1. Legal Aspects of Electronic Privacy
CSCI 327

2. Workplace Privacy
you have essentially no right to privacy in the workplace

3. US v EU EU US privacy is a human right
laws broadly protect personal information US
privacy is insured via market pressure and industry self regulation
targeted regulations in specific domains
Cyberethics by Richard Spinello

4. European Union Directive on Privacy
Adopted by EU Parliament in 1995
Article 1:
"to protect fundamental rights and freedom of natural persons, and in particular the right to privacy with respect to the processing of personal data."
Article 6:
data must be:
processed fairly and lawfully
collected for specified, explicit, and legitimate purposes
accurate and kept up to date
Article 7:
only process data when data subject has provided his/her consent
Cyberethics by Richard Spinello

5. US Privacy Laws Fair Credit Reporting Act - 1970 FERPA - 1974
credit reports only shared
by written request by the individual
by court order
for legitimate 3rd party uses
FERPA
Cable Communication Policy Act
cable companies can not collect or disseminate info about your viewing habits
Video Privacy Protection Act
video stores cannot disclose the list of videos you rented
Driver's Privacy Protection Act
a state cannot sell your driver's license info
Children's Online Privacy Protection Act
web sites cannot collect data on children under age 13
HIPPA
Cyberethics by Richard Spinello

6. Is your right to privacy protected by the U.S. Constitution?
No. Well, maybe
1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or …
14th Amendment
No State shall deprive any person of life, liberty, or property, without due process of law.
9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

7. 4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

8. Olmstead v. United States
Olmstead ran a bootleg operation
prohibition officers tapped his phone via the basement without a warrant
they did not enter his apartment
in 1928, Supreme Court ruled Olmstead's rights were not violated

9. Federal Communications Act of 1934
illegal to intercept and reveal wire communications without a warrant
FBI still wiretapped phones during WWII for national security purposes

10. Katz v United States
without a warrant, police placed a bug on the outside of a public phone booth used by Katz to make illegal bets
In 1967, the US Supreme Court ruled Katz's rights were violated.
Katz reasonably thought his conversation was private, hence the recording was an illegal search and seizure
the 4th amendment protects people, not places
the 4th amendment governs seizure of tangible items, as well as recording of oral statements

11. "reasonable expectation of privacy"
what society recognizes as reasonable, not your idea of reasonable
Reasonable:
your home or hotel room
public restroom
Unreasonable:
garbage left on street
normal aerial surveillance
smells coming from your car

12. Wiretaps … 1968 - Crime Control and Safer Streets Act
wiretap warrants require probable cause
annual report of wiretaps submitted to congress
US Supreme Court
warrantless wiretaps illegal, even regarding national security
Communication Assistance for Law Enforcement Act
telecom companies must design their digital systems to be tap-able

13. Electronic Communications Privacy Act
enacted in 1986
ECPA was an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which was primarily designed to prevent unauthorized government access to private electronic communications.
Title I of ECPA protects electronic communications while in transit.
Title II of the ECPA, protects messages stored on computers.
Title III prohibits the use of pen register and/or trap and trace devices to record dialing, routing, addressing, and signaling information used in the process of transmitting wire or electronic communications.

14. NSA and FISA
Starting during WWII, the Signal Security Agency monitored all telegrams entering and leaving the US
The program was later used to
fight organized crime
war on drugs
monitor anti-Vietnam war groups
NSA ended that program in 1975
Foreign Intelligence Surveillance Act of 1978 (FISA)
warrant required with 72 hours if "US person" involved
amended by Patriot Act in 2001 to include terrorism
warrantless wiretaps of US citizens ended in 2007
replaced by Protect America Act of 2007, which expired
replaced by FISA Amendments Act of 2008
granted immunity to telecoms that had helped the NSA

15. Patriot Act
Uniting and Strengthening America by
Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT)
allows officials to track s without showing probable cause
allows roving surveillance for intelligence (not just crime investigation), tapped device does not have to be owned by the suspect
search warrants no longer have to be served
warrants for records do not require probable cause …

16. Patriot Act Contents Numerous amendments to existing laws E.g. FERPA
Universities may supply student info to law enforcement without student consent or notification
requires warrant related to terrorism
Monitoring of Foreign Students

17. Total Information Awareness
In January 2002, DARPA created the Information Awareness Office (IAO)
In February 2003, IAO began the Total Information Awareness program
program director was Admiral Poindexter, who had been convicted of lying to Congress and destroying documents during Iran-Contra

18. US v Jones January 23, 2012 By a vote of 9 to 0:
"the Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment."
The justices split 5-4 on the reasoning and the breadth of the ruling in opinions written by justices Scalia and Alito:
Scalia argued that the appropriate ground for resolving Jones' case centered around the government's physical trespass on a private citizen's "effect" (his car),
Alito argued that the majority opinion leaves open too many questions by avoiding the inevitable reasonable expectation of privacy inquiry that other cases will surely present. Furthermore, Alito predicted that the narrow grounds used for deciding the case may not apply to many of the future Fourth Amendment cases, where the police need not commit a physical trespass to use electronic surveillance to gather information.

19. BCA agreed to FBI terms on secret cellphone tracking
By Abby Simons -- (Minneapolis MN) Star Tribune -- December 5, 2014
Minnesota’s top law enforcement agency agreed to terms set by the FBI to resist any attempts by the public to gain information about controversial cellphone-tracking technology, according to documents obtained by the Star Tribune. …
In a heavily redacted 2012 contract signed by then-Assistant BCA Superintendent David Bjerga, the agency agreed to “immediately notify the FBI” of any request for information concerning the device’s manufacturer, Florida- based Harris Corp., under the Freedom of Information Act (FOIA), or under judicial, administrative or legislative requests.
Any court orders directing the BCA to reveal information about Harris Corp. “will immediately be provided to the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise,” the contract reads.

20. Based on Vague Tip, the Feds can Surveil Anyone
by Cora Currier, The Intercept, Jan 31,
At its lowest level of investigative activity, on the basis of vague tips or broad intelligence interests, the FBI can follow people with airplanes, examine travel records, and analyze links between , phone, and other records collected by intelligence agencies.
Assessments allow agents to look into tips or leads that don’t meet the standard for opening an investigation, which requires specific information or allegations of wrongdoing — an “articulable factual basis” for suspicion, as FBI rules put it. In an assessment, by contrast, an agent just needs to give an “authorized purpose” for their actions. …
When assessments were made an official category in the last months of the George W. Bush administration, civil liberties advocates warned that the change eroded limits imposed on the bureau after the abuses of J. Edgar Hoover’s FBI came to light in congressional investigations in the 1970s. Those limits set high standards for the FBI’s investigations, requiring them to be tied to evidence of wrongdoing and adding layers of oversight. Advocates now say that the standard for opening an assessment is just too low, allowing for enormous amounts of information to be collected and retained even when nothing turns up.

21. Question Your Analysis?
does the government have too much or too little ability to conduct surveillance