Intercepting Communications: Title III Applied to On-Line Conduct Sean B. Hoar [email protected]

Intercepting Communications: Intercepting Communications:

Title III Applied to Title III Applied to On-Line ConductOn-Line Conduct

Sean B. HoarSean B. Hoar

[email protected]@usdoj.gov

Class OverviewClass Overview

I. I. Intercepting communications - Title III applied to on-line conductIntercepting communications - Title III applied to on-line conduct

II.II. 18 U.S.C. §§ 2510-22; 3121-2718 U.S.C. §§ 2510-22; 3121-27

III.III. United States v. SeidlitzUnited States v. Seidlitz

IV.IV. Smith v. MarylandSmith v. Maryland

V.V. United States v. SmithUnited States v. Smith

VI. VI. Fraser v. Nationwide Fraser v. Nationwide

VII. VII. Konop v. Hawaiian AirlinesKonop v. Hawaiian Airlines

VIII. VIII. United States v. CouncilmanUnited States v. Councilman

Bonus Current Events Trivia Question: Within the past two years, who resigned from public office, due to evidence derived from a federal wiretap?

Trivia Question AnswerTrivia Question Answer

Eliot Spitzer was ousted as the Governor of New Eliot Spitzer was ousted as the Governor of New York in March, 2008, for his involvement in a York in March, 2008, for his involvement in a high-end prostitution service called Emperor’s high-end prostitution service called Emperor’s Club VIP based in New York City. He allegedly Club VIP based in New York City. He allegedly spent over $15,000 during a six-month period on spent over $15,000 during a six-month period on women from the service, and over $80,000 on women from the service, and over $80,000 on prostitutes over several years while Attorney prostitutes over several years while Attorney General and then Governor. His conduct was General and then Governor. His conduct was discovered through suspicious monetary discovered through suspicious monetary transfers and conversations intercepted on a transfers and conversations intercepted on a federal wiretap. The federal wiretap intercepted federal wiretap. The federal wiretap intercepted more than 5000 telephone calls and text more than 5000 telephone calls and text messages. messages.

United States v. SeidlitzUnited States v. Seidlitz589 F.2d 152 (4589 F.2d 152 (4thth Cir. 1978) Cir. 1978)

FactsFacts:: Seidlitz, Deputy Project Director for Optimum Systems Inc. Seidlitz, Deputy Project Director for Optimum Systems Inc. (OSI), helped build a computer facility in Maryland for the Federal (OSI), helped build a computer facility in Maryland for the Federal Energy Administration. Seidlitz then left OSI to form his own computer Energy Administration. Seidlitz then left OSI to form his own computer firm. He later remotely accessed the OSI computer network and stole firm. He later remotely accessed the OSI computer network and stole source code for the WYLBUR software system. OSI identified Seidlitz source code for the WYLBUR software system. OSI identified Seidlitz by tracing his communications with the OSI network. Search warrants by tracing his communications with the OSI network. Search warrants were served on Seidlitz’s office and home and 40 rolls of computer were served on Seidlitz’s office and home and 40 rolls of computer paper containing the WYLBUR source were found. Seidlitz was paper containing the WYLBUR source were found. Seidlitz was charged with transmitting phone calls in interstate commerce as part of a charged with transmitting phone calls in interstate commerce as part of a scheme to defraud OSI. scheme to defraud OSI.

Cathode Ray Tube (CRT) computers such as these were used at the facility in Rockville, MD where Seidlitz was charged with electronically intruding.

United States v. SeidlitzUnited States v. Seidlitz589 F.2d 152 (4589 F.2d 152 (4thth Cir. 1978) Cir. 1978)

Issues: (1) Whether Title III or the Fourth Amendment were violated when, with the consent of the owner of the network (a party to the communications), Seidlitz’s telephonic communications with the OCI network were obtained, and (2) whether Title III or the Fourth Amendment were violated when Seidlitz’s telephone calls into the OCI computer network were traced.

Holding: (1) Title III specifically authorizes the interception of a communication by a party to the communication or by a person acting with the consent of a party to the communication. (2) The telephone traces were not the sort of “interceptions” of communications proscribed by Title III in that they did not obtain content. Title III was “intended to protect the privacy of the communication itself, and not the means of communication.”

The court questioned whether someone “caught with their hand in the cookie jar” could raise objections to the evidence . . .

Smith v. Maryland, 90 S.Ct. 2577 (1979)Smith v. Maryland, 90 S.Ct. 2577 (1979)Facts:Facts: After Patricia McDonough of Baltimore was robbed, she gave After Patricia McDonough of Baltimore was robbed, she gave police a description of the robber and the car he was driving (1975 Monte police a description of the robber and the car he was driving (1975 Monte Carlo – pictured below). Carlo – pictured below). After the robbery, McDonough began receiving After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. By tracing the license plate to police moving slowly past her home. By tracing the license plate number, police learned that the car was registered in the name Michael Lee number, police learned that the car was registered in the name Michael Lee Smith. Smith. Without a warrant or court order, they installed a pen register to Without a warrant or court order, they installed a pen register to record numbers dialed from the phone in his home. When the police finally record numbers dialed from the phone in his home. When the police finally searched Smith’s home, they found a phone book with a page turned down searched Smith’s home, they found a phone book with a page turned down to McDonough’s name and number. Smith was subsequently convicted of to McDonough’s name and number. Smith was subsequently convicted of robbery, but he sought to suppress evidence obtained from the pen register.robbery, but he sought to suppress evidence obtained from the pen register.

Smith v. Maryland, 90 S.Ct. 2577 (1979)Smith v. Maryland, 90 S.Ct. 2577 (1979)

A pen register device such as this was at issue in Smith v. Maryland. Note the roll of paper where the machine prints out the numbers dialed.

Issue: Does the installation and use of a pen register constitute a search within the meaning of the Fourth Amendment? Holding: Relying upon the two-part Katz test, the court held that (1) “the petitioner in all probability entertained no actual expectation of privacy” and even if he did, (2) his expectation was not “legitimate.” The installation and use of the pen register device was therefore not a search within the meaning of the Fourth Amendment and no warrant was required.

United States v. Smith, United States v. Smith, 155 F.3d 1051 (9155 F.3d 1051 (9thth Cir. 1998) Cir. 1998)

FactsFacts: : Smith was the VP of North Smith was the VP of North American Sales for PDA Engineering. He American Sales for PDA Engineering. He was charged with insider trading after a co-was charged with insider trading after a co-worker listened to a voicemail message he worker listened to a voicemail message he left on a company phone. The voicemail was left on a company phone. The voicemail was turned over to authorities and an extensive turned over to authorities and an extensive investigation ensued. The district court investigation ensued. The district court suppressed the voicemail message but not suppressed the voicemail message but not the remainder of the government’s evidence. the remainder of the government’s evidence. Smith was convicted of 11 counts of insider Smith was convicted of 11 counts of insider trading. trading.

Issue(s)Issue(s): : Was the voicemail message Was the voicemail message “intercepted” under the Wiretap Act or was it “intercepted” under the Wiretap Act or was it retrieved from storage under the Stored retrieved from storage under the Stored Communications Act? Communications Act?

United States v. Smith, United States v. Smith, 155 F.3d 1051 (9155 F.3d 1051 (9thth Cir. 1998) Cir. 1998)

Holding:Holding: Judge O’Scannlain (pictured), writing for the Ninth Judge O’Scannlain (pictured), writing for the Ninth Circuit, undertook an analysis of the statutory language in both Circuit, undertook an analysis of the statutory language in both the Wiretap Act and Stored Communications Act. At issue was the Wiretap Act and Stored Communications Act. At issue was the definition of the word “intercept.” After rejecting the the definition of the word “intercept.” After rejecting the government’s attempts to distinguish wire communications from government’s attempts to distinguish wire communications from electronic communications, the court held that the Wiretap Act electronic communications, the court held that the Wiretap Act governed and that the “retrieved” voicemail was “intercepted.” governed and that the “retrieved” voicemail was “intercepted.” However, it held that because there was a “sufficiently However, it held that because there was a “sufficiently attenuated” nexus between the “intercepted” voicemail and the attenuated” nexus between the “intercepted” voicemail and the government’s evidence, the district court was correct to allow it. government’s evidence, the district court was correct to allow it. After discussing (and rejecting) Smith’s materiality and intent After discussing (and rejecting) Smith’s materiality and intent arguments, the Ninth Circuit affirmed Smith’s convictions.arguments, the Ninth Circuit affirmed Smith’s convictions.

Discussion Questions: 1. Can there be an “interception” when access to communication content is not

contemporaneous to its transmission, but when the “communication” is stored?

2. Do you agree that the use of legislative history is the equivalent of “looking over the heads of guests for one’s friends”?

Fraser v. Nationwide Mut. Ins. Co.,Fraser v. Nationwide Mut. Ins. Co., 135 F.Supp.2d 623 (E.D. Penn. 2001)135 F.Supp.2d 623 (E.D. Penn. 2001)

Facts:Facts: Richard Fraser was employed by Nationwide Mutual Richard Fraser was employed by Nationwide Mutual Insurance as an at-will, independent salesman. Under this Insurance as an at-will, independent salesman. Under this employment arrangement, Fraser leased computer equipment employment arrangement, Fraser leased computer equipment and software from Nationwide. Fraser became involved in the and software from Nationwide. Fraser became involved in the Nationwide Insurance Independent Contractors Association Nationwide Insurance Independent Contractors Association (NIICA). He drafted a letter critical of Nationwide that was (NIICA). He drafted a letter critical of Nationwide that was directed to the company’s competitors. Company officials directed to the company’s competitors. Company officials accessed Fraser’s email on the server and discovered he had accessed Fraser’s email on the server and discovered he had sent it to at least one competitor. Shortly thereafter his Agent’s sent it to at least one competitor. Shortly thereafter his Agent’s Agreement was cancelled. Fraser ultimately sued Nationwide Agreement was cancelled. Fraser ultimately sued Nationwide

on several grounds. Nationwide moved for summary judgment.on several grounds. Nationwide moved for summary judgment.

Issue(s): Was Nationwide’s conduct an “interception” of an electronic communication under the Wiretap Act, unlawful “access” under the Stored Communications Act, or both, or a violation of neither Act?

Fraser v. Nationwide Mut. Ins. Co.,Fraser v. Nationwide Mut. Ins. Co., 135 F.Supp.2d 623 (E.D. Penn. 2001)135 F.Supp.2d 623 (E.D. Penn. 2001)

Holding:Holding: The court drew a distinction between in-The court drew a distinction between in-transit communications and emails that had already transit communications and emails that had already been received. Because Fraser’s email had already been received. Because Fraser’s email had already been received by the recipient, there was no been received by the recipient, there was no interception under the Wiretap Act. The court further interception under the Wiretap Act. The court further held that the retrieval of a message was not covered held that the retrieval of a message was not covered by the Stored Communications Act and therefore by the Stored Communications Act and therefore Nationwide’s conduct was not prohibited. Summary Nationwide’s conduct was not prohibited. Summary judgment was granted for Nationwide on all counts.judgment was granted for Nationwide on all counts. Rich Fraser has since

opened the R.A. Fraser Agency in Doylestown, PA. See www.rafraser.com

Konop v. Hawaiian AirlinesKonop v. Hawaiian AirlinesFacts:Facts: Robert Konop was a pilot for Hawaiian Robert Konop was a pilot for Hawaiian Airlines when he created a website to post Airlines when he created a website to post material critical of the airline and his union, the material critical of the airline and his union, the Air Line Pilots Association (ALPA). Although Air Line Pilots Association (ALPA). Although access to the website was restricted to those access to the website was restricted to those who Konop “invited,” executives from the who Konop “invited,” executives from the airline used the log-in information from several airline used the log-in information from several of Konop’s fellow pilots. Konop sued of Konop’s fellow pilots. Konop sued Hawaiian Airlines on several grounds including Hawaiian Airlines on several grounds including violation of the Wiretap Act and the Stored violation of the Wiretap Act and the Stored Communications Act.Communications Act.

Issue(s)Issue(s): : Did Hawaiian Airlines violate the Did Hawaiian Airlines violate the Wiretap Act or the Stored Communications Act Wiretap Act or the Stored Communications Act when it surreptitiously accessed Konop’s when it surreptitiously accessed Konop’s website?website?

Konop v. Hawaiian AirlinesKonop v. Hawaiian Airlines

Holding:Holding: The Ninth Circuit held that for a website such The Ninth Circuit held that for a website such as Konop’s to be “intercepted” in violation of the as Konop’s to be “intercepted” in violation of the Wiretap Act, it must be acquired during transmission, not Wiretap Act, it must be acquired during transmission, not while it is in electronic storage. The court affirmed the while it is in electronic storage. The court affirmed the airline’s summary judgment on this issue. However, after airline’s summary judgment on this issue. However, after analyzing the meaning of the term “user,” the court analyzing the meaning of the term “user,” the court reversed the district court’s grant of summary judgment reversed the district court’s grant of summary judgment for the airline on the Stored Communications Act claim.for the airline on the Stored Communications Act claim.

United States v. CouncilmanUnited States v. CouncilmanFacts:Facts: Bradford Councilman was the Vice President of Bradford Councilman was the Vice President of Interloc, Inc., and online seller of rare and out-of-print Interloc, Inc., and online seller of rare and out-of-print books. As a convenience to the book dealers who used books. As a convenience to the book dealers who used Interloc, the company offered to host their email Interloc, the company offered to host their email accounts with the domain suffix “@interloc.com” accounts with the domain suffix “@interloc.com” Councilman directed Interloc employees to send him a Councilman directed Interloc employees to send him a copy of all incoming email messages from amazon.com, copy of all incoming email messages from amazon.com, ostensibly to gain a commercial advantage. Councilman ostensibly to gain a commercial advantage. Councilman was charged with conspiracy (18 U.S.C. § 371) for was charged with conspiracy (18 U.S.C. § 371) for conspiring to violate the Wiretap Act. Following the conspiring to violate the Wiretap Act. Following the Konop Konop decision, the case was dismissed and a divided decision, the case was dismissed and a divided panel of the 1st Circuit affirmed. The First Circuit then panel of the 1st Circuit affirmed. The First Circuit then granted a rehearing en banc. granted a rehearing en banc.

Issue(s)Issue(s): : Were the copied emails “electronic Were the copied emails “electronic communications” and did Councilman’s actions communications” and did Councilman’s actions constitute an “interception,” as those terms are used in constitute an “interception,” as those terms are used in the statute?the statute?

United States v. CouncilmanUnited States v. Councilman

Holding:Holding: Judge Lipez (pictured) writing for the First Judge Lipez (pictured) writing for the First Circuit, held that emails obtained by Councilman Circuit, held that emails obtained by Councilman constituted an “electronic communication” and that his constituted an “electronic communication” and that his actions also were an “interception.” The court found that actions also were an “interception.” The court found that there was not a meaningful distinction between “in transit” there was not a meaningful distinction between “in transit” and “in storage.” The court also rejected Councilman’s and “in storage.” The court also rejected Councilman’s arguments on fair warning, lenity, vagueness, and arguments on fair warning, lenity, vagueness, and unforeseeably expansive interpretation. unforeseeably expansive interpretation.

Interloc has since become Alibris. See www.alibris.com

Judge Kermit Lipez

Electronic Surveillance in Electronic Surveillance in Communications NetworksCommunications Networks

Two federal statutes govern real-time Two federal statutes govern real-time electronic surveillance in federal criminal electronic surveillance in federal criminal investigationsinvestigations– Wiretap statute – 18 U.S.C. 2510-2522, first Wiretap statute – 18 U.S.C. 2510-2522, first

passed as the Omnibus Crime Control and passed as the Omnibus Crime Control and Safe Streets Act of 1968 (generally known as Safe Streets Act of 1968 (generally known as Title III);Title III);

– Pen register & trap and trace statute – 18 Pen register & trap and trace statute – 18 U.S.C. 3121-3127U.S.C. 3121-3127

Electronic Surveillance in Electronic Surveillance in Communications NetworksCommunications Networks

Title III and the Pen/trap statute coexist Title III and the Pen/trap statute coexist because they regulate access to different because they regulate access to different types of informationtypes of information– Title III – contentTitle III – content– Pen/trap statute – addressing and other non-Pen/trap statute – addressing and other non-

content informationcontent information

Pen Registers & Trap & Trace DevicesPen Registers & Trap & Trace Devices

What is a “pen register”?What is a “pen register”?– It is an instrument that records outgoing addressing It is an instrument that records outgoing addressing

information, such as the number dialed from a information, such as the number dialed from a telephonetelephone

– It is defined as “a device or process which records or It is defined as “a device or process which records or decodes dialing, routing, addressing, or signaling decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility information transmitted by an instrument or facility from which a wire or electronic communication is from which a wire or electronic communication is transmitted, provided, however, that such information transmitted, provided, however, that such information shall not include the contents of any communication”. shall not include the contents of any communication”. 18 U.S.C. 3127(3).18 U.S.C. 3127(3).


What is a trap and trace device?What is a trap and trace device?– It is an instrument that records incoming addressing It is an instrument that records incoming addressing

information, such as the telephone number information, such as the telephone number associated with an incoming callassociated with an incoming call

– It is defined as “a device or process which captures It is defined as “a device or process which captures the incoming electronic or other impulses which the incoming electronic or other impulses which identify the originating number or other dialing, identify the originating number or other dialing, routing, addressing, or signaling information routing, addressing, or signaling information reasonably likely to identify the source of a wire or reasonably likely to identify the source of a wire or electronic communication, provided, however, that electronic communication, provided, however, that such information shall not include the contents of such information shall not include the contents of any communication”. 18 U.S.C. 3127(4). any communication”. 18 U.S.C. 3127(4).


When can a pen/trap order be obtained?When can a pen/trap order be obtained?– when “the information likely to be obtained is when “the information likely to be obtained is

relevant to an ongoing criminal investigation.” relevant to an ongoing criminal investigation.” 18 U.S.C. 3122(b)(2).18 U.S.C. 3122(b)(2).


Limitation on use of pen/trap order Limitation on use of pen/trap order – A government agency authorized to install and use a A government agency authorized to install and use a

pen register or trap and trace device must use pen register or trap and trace device must use technology reasonably available to it that restricts the technology reasonably available to it that restricts the recording or decoding of electronic or other impulses recording or decoding of electronic or other impulses to the dialing, routing, addressing, and signaling to the dialing, routing, addressing, and signaling information utilized in the processing and transmitting information utilized in the processing and transmitting of wire or electronic communications so as not to of wire or electronic communications so as not to include the contents of any wire or electronic include the contents of any wire or electronic communications. 18 U.S.C. 3121(c).communications. 18 U.S.C. 3121(c).


What must an application for a pen/trap What must an application for a pen/trap order contain?order contain?– The identity of the applicantThe identity of the applicant– The law enforcement agency conducting the The law enforcement agency conducting the

investigationinvestigation– A certification that the information likely to be A certification that the information likely to be

obtained is relevant to an ongoing criminal obtained is relevant to an ongoing criminal investigation. 18 U.S.C. 3122(b)(1)-(2).investigation. 18 U.S.C. 3122(b)(1)-(2).


How long can a pen/trap order authorize a How long can a pen/trap order authorize a pen/trap to be used?pen/trap to be used?– For a period not to exceed 60 days. 18 For a period not to exceed 60 days. 18

U.S.C. 3123(c)(1).U.S.C. 3123(c)(1).– Extensions can be granted, through the same Extensions can be granted, through the same

process as an original order, for a period not process as an original order, for a period not to exceed 60 days. 18 U.S.C. 3123(c)(2).to exceed 60 days. 18 U.S.C. 3123(c)(2).


Can pen registers or trap and trace devices be Can pen registers or trap and trace devices be installed without an order?installed without an order?– Yes – but Yes – but

only when an emergency situation exists, and only when an emergency situation exists, and

when four conditions are fulfilled (18 U.S.C. 3125):when four conditions are fulfilled (18 U.S.C. 3125):– The first conditionThe first condition: the AG, DAG, Assoc. AG, an Asst. AG, or a State : the AG, DAG, Assoc. AG, an Asst. AG, or a State

AG or County DA (pursuant to a State statute), must “reasonably AG or County DA (pursuant to a State statute), must “reasonably determine” that an emergency situation exists that involvesdetermine” that an emergency situation exists that involves

Immediate danger of death or serious bodily injury to any person;Immediate danger of death or serious bodily injury to any person;

Conspiratorial activities characteristic of organized crime;Conspiratorial activities characteristic of organized crime;

An immediate threat to a national security interest; orAn immediate threat to a national security interest; or

An ongoing attack on a protected computer that constitutes a An ongoing attack on a protected computer that constitutes a felony crime.felony crime.

– The second conditionThe second condition: The emergency situation requires the : The emergency situation requires the installation and use of a pen register and trap and trace device before installation and use of a pen register and trap and trace device before an order authorizing their use can, with due diligence, be obtainedan order authorizing their use can, with due diligence, be obtained


Can pen registers or trap and trace Can pen registers or trap and trace devices be installed without an order?devices be installed without an order?– Yes – but Yes – but

only when an emergency situation exists, andonly when an emergency situation exists, and

when four conditions are fulfilled (18 U.S.C. 3125):when four conditions are fulfilled (18 U.S.C. 3125):– The third conditionThe third condition: there are grounds for which an order : there are grounds for which an order

could be obtainedcould be obtained– The fourth conditionThe fourth condition: within 48 hours after the : within 48 hours after the

installation has occurred, an order approving the installation has occurred, an order approving the installation and use is issued in accordance with 18 installation and use is issued in accordance with 18 U.S.C. 3123. U.S.C. 3123.

Title III – The Wiretap ActTitle III – The Wiretap Act

What is prohibited under Title III?What is prohibited under Title III?– Title III broadly prohibits the “interception” of Title III broadly prohibits the “interception” of

“oral communications,” “wire communications,” “oral communications,” “wire communications,” and “electronic communications.” and “electronic communications.”

Title III – The Wiretap ActTitle III – The Wiretap ActWhat must a Title III order obtainWhat must a Title III order obtain– Applicant’s authority to apply;Applicant’s authority to apply;– Identity of person making application;Identity of person making application;– Identity of officer authorizing application;Identity of officer authorizing application;– Facts justifying the request (“probable cause for belief”);Facts justifying the request (“probable cause for belief”);– Details of the offense being investigated;Details of the offense being investigated;– Nature and location of the facilities or place from where Nature and location of the facilities or place from where

surveillance will be conducted;surveillance will be conducted;– Type of communication to be intercepted;Type of communication to be intercepted;– Identity of person to be overheard;Identity of person to be overheard;– Inadequacy of alternative investigative procedures Inadequacy of alternative investigative procedures

(necessity for interception);(necessity for interception);– Period for which authorization is sought (max 30 days);Period for which authorization is sought (max 30 days);– Details concerning results of prior orders, if any.Details concerning results of prior orders, if any.


What process must be followed to obtain What process must be followed to obtain and implement a Title III order?and implement a Title III order?– Affidavit showing probable cause and Affidavit showing probable cause and

necessitynecessity– Prior approvalPrior approval– Judicial authorizationJudicial authorization– MinimizationMinimization– Sealing Sealing


What must the affidavit show? What must the affidavit show? – must show probable cause to believe that the must show probable cause to believe that the

interception will reveal evidence of a predicate felony interception will reveal evidence of a predicate felony offense listed in 18 U.S.C. 2516; offense listed in 18 U.S.C. 2516;

– must show that normal investigative procedures have must show that normal investigative procedures have been tried and failed, or that they reasonably appear to been tried and failed, or that they reasonably appear to be unlikely to succeed or to be too dangerous to be unlikely to succeed or to be too dangerous to employ; employ;

– must show probable cause that communication facility must show probable cause that communication facility is being used in a predicate crime;is being used in a predicate crime;

– must show that surveillance will be conducted in must show that surveillance will be conducted in manner that minimizes interception of communications manner that minimizes interception of communications that do not relate to predicate crime;that do not relate to predicate crime;


Case examplesCase examples– United States v. Thanad Paktipatt (Thai General)United States v. Thanad Paktipatt (Thai General)

Affidavit – 24 pagesAffidavit – 24 pages

ApplicationApplication

OrderOrder

Minimization guidelinesMinimization guidelines

– United States v. Piedad Sanchez (19 defendant case)United States v. Piedad Sanchez (19 defendant case)Affidavit – 56 pagesAffidavit – 56 pages

ApplicationApplication

OrderOrder

Minimization guidelinesMinimization guidelines

Title III – The Wiretap ActTitle III – The Wiretap ActDefinitionsDefinitions

Wire communicationWire communication– "wire communication" means any aural transfer "wire communication" means any aural transfer

made in whole or in part through the use of made in whole or in part through the use of facilities for the transmission of communications by facilities for the transmission of communications by the aid of wire, cable, or other like connection the aid of wire, cable, or other like connection between the point of origin and the point of between the point of origin and the point of reception (including the use of such connection in reception (including the use of such connection in a switching station) furnished or operated by any a switching station) furnished or operated by any person engaged in providing or operating such person engaged in providing or operating such facilities for the transmission of interstate or foreign facilities for the transmission of interstate or foreign communications or communications affecting communications or communications affecting interstate or foreign commerce. 18 U.S.C. interstate or foreign commerce. 18 U.S.C. 2510(1).2510(1).

Title III – The Wiretap Act\Title III – The Wiretap Act\DefinitionsDefinitions

Oral communicationOral communication– "oral communication" means any oral "oral communication" means any oral

communication uttered by a person exhibiting communication uttered by a person exhibiting an expectation that such communication is an expectation that such communication is not subject to interception under not subject to interception under circumstances justifying such expectation, but circumstances justifying such expectation, but such term does not include any electronic such term does not include any electronic communication. 18 U.S.C. 2510(2).communication. 18 U.S.C. 2510(2).


Electronic communicationElectronic communication– "electronic communication" means any transfer of "electronic communication" means any transfer of

signs, signals, writing, images, sounds, data, or signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or or photooptical system that affects interstate or foreign commerce, but does not include--foreign commerce, but does not include--

(A) any wire or oral communication;(A) any wire or oral communication;(B) any communication made through a tone-only paging (B) any communication made through a tone-only paging device;device;(C) any communication from a tracking device (as defined in (C) any communication from a tracking device (as defined in section 3117 of this title); orsection 3117 of this title); or(D) electronic funds transfer information stored by a financial (D) electronic funds transfer information stored by a financial institution in a communications system used for the institution in a communications system used for the electronic storage and transfer of funds;electronic storage and transfer of funds;


InterceptIntercept– "intercept" means the aural or other "intercept" means the aural or other

acquisition of the contents of any wire, acquisition of the contents of any wire, electronic, or oral communication through the electronic, or oral communication through the use of any electronic, mechanical, or other use of any electronic, mechanical, or other device. 18 U.S.C. 2510(4).device. 18 U.S.C. 2510(4).

– Generally understood to mean that the Generally understood to mean that the acquisition must be contemporaneous with acquisition must be contemporaneous with the transmission.the transmission.

Title III – The Wiretap ActTitle III – The Wiretap ActExceptionsExceptions

Exceptions to Title IIIExceptions to Title III– Interception pursuant to a 18 U.S.C. 2518 court Interception pursuant to a 18 U.S.C. 2518 court

order.order.– The “consent” exception. 18 U.S.C. 2511(2)(c)-(d).The “consent” exception. 18 U.S.C. 2511(2)(c)-(d).– The “provider” exception. 18 U.S.C. 2511(2)(a)(i).The “provider” exception. 18 U.S.C. 2511(2)(a)(i).– The ‘computer trespasser” exception. 18 U.S.C. The ‘computer trespasser” exception. 18 U.S.C.

2511(2)(i).2511(2)(i).– The “extension telephone” exception. 18 U.S.C. The “extension telephone” exception. 18 U.S.C.

2510(5)(a).2510(5)(a).– The “inadvertently obtained criminal evidence” The “inadvertently obtained criminal evidence”

exception. 18 U.S.C. 2511(3)(b)(iv). andexception. 18 U.S.C. 2511(3)(b)(iv). and– The “accessible to the public” exception. 18 U.S.C. The “accessible to the public” exception. 18 U.S.C.

2511(2)(g)(i).2511(2)(g)(i).

Title III – The Wiretap ActTitle III – The Wiretap ActExceptions – Court OrderExceptions – Court Order

Exceptions to Title III -- Interception pursuant to Exceptions to Title III -- Interception pursuant to a 18 U.S.C. 2518 court order.a 18 U.S.C. 2518 court order.– Several formidable requirements for applicationSeveral formidable requirements for application

must show probable cause to believe that the interception must show probable cause to believe that the interception will reveal evidence of a predicate felony offense listed in will reveal evidence of a predicate felony offense listed in section 2516; section 2516;

must show that normal investigative procedures have been must show that normal investigative procedures have been tried and failed, or that they reasonably appear to be tried and failed, or that they reasonably appear to be unlikely to succeed or to be too dangerous to employ;unlikely to succeed or to be too dangerous to employ;

must show probable cause that communication facility is must show probable cause that communication facility is being used in a predicate crime;being used in a predicate crime;

must show that surveillance will be conducted in manner must show that surveillance will be conducted in manner that minimizes interception of communications that do not that minimizes interception of communications that do not relate to predicate crime;relate to predicate crime;

Title III – The Wiretap ActTitle III – The Wiretap ActExceptions -- ConsentExceptions -- Consent

Exceptions to Title III -- The “consent” Exceptions to Title III -- The “consent” exception. 18 U.S.C. 2511(2)(c)-(d).exception. 18 U.S.C. 2511(2)(c)-(d).– where a law enforcement officer or someone acting where a law enforcement officer or someone acting

on behalf of a law enforcement officer is a party to on behalf of a law enforcement officer is a party to the communication or one of the parties to the the communication or one of the parties to the communication has given prior consent;communication has given prior consent;

– where a private person is a party to the where a private person is a party to the communication or one of the parties to the communication or one of the parties to the communication has given prior consent it is not communication has given prior consent it is not unlawful to intercept the communication unless it is unlawful to intercept the communication unless it is done for the purpose of committing any criminal or done for the purpose of committing any criminal or tortious act in violation of any federal or state law.tortious act in violation of any federal or state law.

Title III – The Wiretap ActTitle III – The Wiretap ActExceptions -- ProviderExceptions -- Provider

Exceptions to Title III -- The “provider” Exceptions to Title III -- The “provider” exception. 18 U.S.C. 2511(2)(a)(i).exception. 18 U.S.C. 2511(2)(a)(i).– Employees or agents of a provider of a Employees or agents of a provider of a

communications service may intercept, communications service may intercept, disclose, or use communications in the disclose, or use communications in the normal course of their employment while normal course of their employment while engaged in any activity which is a necessary engaged in any activity which is a necessary incident to the rendition of that service or to incident to the rendition of that service or to the protection of the rights or property of the the protection of the rights or property of the provider of the service. provider of the service.

