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As our digital devices become extensions of ourselves, law enforcement is looking to take advantage in court. A series of recent decisions from a local judge rolled back the government’s power to use emails and other online data against suspects, but most of the decisions have already been overturned. Kojo explores the state of online privacy and what can and will be used against you in court.
- Orin Kerr Fred C. Stevenson Research Professor of Law, The George Washington University Law School
- Zoe Tillman Staff Reporter, National Law Journal
MR. KOJO NNAMDIYou have the right to remain silent. Anything you email, tweet or blog can and will be used against you in a court of law. Okay. Maybe those aren't the exact words we typically hear in police dramas but a series of recent court decisions in the district are challenging the way we think about what the cops can see in our Gmail and Facebook accounts. Electronic records like text messages, emails and social media accounts are goldmines for police, giving them access to thousands if not millions of documents. So what parts of our private communications are off limits to the police and what fair game?
MR. KOJO NNAMDIJoining me now to discuss digital data and law enforcement is Orin Kerr. He's a professor at George Washington University School of Law. Orin Kerr, thank you for joining us.
MR. ORIN KERRGreat to be here.
NNAMDIAlso in studio with us is Zoe Tillman, staff reporter with National Law Journal. Zoe Tillman, thank you for joining us.
MS. ZOE TILLMANThank you for having me.
NNAMDIYou too can join the conversation with your questions or comments. How should the government handle online privacy in court? Should they be able to access your accounts if they might find evidence? Let us know. 800-433-8850 is our number or you can send email to email@example.com. Orin Kerr, there have been a serious of recent court decisions here in Washington about how the government can handle warrants for digital information like email. And the magistrate judge made some rulings, some of which have already been overturned. What's going on in the courts right now?
KERRWell, the really big question is how can the government execute a search warrant for email? If you think about how the government would execute a search warrant for just physical evidence in the physical world, they go into somebody's house, they look through the house for evidence and then they leave. Matters get more complicated when it's a search for electronic evidence because electronic evidence takes a really long time to search through. So what courts have allowed in the case of physical computers, like say a laptop computer, is for the government to go in, execute the warrant at the house, seize the physical computer and then remove it and search it offsite.
KERRThe big question that the new decisions have dealt with is how do you execute a search warrant for email. In particular, what's the role of the government and what can the government see and what's the role of the provider, the service provider that actually has the email and what can they do?
KERRIn the magistrate judge's decision, the magistrate judge said that it's impermissible for the government to get the contents of the entire account and then search the entire account. Instead it has to be the provider that actually executes the warrant and only gives the responsive information to the investigators.
NNAMDILet's step back for a moment because we've been talking about the magistrate judge. What exactly is a magistrate judge? Is this kind of process the norm?
KERRWell, a magistrate judge is kind of a junior judge in the federal system. He's a judge who's appointed to help the -- what they call Article 3 judges, the full judges that were nominated by the president, confirmed by the Senate. And a magistrate judge has a lot of different tasks including reviewing applications for search warrants. So federal law requires the government to go to a judge such as a magistrate judge and show the judge that they have probably cause and they've sort of satisfied all the requirements for a warrant.
KERRAnd what's happened in these cases, which is very unusual, is the government came to the judge, said we want to search an email account. And the judge said, I think you have probably cause but I'm going to deny your applications because I don't like the way the warrants are going to be executed, what's going to actually happen once the warrant has been signed. So this has led to a litigation in the district court, basically the judge level above the magistrate judge over what is allowed.
KERRAnd really the issue for all of us is, if the government has reason to think that there's evidence of a crime in an email account, what's the procedure for executing that warrant? They're not going to break into Google and look through Google servers. Instead, there's going to be some role for the provider, like Google, some role for law enforcement. And we're just trying to figure out what those different roles are.
NNAMDIZoe Tillman, a number of recent legal cases dealing with this issue of online privacy, we're now seeing more instances where police and prosecutors want to search cell phones and email. But there might be some pushback. Can you give us an example of what's being decided in these cases?
TILLMANSure. So as Orin mentioned, the magistrate judge in D.C. Judge Facciola has issued a series of rulings since late last year starting with really a search warrant for the Facebook account for the Navy Yard shooter Aaron Alexis. And at the time he said, I have some concerns about the scope of the requests for electronic information. And the next time you come back to me, I want more details on how these searches are going to take place. I want more specifics on what's going to happen to the data after you're finished. Just more specificity.
TILLMANAnd what we saw this year were a series of requests for search warrants in which the judge found that they had failed to follow his guidelines back from the fall. And you could see in the rulings and his writing a growing frustration with what he saw as the government's refusal to narrow its requests and provide more details on what would happen with this information. And so he denied their requests for search warrants prompting the government to then appeal.
TILLMANSo search -- magistrate judge rulings can be essentially appealed to federal district judges. And they can decide -- and they can review those rulings. And what we saw last week was the chief judge of the D.C. federal court stepping in and reversing Magistrate Judge Facciola and saying, well, actually allowing the government to take the contents of an email account and then do the search for the information that they wanted in the way that the government had asked is permissible. And it is okay and there are -- there is a need to balance privacy interests with law enforcement interests. But he saw -- he thought it was sufficient under the Fourth Amendment.
NNAMDI800-433-8850. To what extent are our emails and other online correspondence private? Do we give up any right to privacy when we put things on the internet, 800-433-8850. You can send email to firstname.lastname@example.org. We're talking with Zoe Tillman. She is a staff reporter with National Law Journal and Orin Kerr. He's a professor at George Washington University School of Law. Orin, talk about some other examples of how these questions of online privacy are playing out in court, cell site cases.
KERRYeah, there's been a string of cases reaching all sorts of different results. On the issue of what the constitutional protection is, if any, for cell site data. Now, let me step back a little bit and say what that means. Whenever you're using a cell phone or whenever your cell phone is on, it's in communication with local cell towers which the network needs to know where your phone is located so it can make your calls or send your text messages. So basically the phone company needs to know where you are. And it does that by having local cell towers.
KERRThat creates records of where the phone is located, roughly speaking, maybe to the level of maybe a neighborhood of where the phone is located. And then in a string of cases the government has been using this information to try to prove that people were in a particular place where a crime occurred.
KERRSo there have been a few cases in the court of appeals now, one recent decision, one still pending involving robberies where the government obtained these records from the cell provider. And those records show that the suspect's phone was in the location of the robberies at the time that the robberies occurred. And the question is whether the government needed a probably cause search warrant in order to get those records.
NNAMDIAnother case where the government had apparently seized a computer years ago with a warrant. Then the person was arrested again and this time it was ruled that the government could not access the same computer or files for evidence?
KERRThat's right. Yeah, this is another case called United States versus Ganius (sp?) from an influential court in New York. And there the court said, okay, we allow the government to over seize when they go collect a computer in order to search it for evidence. And that means the government has copies of files that really they shouldn't have.
KERRSo in that particular case the government executed a search warrant, copied the target's files from the target's computer. Did not actually seize the physical computer but had those files, and then took advantage of the fact that it had those files when years later it suspected that the individual was guilty -- involved in another crime.
KERRAnd so they got a second warrant and said, well, let's search the files that we have. And the court said, you can't do that. The fact that you can over seize those files the first time means there has to be limits on what can be searched the second time, even with a warrant. So courts are really just trying to figure out all these electronic privacy issues at the same time. And we're getting a lot of different decisions and, you know, I think a lot of these issues are going to end up being fodder for a future Supreme Court decision in a couple years.
NNAMDICitizens are also clearly concerned about this. Let's hear what Eileen in Washington, D.C. has to say. Eileen, you're on the air. Go ahead, please.
EILEENHi there. Thank you for taking my call. Just a quick question, how does the federal government currently execute a search warrant for physical letters? And I'll take my question off the air.
NNAMDIWhen you said for snail mail.
EILEENYes, for snail mail because electronic communications are, in fact, the new version of physical letters.
NNAMDIAnd I guess what you're saying is that snail mail is something that you will have in a particular location in your home. And so if the government is looking for snail mail in your home, that's all it's looking for. It's not looking at everything, I guess, in your home, so you tell me.
EILEENWell, and it would have to look for particular kinds of snail mail.
EILEENIt's not going to be a vacuum cleaner for, you know, all physical correspondence.
NNAMDIOr going through all of your mail.
EILEENIt has to be for particular correspondence.
NNAMDIZoe Tillman, yes.
TILLMANRight. So in the case of physical mail at your home, you know, that would be a traditional search warrant where they would need to go to a judge and say, we believe certain information or certain material is at a particular residence. And they would have to show probably cause and get permission from a judge to go get that. And then they would seize materials from the home.
TILLMANThe difference here is that's a physical location where the parameters are pretty clear as to what they can get and where they can get it. It's the four walls of the house. They've told the judge what they want and why they think they're entitled to it. The difference with electronic information is the scope is potentially so much broader. And there is so much information that we keep online. And unlike the four walls of your home, the parameters of the internet are not as clear.
TILLMANAnd even when we're talking about an email account, the parameters are still not necessarily clear. There could be considerations such as a time period where it might be limited. They would maybe need to be limited by certain search terms for what they're looking for. But a name might be spelled two different ways and that would need to be accounted for. The variable -- there are just so many more variables when it comes to electronic information versus information in a physical place where...
NNAMDIWhich is what -- and Eileen, thank you for your call -- which is what the aforementioned Judge John Facciola seems to be concerned about. He ruled last year on the Navy Yard shooting, as you mentioned, and whether to grand access to the suspect's Facebook page. Now he's making more rulings about government power. Any insights as a result of this into his thinking around this issue?
TILLMANSo magistrate judges see these types of search warrants all the time. They're on the frontlines of dealing with these types of routine criminal case investigation issues. So normally they review search warrants on a regular basis. So they're the ones seeing these coming in all the time. And perhaps he's -- he's been doing this work since 1997 and he's known in the legal world as an expert on electronic information issues, electronic discovery evidence. He's really been on the frontlines of these types of issues. And this seems to be an intersection of his expertise on electronic information and his expertise reviewing search warrants.
TILLMANAnd, you know, we don't know his motivation or why now he's decided to issue rulings on these issues in the way that he has. But it does seem to make sense, given his past expertise in both of these areas.
NNAMDIOrin Kerr, last year there was a class-action lawsuit filed against Google for the mass data collection that it was doing in Gmail. Google responded by saying, "A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Which basically means if you put it online in any way, email, social media, or otherwise, it's no longer private. Is the term online privacy and oxymoron?
KERRI don't think it is. So, so far, what courts have said is that there's no constitutional protection in metadata, that is sort of non-content information, information about your communications. For the most part, courts have said there's no constitutional protection in that. But that there is constitutional protection in the contents of your communication. So, for example, if you have a Gmail account or any sort of email account, you're not communicating, you're not sending your message to the provider, to Google or to Yahoo or whoever the provider is.
KERRThey're just an intermediary. And courts so far have said you do have Fourth Amendment rights. So, for example, the government needs a probable cause search warrant to get access to your online files, even though they're remotely stored. They could be kind of anywhere in the world, not in your house. And Google's situation is a little bit different because of the notice that they're providing in their terms of service, saying, "We reserve the right to screen email," for example, "for various reasons."
KERRAnd so that creates separate questions of whether -- even though you have these rights in the first place, you can effectively kind of wave those rights by agreeing to when you sign up for the account.
NNAMDIHow would you characterize that apparent shift? Are we moving toward more or less privacy when it comes to our online communication?
KERRYeah, I think the answer is about the same. So you see little bits and pieces of signs from different court decisions suggesting one and suggesting the other. And a lot of uncertainty. But I think courts are roughly trying to recreate the amount of privacy online that you offline. But, with that said, there's just a lot of influx right now.
KERRAnd the Supreme Court's recent decision in Riley versus California, saying that warrant is required to access a cellphone incident to arrest, is a really good example of how courts are looking at electronic privacy in new ways. And in that context saying there is constitutional protection where there wouldn't be for a non-digital device.
NNAMDIGot to take a short break. When we come back we'll continue this conversation. If you have called, stay on the line. If you'd like to call, the number is 800-433-8850. Should internet companies flag illegal activity when they see it? Are people who discuss crime over email just asking to be caught? 800-433-8850. Send email to email@example.com. Do not confess to any crimes. You can also send us a tweet, @kojoshow. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're discussing online privacy in court with Zoe Tillman, staff reporter with the National Law Journal. And Orin Kerr, professor at George Washington University School of Law. And taking your calls at 800-433-8850. Zoe Tillman, the government is now making a lot of requests to access things like email and social media accounts. How are the providers handling those requests? Are they making any efforts to protect their users?
TILLMANWhat the providers have done is adopted policies where if they get a subpoena for information about your account -- Twitter, for instance, has said that it will notify users if it gets a subpoena for information about your Twitter account for instance. And what that has done is then spurred the government to be in a position where it goes to court to say, Judge, please tell Twitter not to alert this user about this request for their information.
TILLMANAnd we've seen some cases here in D.C., where the government has asked the judge for an order essentially telling Twitter -- and Yahoo was the other case -- that they are barred from alerting the user under the policy that they have about the subpoena for this information. And the same magistrate judge that we've talking about, John Facciola, again took a step back and said, "Wait a second. Maybe we should give Twitter and Yahoo and opportunity to weigh in on this."
TILLMANAnd he was, again, reversed by the chief judge of the court recently, who said, "No. The law doesn't provide an opportunity for Twitter and Yahoo to weight in when the government makes this type of request." So that's one area where these issues are again ending up in court. But Twitter and Yahoo, the providers, aren't part of these cases. This is a dialogue between the government and the courts.
NNAMDIOn to Chuck, in Annapolis, Md., who has a question along these lines. Chuck, you're on the air. Go ahead, please.
CHUCKYes. I have a question that's sort of the flip side of my right to know what's going on. So, for example, I want my government to have metadata so they can patrol the information highway, shipping lanes and ports to identify bad actors who might hurt me personally or crash the, you know, the electric networks on which my community depends. But do I not also have the right to look outside my own home's internet window to see who might be lurking there?
CHUCKAnd would that give me the right to go to Google, Facebook, Yahoo, or whoever the providers are, and be able to rightfully demand the information that I should know about, who might be stalking my internet door to hurt me in some way. Does that give me the right to know that same information in the same exact way that I demand my government to know it, so that not only would my government protect me, but I could take measures to protect myself?
CHUCKJust like I have the right to open up my window and see if a mob with, you know, torches and shotguns and, you know, are yelling and running down the street and I can either lock the door or cut and run? How do I do that over the internet and what rights do I have?
NNAMDIYou also seem to be implying the question, Chuck, of whether or not you can protect yourself against the government in that way, if it is in fact the government that is seeking your information by way of subpoena.
CHUCKThat could be true also. I mean, if it's true that I demand that the government have the right to use metadata -- and I actually expect them to patrol the open seas, you know, from marauding navies or brigands locally. I have every right to know that same information so I can notice a brigand. And at the same time, if there's a government guy who's acting illegally because he's taking advantage of his power to…
NNAMDIWell, this is not necessarily illegal. But I will have Orin Kerr respond.
KERRSo you certainly have a right to set up, you know, if you have a network home internet access, network for example, you can set up a network defense and monitor intrusions into -- or attempted intrusions into your own network. You don't have a general right to go to your service provider and have them give you records about how your account was used. It's not entirely clear to me what records you would mean. Because, you know, the idea of, I think you said stalking your internet door, that's a physical concept that may not have sort of a clear internet equivalent.
KERRBut the law says that if the provider wants to give non-content records to somebody who doesn't represent the government, such as a private citizen, they can, but as a practical matter they don't. I mean, the providers don't want to be in the business of fielding requests for other people's private account information. And so those requests are routinely denied.
NNAMDIZoe Tillman, what, if any, is there a -- what Orin called physical equivalent to the government asking for a subpoena of my records in some way or the other, if those records are not digital and me not being allowed to know that the government has subpoenaed my records?
TILLMANWhat we found over the past year, really since the leaks by former contractor Edward Snowden, is that there was a lot of information that nobody -- none of -- not -- none of us really knew about the extent of surveillance of our electronic information. And since that all came out, what we've seen is a trickle of information about the extent of that surveillance. So we're starting to see unsealed orders from what's known as the Foreign Intelligence Surveillance Court, which approves government surveillance requests.
TILLMANSome unsealed orders and opinions from that court detailing the nature of the type of searches that the government has asked permission to do into your electronic information. So we're getting more information on that. And there's certainly been a push by the public and also on Capitol Hill for more transparency about what exactly these searches are, what the government is asking permission to look at, how this court -- which operates mostly behind closed doors -- how they're responding to these requests. So we're getting some transparency on that and just starting to get an understanding of that.
NNAMDIOrin Kerr, I wanted to go back to the self-site information that you talked about earlier that will probably get to the Supreme Court at some point. If I'm walking around with my phone today, and a month or several months from now I am suspected of a crime. Can cell-site data tell police where I was on the afternoon of August 12th?
KERRIt can if a communication was made to or from your phone during that time. So that would be a call, for example. If you make a call, it'll give the rough, say the neighborhood of where your phone was located. I think that also includes text messages or information uploaded or downloaded. Although, I'm not as clear on that myself. So it may be that those records are available. They're not going to say you were standing on a particular street corner or in a particular room.
KERRThey might say you were in a particular neighborhood. And exactly how tight the resolution is of that information really depends on, for example, in urban areas it'll usually be a tighter resolution. They might say, you know, within a few blocks. Rural area it might be, you know, in a county, for example. So it's rough location information, but that would be available later on, historically, whenever the phone was used.
NNAMDIHere is Rob, in Lorton, Va. Rob, your turn.
ROBHi, Kojo. The corporate collection of data is of more concern to me simply because I don't vote for these folks. Not that the voting system -- or that we actually have a democracy any more. It's in the hands of those corporations, but the fact is that the paradigm of a corporation means that I have no voice whatsoever. The idea that I can actually opt out of ever using Google, right. Sure. This doesn't really exist. The fact is the government should have -- and still could -- be my agent to control these things.
ROBAnd because the control of the election system is now out of the hands of the citizens and back into the hands of the corporations, as it was a 100 years ago…
NNAMDIBut, as you know, there are people who will disagree with you vociferously about that, but go ahead, please.
ROBI really could care less about them.
ROBYou know, when a 2x4 hits you over…
NNAMDIBut go ahead, go ahead.
ROB…the head, disagreeing as to its existence really doesn't matter.
NNAMDIWell, there were those who will say, my friend, Bob -- Rob, you do not have the monopoly on truth. But what's the point you wanted to make?
ROBJust that the collection of data and metadata upon us occurs all the time. The best dissents we have is to use snail-mail.
NNAMDISo that we essentially give up privacy once we decide to enter the online environment. It's an argument that's been made here quite a lot recently. Is that, in fact, what we do?
KERRYou know, it's funny, a lot of times people have an impression as to what the privacy is in the offline world. It's mistaken. So it was revealed I think about a year ago, the government actually makes photocopies of the outside of all mail, all snail-mail sent to the United States. So it keeps copies of that. And that can obtained by the government with a mere administrative request. They don't even have to go to court. So there is no privacy, at least in the outsides of mail.
KERRAnd then with the inside of mail, a search warrant is required, just like in the online setting. So there are practicalities, there are some differences in terms of how easy it might be to get access to the email or to the snail-mail.
NNAMDISo the fact that we tend to think of our snail-mail as completely private is, well, delusional.
KERRThe outside is not at all private. The inside is still private.
NNAMDIZoe, with smartphones so much of our data lives in our pockets. Thousands of emails, text messages and tweets with probably -- possibly incriminating evidence, how is law enforcement handling smartphones specifically?
TILLMANAs Orin mentioned, we had a pretty big ruling from the Supreme Court earlier this year, answering or attempting to answer that question. And what the Court said was that in most cases when you're arrested and if police take your smartphone, they can't just turn it on and do a search of all the contents. They can't just go on and look at all your emails and all your photos and your contacts. They need to wait. And they need to go get a search warrant from a judge, just as they would in the offline world for other personal material.
TILLMANI think what we're seeing is courts still trying to balance those individual privacy rights, that are spelled out in the Fourth Amendment, with all this new technology. And what I think we see courts doing is acknowledging just how much information we keep online now and what a different universe it is from the physical material that they're used to dealing with in search warrants. When you are in your home, you don't keep written records in a stack on the table with all of your correspondence over the course of your life and all of your communication.
TILLMANIt's not just sitting there the way it is online. And I think we do see courts trying to balance that. And sometimes they come out more in favor of folks who want greater privacy and sometimes they side with law enforcement. But there -- I think there is an acknowledgement of the difference between the online world and how much information is stored there and how it's stored there and how information is kept offline.
NNAMDIOrin, we only have about a minute left, but there was a recent case in Texas where Google flagged a man's email for containing child pornography and turned him over to the authorities, who later charged him. Few people are going to argue that that's a bad thing, but is it possible our providers will flag email accounts for other crimes in the future?
KERRBased on the technology they're using, no. Because what they're doing is they're looking only for specific imprints of known images of child pornography. Basically scanning in the same way that a company, an internet company might scan for viruses, for example. So they're just looking for that characteristic imprint of the file. They're not going in and looking sort of more broadly to figure out what users are doing.
NNAMDIOrin Kerr is a professor at George Washington University School of Law. Thank you so much for joining us.
NNAMDIAnd Zoe Tillman is a staff reporter with National Law Journal. Zoe Tillman, thank you for joining us.
NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.
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