Laws Governing Police Surveillance Constitutional Law 12th Edition The University of Adelaide, School of Computer Science 4 February 2019 Chapter 5 Laws Governing Police Surveillance Chapter 2 — Instructions: Language of the Computer 1
Copyright © 2010, Elsevier Inc. All rights Reserved. Introduction To safeguard the privacy of innocent persons, the interception of wire or oral communications . . . should be allowed only when authorized by a court [and] with assurances that the interception is justified and that the information obtained thereby will not be misused. —Congressional Findings, Omnibus Crime Control and Safe Streets Act of 1968 Copyright © 2010, Elsevier Inc. All rights Reserved.
Copyright © 2010, Elsevier Inc. All rights Reserved. Threshold Question Does the activity in question constitute a search? if yes, then it will require a: warrant interception order other form of judicial approval if no, then: police may conduct their investigations, without concern for the Fourth Amendment there may be statutory requirements Copyright © 2010, Elsevier Inc. All rights Reserved.
Supreme Court Decisions Olmstead v. United States (1928) decided that wiretapping did not constitute a search not a violation of the Fourth Amendment Katz v. United States (1967) overruled Olmstead “The Fourth Amendment protects people, not places” warrantless wiretapping violates the Fourth Amendment Copyright © 2010, Elsevier Inc. All rights Reserved.
Copyright © 2010, Elsevier Inc. All rights Reserved. Legislation Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968): wiretap order is required amended to provide protection for electronic communication Copyright © 2010, Elsevier Inc. All rights Reserved.
Non-Assisted Surveillance How the Fourth Amendment applies: exposed to public view not protected police, where lawfully present, may use natural senses home heightened protection warrantless surveillance may not be conducted from inside curtilage open field carries no protection information voluntarily disclosed to third party no protection Copyright © 2010, Elsevier Inc. All rights Reserved.
Copyright © 2010, Elsevier Inc. All rights Reserved. Hoffa Doctrine The Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Copyright © 2010, Elsevier Inc. All rights Reserved.
Copyright © 2010, Elsevier Inc. All rights Reserved. Electronic Tracking How the Fourth Amendment applies: public movements “free zone” activity no protection objects inside a home or other location protected by the Fourth Amendment: search warrant required Copyright © 2010, Elsevier Inc. All rights Reserved.
Copyright © 2010, Elsevier Inc. All rights Reserved. Detection Devices How the Fourth Amendment applies: devices capable of revealing only the presence of contraband no protection metal detectors and X-ray scanning machines compliance with administrative search exception to warrant requirement individualized suspicion thermal sensors aimed at home search warrant Copyright © 2010, Elsevier Inc. All rights Reserved.
Copyright © 2010, Elsevier Inc. All rights Reserved. Wiretap Act a wiretap order is necessary to intercept a protected communication unless one of the parties consents interception occurs: when a device is used to acquire access to the contents of a protected communication in the course of its transmission Copyright © 2010, Elsevier Inc. All rights Reserved.
What the Wiretap Act Protects wire (communications containing the human voice that travel through wires at some point in transmission) oral (communications carried by sound waves) electronic (data transmitted over a wide range of mediums) Copyright © 2010, Elsevier Inc. All rights Reserved.
What the Wiretap Act Limits the crimes for which wiretap orders may be issued the duration of wiretap orders to a maximum of: 30 days attainment of objective fresh application required to extend disclosure and use of communications intercepted to: furtherance of investigation national defense and security giving testimony in court Copyright © 2010, Elsevier Inc. All rights Reserved.
What the Wiretap Act Requires approval by a high-ranking official within the Justice Department before the application can be submitted to the court proof that traditional investigative techniques: have been tried and failed appear unlikely to succeed are too dangerous to try establishment of probable cause that wiretap orders be executed so as to minimize intrusions into communications not related to the investigation Copyright © 2010, Elsevier Inc. All rights Reserved.
Wiretap Act Does Not Protect conversations overheard naturally targets who lack a reasonable expectation that communication is not being intercepted a party consents to interception Copyright © 2010, Elsevier Inc. All rights Reserved.
E-mail, Voice/Text Messages Wiretap Act protects interception of e-mail during the transmission stage only Stored Wire and Electronic Communications and Transactional Records Act protects e-mail after the message has reached its intended destination also protects voice mail, text messages, and transactional records provides a lower standard of protection than the Wiretap Act Copyright © 2010, Elsevier Inc. All rights Reserved.
Copyright © 2010, Elsevier Inc. All rights Reserved. FISA electronic surveillance conducted inside the United States for the purpose of gathering foreign intelligence surveillance orders require probable cause that: the target is a foreign power the target is an agent of a foreign power the target is a member of an international terrorist organization surveillance order not required for international communications between persons inside the United States and persons overseas if the target is the person overseas Copyright © 2010, Elsevier Inc. All rights Reserved.