Post by Thad Floryan
Today's (13-JUNE-2014) FAS' "Secrecy News" cites the following, among
Internet Governance and the Domain Name System: Issues for Congress,
Given these excerpts from the document:
Before the advent of modern communications, government officials
could not simply subpoena an Internet Service Provider (ISP), or
Amazon, or Google for information relating to a target of
investigation, but had to enter the suspect's home or office,
sometimes by force, to retrieve personal information directly
The Ninth Circuit found that like the telephone numbers in Smith,
email and Internet users should know that addressing information
is provided to and used by Internet Service Providers (ISP) for
the specific purpose of directing the routing of information.
In Warshak, the Sixth Circuit noted that the ISP was acting as an
"intermediary that makes email communication possible." Just
like the post office which acts as an intermediary of a letter,
and the telephone company which acts as an intermediary to the
voice content of phone calls, "emails must pass through an ISP's
server to reach their intended recipient." And just as the
police are prohibited from accessing communications from the post
office or a telephone company without first obtaining a warrant,
the Sixth Circuit held that a warrant should equally be required
to access more modern forms of communications.
I should have included this CRS document, too:
THE FOURTH AMENDMENT THIRD-PARTY DOCTRINE, & MORE FROM CRS
People who voluntarily share information with a third party are not
entitled to an expectation of privacy concerning that information under the
so-called "third-party doctrine" that currently prevails in judicial
interpretations of the Fourth Amendment to the Constitution.
The implications of the third-party doctrine are profound, a new report
from the Congressional Research Service explains.
It "permits the government access to, as a matter of Fourth Amendment law,
a vast amount of information about individuals, such as the websites they
visit; who they have emailed; the phone numbers they dial; and their
utility, banking, and education records, just to name a few."
While the third-party doctrine comports well with other Fourth Amendment
case law, CRS said, its continuing validity has lately come into question.
"Several events have precipitated renewed debates over its continued
existence. First was the Supreme Court's decision in the GPS tracking case,
United States v. Jones.... Second was the Edward Snowden leaks relating to
the National Security Agency's telephone metadata program...."
"This report explores the third-party doctrine, including its historical
background, its legal and practical underpinnings, and its present and
potential future applications. It explores the major third-party doctrine
cases and fits them within the larger Fourth Amendment framework. It
surveys the various doctrinal and practical arguments for and against its
continued application. Lastly, this report describes congressional efforts
to supplement legal protection for access to third-party records, as well
as suggesting possible future directions in the law."
A copy of the new report was obtained by Secrecy News. See "The Fourth
Amendment Third-Party Doctrine," June 5, 2014: