Monday, February 20, 2006

Presentation: Expectation of Privacy in Internet Communications

First of all, please, completely ignore my prior post for my presentation. I have changed my topic because my first one was a bad idea.

I will now be writing about the constitutional expectation of privacy in our internet communications. A brief overview of the law is this: An expectation of privacy has generally not been found to exist with regard to subscriber info given to ISP's, records of internet usage, or info about communications made on websites. With a few exceptions, courts have generally not found an expectation of privacy to exist in emails or electronic chat-room communications. A few issues that have recently been in the news deal with different servers collecting users' search terms and these being turned over to government agencies. Also, the NSA surveillance is an issue that would fall under this topic.

The internet has provided a new way for people to communicate and our laws have not quite caught up with modern technology. As different technologies emerge, society must decide how much privacy will be given to these new forms of communication. One commentators said: "many email users expect privacy in their messages, but the U.S. Constitution does not seem to reflect this expectation...according to Fourth Amendment jurisprudence, traditional privacy protections may not apply to email."

Courts have been applying the standard enunciated in Katz v. United States when deciding whether an individual has an expectation of privacy in internet communications. This test basically states that there must be a subjective expectation of privacy that society is willing to accept as reasonable. It's a two part test with an objective and subjective prong. The problem occurs in the fact that this case stated that it is unreasonable for one to expect privacy in information etc. that he/she has made available to the public. Because of the way that the internet works, most communications and information is available to at least one third party, the ISP or network administrator (not to mention the many hackers capable of gaining access), which could mean that all internet communication will be held to have no privacy protection.

I think that we need to come up with new law and policy to deal with this new technology. I believe that an application of the old law is not warranted when it comes to internet communications because this technology is unlike the technology of the past. One source of law exists, the Electronic Communications Privacy Act, but this Act does not deal with the issue of whether there is a reasonable expectation of privacy in such communications. No court has yet announced that the ECPA creates this expectation either. Furthermore, the ECPA offers little protection. Consider this: Title II requires a warrant to obtain stored email for up to 180 days (only 6 months), after that, no warrant is necessary. Good thing the ECPA gives full protection (always requires a warrant) for email that is in transit. Thus, we have full privacy rights for the few milliseconds that our emails are actually in transit. This is not the type of protection I think that most of us expect.

The issues that I would like to discuss in class:

1. Is Katz v. U.S. and traditional 4th Amendment jurisprudence capable of dealing with internet communications or should a new standard be devised? If so, any suggestions on what type of standards?

2. Should the fact that ISP's etc. have access to stored data and communications of their users give them the legal right to turn such data over to law enforcement or do internet users' have a reasonable expectation of privacy in their communications? Perhaps another related issue, one that we discussed a little in class, should these ISP's etc. even be allowed to keep such extensive records of the content of the users' communications?

3. One prong of the Katz test is the subjective expectation of privacy, does the fact that most people do not understand how the internet actually works allow for a valid argument of a subjective expectation of privacy?

4. With programs such as Carnivore and the current NSA surveillance, the government is freely accessing internet users' emails, search terms etc. without warrants, is Congress or the Court best equipped to handle this situation in fashioning the proper legal rules? There is a lot of fear that Congress works to slow to keep up with modern technology.

18 Comments:

Blogger DSomogy said...

My idea builds off Aaron's in-class comment - as to probable cause, would an after-the-fact judicial review satisfy a probable cause requirement? Then, an exclusionary rule would let it evidence supported by probable cause, and exclude anything found where there is no after the fact p.c.

2:38 PM  
Blogger duffee said...

I think the Internet poses new challenges that are not applicable when we think about regular mail or telephone communications. Unlike those communications, you often times don't know exactly where your the information you send goes, and users are aware of this. While this fact may not have much of an effect on your analysis, I think it at least changes the privacy calculus since people using the Internet know that the "online world" is so much different from the "real world" and approach the two very differently. Therefore, it seems to me, that it may be hard to "legislate" an expectation of privacy when the people using the Internet probably do not--and cannot--really possess a reasonable expectation of privacy given the nature of the medium. If people really don't have an expectation of privacy, why should we seek to create one?

2:41 PM  
Blogger DSomogy said...

A follow-up: I don't like my idea of operating under a legal fiction that would restore our expectation of privacy by willy-nilly saying we have gotten our eop back.

2:51 PM  
Blogger Syed Ali said...

"If people really don't have an expectation of privacy, why should we seek to create one?"

First of all, I disagree if you are arguing that because the internet works differently, we should not have the same amount of privacy. It is still a means of communication and is quickly becoming a leading means of communication. I think that there is the same privacy interests in our communication regardless of the medium.

I am also not sure exactly what you mean by people don't have an expectation of privacy so why create one? Are you saying that they don't think they have privacy or that they don't want that privacy? I think that many people want the privacy. I know I don't want to know that there is no privacy in my private emails to friends and most would not want their emails to their significant others being read. Just because you don't know where your communications go exactly, does not mean that you don't want it to remain private. When I write an email, I don't know what channels it takes to get to the receivers inbox, but I hope that only he reads this email. If he shares the contents, well that is a chance I take, but I don't want to know that anyone can legally snag the email and read the contents, especially the government.

