Electronic Surveillance &
Constitutional/Legislative
Protections
Eric Vos
Federal Defender – District of
Puerto Rico
Eric_Vos@ao.uscourts.gov
What is Electronic
Surveillance?
Not?
What We Will Cover
Cell Phone Site
Location (CSL)
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and
Trace
Pole Cameras
Question #1
Which of The Following Areas
Enjoys Constitutional 4th
Amendment Protections?
A.
B.
C.
D.
E.
Cell Phone Site Location
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and Trace
Pole Cameras
Answer
Which of The Following Areas
Enjoys Constitutional 4th
Amendment Protections?
A.
B.
C.
D.
E.
Cell Phone Site Location
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and Trace
Pole Cameras
Where Do Our
Protections Come
From?
Constitutional
Amendment
and/or
Statutory
th
4
4th Amendment Provides Us With
Little Protection & Privacy
Comes from Statute.
Example of Statutory Protections
Where no 4th Amendment Rights Exist
Pen/Trap (recorded out/in)
Telephone Numbers
 Smith v. Maryland, 442 US 735 (1979)
No judicial review required to record
telephone #’s.
 Congress came up with some minimal
protections.
Filling The Constitutional
Void with Statutory
Protections
Pen/Trap Telephone Numbers
if “information likely to be obtained”
• legislation
- no person
install or use a
will be relevant
tomay
an on-going
pen or trap without getting a court order.
criminal investigation.
•
Court needs to find that “information
likely to be obtained” will be relevant to
an on-going criminal investigation.
≠ Probable Cause!!
Wiretaps Require
Super-Warrant Not
Only Probable Cause
• Cell Phone Site
Location (CSL)
• Wiretaps
• “Slap On” GPS Trackers
• Pen Registers/Trap and
Trace
• Pole Cameras
Cell Phone Site Location-CSL
How?:
Pings & GPS
1. when call in
2. call out &
3. when idle – every 2 seconds
Period Covered?:
1.
Real-Time
2.
Historic Records (limited to
calls
made/received For Now!)
CSL For Who?:
Individual # or Data Dump
Question #2
What is a Data Dump?
A. When discovery includes more than a
terabyte of digital data?
B. The cell phone data covers in excess on 6
months of phone activity?
C. Digital discovery is provided in a ad hoc
& random basis?
D. Pen/Trap data includes multiple cell
phones for each given tower/cell?
E. All of the above?
Tracking One Telephone Location Over Time
Data Dump
1
3
2
Two Types of Data:
1. Real-Time &
2. Historical
1. Real-Time (live tracking)
1. Phone Company Personnel
2. Internet Portal
3. Stingray
2. Historic Records
1. Individual phone location when made
and received calls.
2. All Phones who made and received
calls which were located in Vicinity
of Tower (Data Dumps)
How Does Law Enforcement LEGALLY Get
Data?
1.
They Simply Ask For It
Carrier Delivers or Gives Access W/O Warrant
or Order.
2. Ex Parte Request for Order – Based on?
“specific and articulable facts” that the phone has/had a
connection to the investigation.
3.
Order Not a Warrant! Search Warrant is Based on PC. Lower
Standard.
How Long Does The Data Remain?
Call
Records
Cell Towers Text
Used
Message
Details
Text
Message
Content
Internet
Session
Information
Web
Sites
Visited
Verizon
At Least
1 Year
At Least 1
Year
At Least 1
Year
3-5 days
Up to 1 Year
Up to 90
Days
AT&T
5-7 Years Since July
2008
5-7 Years
Not
Retained
Up to 72 Hrs.
Up to 72
Hrs.
Sprint
8-24
Months
8-24
Months
Up to 18
Months
Not
Retained
Up to 60
Days
Up to 60
Days
T-Mobile
5 Years
Officially,
4-6 Mos.
Really > yr.
5 Years
Not
Retained
Not Retained
Not
Retained
Historical & Real Time CSL!
No 4th Amendment Rights
1. Business Record! No expectation
of privacy because we know they
are collecting it.
2. Done by Service Provider in Normal
Course of Business.
3. Provider Not Required by
Government to Keep These Records.
Other Ways Location of a
particular phone obtained when
idle & real-time needing
little to no scrutiny
1. Exigent Circumstances as in
kidnapping
2. 911 Call Tracking
3. Geo-Tags: Photos
4. Location Services
Possible Attacks on CSL
Get copy of Order/Warrant and argue
deficiencies.
Get copy of User Agreement between
customer and carrier. Is there a
promise of privacy?
Not a business record and thus,
expectation of privacy is
appropriate. Is there a
conceivable business use?
Other/Future Possible Attacks on
CSL
Quick Internet/Google Search
Easy Search = Privacy + Rights
+ (technology)
Example: privacy rights cell
phone tracking sting ray or
stingray
Getting the data for your
client!
Immediately Try and Preserve!
How Long Does The Data Remain?
Call
Records
Cell Towers Text
Used
Message
Details
Text
Message
Content
Internet
Session
Information
Web
Sites
Visited
Verizon
At Least
1 Year
At Least 1
Year
At Least 1
Year
3-5 days
Up to 1 Year
Up to 90
Days
AT&T
5-7 Years Since July
2008
5-7 Years
Not
Retained
Up to 72 Hrs.
