Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

John S. Denker jsd at monmouth.com
Wed Mar 5 20:03:40 EST 2003


Steven M. Bellovin wrote:
> The (U.S.) ban on wiretapping without judicial permission is rooted
> in a Supreme Court decision, Katz v. United States, 389 U.S. 347
> (1967) 
> (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=389&invol=347)
>  which held that a wiretap is a search which thus required a warrant.

> I don't think there's ever been any doubt that seizing a stored
> message required a warrant. But in an old case (OLMSTEAD v. U.S., 277
> U.S. 438 (1928)) the Court had held that the Fourth Amendment only
> protected material things, and therefore *not* conversations
> monitored via a wiretap. That decision was overturned in Katz.

Well, there could have been one other slight source
of doubt, namely the theory that communications "with
no expectation of privacy" are not private and intercepting
them is free-for-all.  Talking out loud in a public
place, for instance.  US laws going back to 1934 if not
earlier made it clear that most wired transmissions
were to be considered private.

Wireless is a horse of a different color.  IANAL but
the last time I looked, there was no federal law
against intercepting most wireless signals, but you
were (generally) not allowed to disclose the contents
to anyone else.  I don't know what that means in
practice.  Perhaps I can act on the information, so
long as I don't "disclose" it?  Plus there is a welter
of state laws.  And cellphone transmissions are a more-
protected special case.

===================

In the communication industry (e.g. for tariff purposes)
the usual test for whether something is a "stored"
message is whether the storage adds value to the service.
The delay that occurs in a store-and-forward network does
not make it a "storage" service.  This criterion has been
very closely examined in connection with fly-by-night
voice-over-IP telephony schemes, most of which are competitive
only if they don't have to pay the tariffs that phone
companies have to pay.  The tariffs distinguish IP from
telephony on the theory that IP is used to access "stored"
data -- but if IP is used for telephony that theory goes
out the window.  Big mess.

===================

The reason why wiretap warrants are (were?) harder
to get is because they are insidious:  If somebody
comes to my house to sieze my papers I generally
know about it.  But if somebody siezes my bits
while they are entrusted to some third party's
wire, how am I supposed to know?

For this reason and others, I very much doubt that
Congress intended different treatment for
  -- data in transit on a wire versus
  -- data in transit in a store-and-forward switch.
The intention, I assume, was a distinction between
data in transit and data truly stored at the
endpoint, under control of the end user.

We should want the standards for siezing data in
transit to be just as high as the standards for
a "sneak and peek" search warrant, considerably higher
than for an ordinary above-board search warrant.

Since the Konop case didn't involve warrants or
government searches, I doubt anything that judge says
will have much effect on this issue.  I think we
should be much more worried about the USA PATRIOT
act and the son-of-PATRIOT act that Ashcroft's
aides say isn't being drafted.


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