My very first blog post addressed a precedent-setting decision of the Central District of California holding that federal agents could not conduct a border search of the private and personal information stored on a traveler’s computer hard drive or electronic storage devices without reasonable suspicion. Eighteen months later, the Ninth Circuit has squarely reversed that decision. In a short opinion filed April 21, 2008, Judge O’Scannlain wrote in U.S. v. Arnold, No. 06-50581, that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” As far as the Ninth Circuit is concerned, for purposes of border searches under the Fourth Amendment, laptops and other electronic storage devices are not so much like a home or the human mind – they are more akin to luggage or a car.
Fourth Amendment
Ninth Circuit Applies Pen Register and Mail Principles to Warrantless Monitoring of Internet Traffic
By Proskauer Rose on
In a novel case, the Ninth Circuit ruled on July 6, as amended July 25, that government surveillance of Internet Protocol (“IP”) addresses visited, to/from addresses of emails, and the total volume of information sent to or from an email account does not violate the Fourth Amendment. United States v. Forrester, No. 05-50410, — F.3d — (9th Cir. July 6, 2007). The ruling does not affect the requirement that the government obtain a search warrant before searching the actual content of that Internet traffic.
The defendant in United States v. Forrester, Dennis Louis Alba, was charged and convicted of various federal offenses relating to the operation of an Ecstasy-manufacturing laboratory. During the government’s investigation of Alba, it installed a device on Alba’s computer that gathered the IP addresses of the websites he visited, the to/from addresses of his emails, and the total volume of information sent to or from his email account. In his appeal, Alba contended that the surveillance constituted a warrantless search in violation of the Fourth Amendment and fell outside of the then-applicable pen register statute. The Ninth Circuit addressed the merits of Alba’s first contention, but found it unnecessary to address the second.
The Ninth Circuit applied the Supreme Court’s analysis in Smith v. Maryland, 442 U.S. 735 (1979), in which the Court held that a pen register does not constitute a Fourth Amendment search. The Court so held because pen registers merely track phone numbers dialed and do not reveal the actual contents of conversations. Cf. Katz v. United States, 289 U.S. 347 (1967) (holding that one can have legitimate expectation of privacy in the contents of one’s phone conversations). The Ninth Circuit reasoned that the government’s surveillance of Alba’s activity was “constitutionally indistinguishable” from surveillance via a pen register because accessing IP addresses involves the transmission and receipt of a unique identifier, which does not reveal actual content, via the third-party equipment of an internet service provider. An Internet user therefore does not have a legitimate expectation of privacy in the IP addresses he or she accesses.
Expectation of Privacy in Student Computer Persists in the Absence of Announced Monitoring Policy
By Proskauer Rose on
Last week, a panel of the Ninth Circuit Court of Appeals held that in the absence of an announced monitoring policy, the mere act of connecting a computer to a network does not extinguish a user’s reasonable expectation of privacy, under the Fourth Amendment, in the contents of his or her computer. The panel announced its holding in United States v. Jerome T. Heckenkamp, Nos. 05-10322 and 05-10323 (9th Cir. April 5, 2007), wherein it upheld the introduction of evidence obtained by University of Wisconsin employees through remote and direct access of a student computer attached to a university network. Although it recognized the defendant’s reasonable expectation of privacy, the panel upheld the lower court’s admission of evidence under the judicially-created “special needs” exception to the Fourth Amendment because the alleged hacking posed an immediate threat to the university network and the searches were not conducted for a law enforcement purpose.
Welcome To The California Privacy Law Blog
By Proskauer Rose on
Welcome to the LACBA California Privacy Law blog. This blog will provide a forum for summary and discussion of recent developments in California privacy law. California was the first state in the nation to require operators of commercial websites or online services to post privacy policies, and was the first state to pass legislation requiring notification to customers for security breaches of personal information. California continues to pioneer new legislation and policy to address growing concerns regarding individual privacy rights in the information age. The last few weeks have seen the usual flurry of activity on the privacy front in California.[1]
Recent California Privacy Law Developments
In the wake of the Hewlett-Packard pretexting revelations, Attorney General Bill Lockyer filed criminal fraud and conspiracy charges in Santa Clara County against former HP chairman Patricia Dunn and four others. Also, Governor Schwarzenegger signed a bill (S.B. 202), effective January 1, 2007, prohibiting the sale or purchase of a consumer’s phone records without the consumer’s written consent and the practice of obtaining such records by fraud or deceit.
In the same time period, the California Supreme Court refused to reconsider or modify its ruling in Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (2006), which held that out-of-state companies are subject to California law requiring two-party consent for the recording of telephone conversations made to or received from California. For more on Kearney, click here.