Title III – The Wiretap ActTitle III – The Wiretap ActExceptions – Trespasser Exceptions – Trespasser

Exceptions to Title III -- The ‘computer trespasser” Exceptions to Title III -- The ‘computer trespasser” exception. 18 U.S.C. 2511(2)(i).exception. 18 U.S.C. 2511(2)(i).– Victims of computer attacks may allow law enforcement Victims of computer attacks may allow law enforcement

to intercept wire or electronic communications of a to intercept wire or electronic communications of a computer trespasser if four requirements are met:computer trespasser if four requirements are met:

The owner/operator of the protected computer must authorize The owner/operator of the protected computer must authorize the interception of the trespasser’s communications;the interception of the trespasser’s communications;

The person who intercepts the communications must be The person who intercepts the communications must be “lawfully engaged in an investigation”; “lawfully engaged in an investigation”;

The person who intercepts the communications must have The person who intercepts the communications must have “reasonable grounds” to believe that the contents of the “reasonable grounds” to believe that the contents of the computer trespasser’s communications will be relevant to the computer trespasser’s communications will be relevant to the investigation;investigation;

The interception should not acquire any communications other The interception should not acquire any communications other than those transmitted to or from the computer trespasser;than those transmitted to or from the computer trespasser;

Title III – The Wiretap ActTitle III – The Wiretap ActExceptions – extension telephoneExceptions – extension telephone

Exceptions to Title III -- The “extension Exceptions to Title III -- The “extension telephone” exception. 18 U.S.C. 2510(5)telephone” exception. 18 U.S.C. 2510(5)(a).(a).– Intended to only allow an employer to monitor Intended to only allow an employer to monitor

communications of an employee to ensure communications of an employee to ensure that the computer provided to the employee that the computer provided to the employee by the employer is used for work-related by the employer is used for work-related purposes;purposes;

Title III – The Wiretap ActTitle III – The Wiretap ActExceptions – inadvertently obtained Exceptions – inadvertently obtained

evidenceevidence

Exceptions to Title III -- The “inadvertently Exceptions to Title III -- The “inadvertently obtained criminal evidence” exception. 18 obtained criminal evidence” exception. 18 U.S.C. 2511(3)(b)(iv).U.S.C. 2511(3)(b)(iv).– Contents of communications may be Contents of communications may be

disclosed to law enforcement where they disclosed to law enforcement where they were inadvertently obtained by the service were inadvertently obtained by the service provider and they appear to pertain to the provider and they appear to pertain to the commission of a crime; commission of a crime;

Title III – The Wiretap ActTitle III – The Wiretap ActExceptions – public infoExceptions – public info

Exceptions to Title III -- The “accessible to Exceptions to Title III -- The “accessible to the public” exception. 18 U.S.C. 2511(2)the public” exception. 18 U.S.C. 2511(2)(g)(i).(g)(i).– This appears to permit the interception of an This appears to permit the interception of an

electronic communication in a public chat electronic communication in a public chat room, a Usenet newsgroup, etc. room, a Usenet newsgroup, etc.

Electronic Surveillance in Electronic Surveillance in Communications NetworksCommunications Networks-- Remedies for violations ---- Remedies for violations --

Remedies for violations of Title III and Remedies for violations of Title III and Pen/Trap StatutePen/Trap Statute– Criminal penalties for violation of Title III – Criminal penalties for violation of Title III –

maximum penalty of five years imprisonment and maximum penalty of five years imprisonment and $250,000 fine. 18 U.S.C. 2511(4);$250,000 fine. 18 U.S.C. 2511(4);

– Civil damages for violation of Title III. 18 U.S.C. Civil damages for violation of Title III. 18 U.S.C. 2520; 2520;

– Criminal penalties for pen/trap violations -- Criminal penalties for pen/trap violations -- maximum penalty of one year imprisonment and maximum penalty of one year imprisonment and $100,000 fine. 18 U.S.C. 3121(d);$100,000 fine. 18 U.S.C. 3121(d);

– Suppression for certain Title III violations. 18 Suppression for certain Title III violations. 18 U.S.C. 2518(10)(a). U.S.C. 2518(10)(a).

Questions?Questions?

Intercepting Communications: Intercepting Communications:

Title III Applied to Title III Applied to On-Line ConductOn-Line Conduct

Sean B. HoarSean B. Hoar

541-465-6792 (voice)541-465-6792 (voice)

[email protected]@usdoj.gov

Documents

Intercepting Communications: Title III Applied to On-Line Conduct Sean B. Hoar [email protected]