronic Title 1: Protects wire, oral and electronic communications while in transit. Establishes communications while in transit. Establishes requirements for search warrants.requirements for search warrants.

Title 2 (Stored Communications Act): Protects Title 2 (Stored Communications Act): Protects communications held in electronic storage, mainly communications held in electronic storage, mainly computers.computers.

Title 3: Prohibits the use of pen registers and/or Title 3: Prohibits the use of pen registers and/or wiretapping and trace devices to record dialing, routing, wiretapping and trace devices to record dialing, routing, addressing and signaling in the process of transmitting addressing and signaling in the process of transmitting wire or electronic communication without a court order.wire or electronic communication without a court order.

Source: U.S. Department of JusticeSource: U.S. Department of Justice

The Third-Party DoctrineThe Third-Party DoctrineThe Challenge of Smilin BobThe Challenge of Smilin Bob

Marketing character, Smilin Marketing character, Smilin Bob, helped Cincinnati Bob, helped Cincinnati businessman Steven businessman Steven Warshak built an empire Warshak built an empire selling Enzyte, a male selling Enzyte, a male sexual enhancement sexual enhancement product via late-night TV product via late-night TV commercials.commercials.

Federal agents, with a Federal agents, with a subpoena, obtained subpoena, obtained Warshak’s extensive email Warshak’s extensive email exchanges and eventually exchanges and eventually charged him, and his charged him, and his mother, with wire fraud.mother, with wire fraud.

The Wire FraudsterThe Wire FraudsterUnited States v. Warshak et al. (2010)United States v. Warshak et al. (2010)

NuVox, an email provider, deleted NuVox, an email provider, deleted Warshak's (in photo) message from Warshak's (in photo) message from its servers after his computer made its servers after his computer made a copy, thus no storage (Anderson, a copy, thus no storage (Anderson, 2013).2013).

In the subpoena, the government In the subpoena, the government asked NuVox to save copies of asked NuVox to save copies of Warshak’s emails (Anderson, 2013).Warshak’s emails (Anderson, 2013).

The U.S. Court of Appeals for the The U.S. Court of Appeals for the Sixth Circuit in Ohio ruled that the Sixth Circuit in Ohio ruled that the government needed a search government needed a search warrant to obtain Warshak’s emails warrant to obtain Warshak’s emails from NuVox, not just a subponena.from NuVox, not just a subponena.

The Third-Party DoctrineThe Third-Party DoctrineSubpoena v. WarrantSubpoena v. Warrant

Subpoena Duces Subpoena Duces Tecum:Tecum: A writ to A writ to compel production of compel production of evidence.evidence.

Search Warrant:Search Warrant: A A court order based on court order based on probable cause. It probable cause. It authorizes the search authorizes the search for evidence in a for evidence in a criminal investigation.criminal investigation.

Sovereigns of Sovereigns of CyberspaceCyberspaceFacebook, Twitter, Google, et alFacebook, Twitter, Google, et al

Subpoenas: Basic Subpoenas: Basic subscriber subscriber information, such as information, such as user’s name and e-user’s name and e-mail address mail address

Search Warrants: A Search Warrants: A subscriber’s user-subscriber’s user-created content, created content, such as photos, such as photos, photos, messagesphotos, messages

The Leahy-Lee The Leahy-Lee AmendmentAmendmentThe HighlightsThe Highlights

Amendment 1: Require the government to Amendment 1: Require the government to obtain a search warrant before obtaining any obtain a search warrant before obtaining any emails or other electronic communications from emails or other electronic communications from Internet service providers, including those who Internet service providers, including those who provide “cloud” services to store documents.provide “cloud” services to store documents.

Amendment 2: Require notifications to people Amendment 2: Require notifications to people when the government obtains electronic when the government obtains electronic communication information about them.communication information about them.

Source: Senate Bill 607Source: Senate Bill 607

Senate Bill 607 (April Senate Bill 607 (April 2013)2013)

The Leahy-Lee The Leahy-Lee Amendment Amendment

(GovTrack.us Prognosis)(GovTrack.us Prognosis)

The Panoptic Effect The Panoptic Effect (1785)(1785)

““If (prisoners) have If (prisoners) have no way of knowing no way of knowing exactly when they exactly when they are being watched, are being watched, they end up having they end up having to assume they are to assume they are under surveillance under surveillance all the time.”all the time.”