I think we should legislate this privacy protection because it is in the interests of society. This does not hinder law enforcement any more than our privacy rights in other means of communications do. Law enforcement can still wiretap, run surveillance etc., but I think it is in the interests of a free society to make law enforcement have probable cause when it does so.

I don't want my communication to a friend to be less protected from the government because I use email as opposed to snail mail. If the communication is the exact same, why provide less protection?

4:32 PM  
Blogger joemama said...

While I believe that we share the same general goals of Internet security/privacy, I still feel that the current law gives us more protection than you recognize. Adopting this position is also advantageous, because making the argument or proposal for stricter legislation to protect these fundamental rights is easier when it doesn't appear so radical. In other words, it's a lot easier to get someone to give a little than give a lot. If Congress believes that we currently have some degree of Internet protection vis-a-vis Katz, Kyllo, or Ciraolo, etc., but that the current laws allow for some ambiguity, then it should be easier to persuade them to enact legislation that will resolve some of the ambiguity.

One suggestion I would also offer is not to mix the issues of Internet privacy generally, with recent NSA activity. There are many reasons for this, but the most important one should be that opposition to laws granting airtight Internet privacy to everybody except terrorists would be limited. Of course "we" all know that the government doesn't have the greatest idea of who the terrorists are, but that is a separate battle. In other words, fight for everyone's privacy now; then later challenge the government's attempts to circumvent constitutional and criminal procedure. It's important to attack the issues in that order, because according to you, we are currently in a nebulous state of uncertainty when it comes to the Internet. We can't say what's outrageous until we first identify what's "normal."

Sorry if I seemed to be on a soapbox. I think your topic is solid, and I look forward to reading your paper.

4:40 PM  
Blogger Syed Ali said...

I like what you said, but I don't think the position is radical either way. The only reason that the traditional 4th Amendment jurisprudence does not offer much protection is because technology has changed in unforeseen ways. Not because they don't want more privacy protection. That is also why the SCA was enacted, so Congress has acknowledged this problem.

Also, a few people have noted that they think there is more protection under a 4th Amendment analysis than I recognize. I would like some comments that back this assertion up. I have done quite a lot of research, and most scholars in this area agree with my position. I have yet to find one that disagrees. Also, anyone who writes a comment dealing with this, should take a look at the article that D. Somogy posted today before commenting.

6:53 PM  
Blogger duffee said...

Syed,

I agree that people want privacy in their internet communications and that there are good reasons why we should protect those communications. My only point was that people have lower/no expectations of privacy online not only because they know that the law does not currently protect them but because they approach the internet differently than they approach other forms of communication, like telephone and U.S. Mail.

I just thought I would offer an argument that you might want to consider and respond to in writing your paper, namely, why we should legislate a right to privacy when the very structure of the internet changes people's approaches to privacy in the online world. I think you have some very good responses to that argument.

7:15 AM  
Blogger joemama said...

Syed, after reading the article, I definitely see where you're coming from. I still believe in my original position, though. Maybe I can refine it a little bit, tailored to the points raised in the article:

The article points out that the gov't still needs a warrant to come into your home computer and gain access to its contents. This is consistent with Katz. Also, the article notes that gaining access to webmail content is much easier, but still requires some kind of court order. While this deviates from Katz (maybe) it's not too far off--when factoring the whole "subjective expectation" aspect of the test. It's reasonable for people to expect less privacy on hotmail or gmail than on their sbcglobal dsl email, or that from their employer's servers.

The pink elephant, however, is that the gov't is probably engaging in other types of "intelligence gathering" not contained in one of the two scenarios--i.e., hacking into people's computers. This is an entirely different situation, and this is where I believe the most action needs to be taken. It should be reasonable for someone to have an expectation of privacy in their own computers, or some kind of security that nobody is sneaking in through a firewall and spying on their personal things. This is at the innermost core of the Fourth Amendment.

9:56 AM  
Blogger Syed Ali said...

"It's reasonable for people to expect less privacy on hotmail or gmail than on their sbcglobal dsl email, or that from their employer's servers."

I really don't know if I agree or disagree with this statement, but I thought I would point out that we actually have no privacy protections in our emails from our employer's servers just as we don't have any in our university accounts. I don't know about the rest of you, but I use my OSU account for much of my personal communication as well. I would like to know that my communications were not being turned over to the government simply because I have a Muslim name.

10:39 AM  
Blogger joemama said...

I concur.

11:12 AM  
Blogger kkoehler4070 said...

I was trying to figure out why I have a lower expectation of privacy in the Internet. The only thing I could come up with was that I would equate sending an e-mail more to sending a postcard then sending a letter. To read the letter, a person would have to open the letter and at that point, the person has tampered with mail. The text on a postcard is readable without any action which would not violate any laws (at least I don't think it would). Similar to the postcard, e-mail messages (assuming no encryption) are simply plain text being sent over the Internet. Any person on the path between the sender and receiver can read the e-mail by capturing the network activity.

Perhaps one way to create privacy on the Internet is to encourage the software industry to implement encryption techniques. Encrypting e-mail would change the message from a "postcard" to a "sealed letter". Of course this wouldn't solve all Internet privacy problems. It would also create practical problems in making sure your receipiants could read your messages.

5:38 PM  
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