Up to 72
Hrs.
Sprint
8-24
Months
8-24
Months
Up to 18
Months
Not
Retained
Up to 60
Days
Up to 60
Days
T-Mobile
5 Years
Officially,
4-6 Mos.
Really > yr.
5 Years
Not
Retained
Not Retained
Not
Retained
Getting the data for your client!
Discovery Letter to Prosecutor?
Getting the data for your
client from CARRIERS!
Order per Rule 17c
Avoid Subpoena
1.
2.
3.
4.
5.
6.
Getting the data for your
client concerning who?
Cooperators
Co-Defendants
Police
Investigators
Witnesses
Client
Getting the data for your
client!
17C Orders are Ex Parte
Learning Experience for Judge
Good chance to educate court
Be careful what you wish for…
Getting the data for your client!
General or Specific
When Using 17C Order?
Dates?
SMS Records?
Location Records?
Call Records?
Carriers Ignore General or Incorrect
Requests
Get an EXPERT!!!
Cell Phone Site
Location
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and
Trace
Pole Cameras
Wire Tapping
The federal wiretap statute 1968 or Title III or the
Wiretap Act
4th Amendment on Steroids!
Requires government to get a wiretap
order = super-warrant
Harder to get than a regular search warrant
because violates target and people they speak to.
What is a Wire Tap?
1. Oral communication
2. Wire Communication
3. Electronic
Communication
What is a Wire Tap?
Oral communication:
•face-to-face
•in-person talking
•uttered
•reasonable expectation that your
conversation won't be
recorded
•Even your own microphones
What is a Wire Tap?
Wire Communication:
•Voice communication that is transmitted over the
phone company's wires, a cellular network, or the
Internet.
•You don't need to have a reasonable expectation of
privacy for the statute to protect you.
•Wiretap order needed to tap any phone calls —
landline, cellphone, or Internet-based.
.
What is a Wire Tap?
Electronic Communication:
•Email
• instant messaging
•texting
•Websurfing
•faxes
•messages sent with digital pagers
•Like with wire communications, you don't need
to have a reasonable expectation of privacy
•If you broadcast, publicly, it isn’t a wiretap
What is a Wire Tap?
1. Oral
2. Wire
3. Electronic
Communication
Don’t Be a Wire-Tapper!
Don’t Tap into:
FaceBook
Messages
Emails
Instant Messages
NOTHING
Get Court Approval
Cell Phone Site
Location
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and
Trace
Pole Cameras
GPS
Slap On!
Big Case?
In United States v. Jones (at times known as
United States v. Maynard), FBI agents
planted a GPS device on a car while it was
on private property and then used it to track
the position of the automobile every ten
seconds for a full month, all without
securing a search warrant.
GPS
Slap On!
United States v. Jones
Device was not original to car!
No Solice!
Cell Phone Site
Location
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and
Trace
Pole Cameras
Pen/Trap (record out/in)
Telephone Numbers
4th Amendment No Protection
but Gained from Statutory
Smith v. Maryland, 442 US 735 (1979) – no
expectation of privacy in called telephone or
received telephone #’s. Law enforcement,
with no judicial review, could record
telephone #’s. As a result, Congress came up
with some minimal protections.
Filling The Constitutional Void with
Statutory Protections
Pen/Trap Telephone Numbers
•
•
Pen/Trap Statute + Stored Communications = Electronic
Communications Privacy Act of 1986 (ECPA) & complimented
by Communications Assistance for Law Enforcement Act.
if “information likely to be obtained”
will be relevant to an on-going
legislation says that no person may install or use a pen or trap
criminal
investigation.
without getting
a court order
under 18 USC § 3121-3127 or
FISA.
•
ORDER to collect pen/trap data if “information likely to be
obtained” will be relevant to an on-going criminal
investigation.
≠ Probable Cause!!
You Can Get
Pen/Trap Telephone
Numbers
Subpoena and/or Rule 17C Order
Cell Phone Site
Location
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and
Trace
Pole Cameras
Pole Camera
US v. Anderson Bagshaw, 509
Fed. Appx, 396 (6th cir. 2012)
•Pole Cameras Were Placed Just for this Def.
•24 days/500 Hrs. of video
•Could see husband naked in some shots
•Zoom, pan, focus on Def’s Curtilage
•Stream live video via Internet
•Hence Unconstitutional
•Yet, Harmless
Poll Question #3
U.S. v. Anderson Bagshaw
involved?
A.
B.
C.
D.
E.
Kidnapping?
Drug Distribution Point?
Raising Alpacas?
Political Corruption?
All of the above?
Pole Camera
Questions To Ask
•Can People See This Area W/O Pole
Camera?
•Is the area
private/public/backyard/hold?
•Duration of video?
•Who Put the Camera there and why?
•Zoom, pan, focus on Def’s Curtlage?
Electronic Surveillance
Is Fluid & Not Static!!
•Immediately Do Internet Search
•Think About Preservation!
•WestLaw / Lexis Search
•Contact EFF.org
•FD.org
•Experts!!!
•Use Request for Investigation/Expert Funds
To Educate Court
Question & Answer