Source: Source: MacKinnon, 2012, MacKinnon, 2012, p. 80p. 80

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The Panoptic Effect in Digital The Panoptic Effect in Digital SpaceSpace

Rebecca MacKinnonRebecca MacKinnon

Lack of sufficient public oversight and Lack of sufficient public oversight and transparency about government surveillance transparency about government surveillance

through private networks can dampen through private networks can dampen dissent and activism over time through the dissent and activism over time through the

“Panopticon effect.”“Panopticon effect.”

References | Sources References | Sources Anderson, N. (2013), Slate: Anderson, N. (2013), Slate: Thanks, Smilin BobThanks, Smilin Bob

Auerbach, D (2013), Slate: Auerbach, D (2013), Slate: How Microsoft Lost Its Way, as Understood Through The WireHow Microsoft Lost Its Way, as Understood Through The Wire

Cohen, N. (2011), The New York Times: Cohen, N. (2011), The New York Times: Twitter Shines a Spotlight on Secret FBI SubpoenasTwitter Shines a Spotlight on Secret FBI Subpoenas

Coleman, (2013): Coding Freedom: The Ethics and Aesthetics of Coleman, (2013): Coding Freedom: The Ethics and Aesthetics of HackingHacking

Gibney, A. (2013): Gibney, A. (2013): We Steal Secrets: The Story of WikiLeaks (Documentary)We Steal Secrets: The Story of WikiLeaks (Documentary)

Helft, M. & Milller. C.C. (2011), The New York Times: Helft, M. & Milller. C.C. (2011), The New York Times: 1986 Privacy Law is Outrun by the Web1986 Privacy Law is Outrun by the Web

Leahy-Lee Electronic Communications Privacy Act Amendments Leahy-Lee Electronic Communications Privacy Act Amendments (2013): (2013): Senate Bill 607Senate Bill 607

References | Sources References | Sources Kerr, O. S. (2009): Kerr, O. S. (2009): The Case for the Third-Party DoctrineThe Case for the Third-Party Doctrine

MacKinnon, R. (2012), Consent of the Networked: The MacKinnon, R. (2012), Consent of the Networked: The Worldwide Struggle for Internet Freedom, pp. 76-82.Worldwide Struggle for Internet Freedom, pp. 76-82.

Sengupta, S. (2013), The New York Times: Sengupta, S. (2013), The New York Times: Updating an E-Mail Law From the Last CenturyUpdating an E-Mail Law From the Last Century

Warshak Decision: Warshak Decision: http://www.ca6.uscourts.gov/opinions.pdf/10a0377p-06.phttp://www.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdfdf

Villasenor, J. (2013), The Atlantic: Villasenor, J. (2013), The Atlantic: What You Need to Know about the Third-Party DoctrineWhat You Need to Know about the Third-Party Doctrine

U.S. Justice Department: U.S. Justice Department: Electronic Communications Privacy ActElectronic Communications Privacy Act

Image Credits | OneImage Credits | One

Rotary Telephone (photo): Rotary Telephone (photo): www.bobcb518.wordpress.comwww.bobcb518.wordpress.com

The Gavel: The Gavel: www.tourolawreviw.comwww.tourolawreviw.com

Enzyte Box (Steven Warshak): Enzyte Box (Steven Warshak): www.indyposted.comwww.indyposted.com

Steven Warshak (profile photo): Steven Warshak (profile photo): www.cleveland.comwww.cleveland.com

Electronic Communications Privacy Act (Graphic): Electronic Communications Privacy Act (Graphic): aclu.orgaclu.org

The Fourth Amendment (Text): The Fourth Amendment (Text): rulesforrebels.blogspot.comrulesforrebels.blogspot.com

Privacy Policy (photo): Privacy Policy (photo): qualityliferesources.comqualityliferesources.com

Calyx Internet Access: The New York TimesCalyx Internet Access: The New York Times

Image Credits | TwoImage Credits | TwoCome Back with a Warrant (photo): Come Back with a Warrant (photo): www.flexyourrights.orgwww.flexyourrights.org

The Wire, Burner: The Wire, Burner: whoiskamryn.comwhoiskamryn.com

The Wire, Police: The Wire, Police: seattleweekly.comseattleweekly.com

The Wire, Blue Lines: The Wire, Blue Lines: en.wikipedia.orgen.wikipedia.org

The Wire, Wordmark: The Wire, Wordmark: sleepingatlast.comsleepingatlast.com

Statesville Prison, Panoptic Effect: Statesville Prison, Panoptic Effect: heterotopiastudies.comheterotopiastudies.com

Net Art Theory, Prisoner and Computer User: Net Art Theory, Prisoner and Computer User: kareneliot.dekareneliot.de