CTIA-FCBA CLE Program

1. CTIA-FCBA CLE Program Wireless 2005 New Orleans, LA March 13, 2005 Owen B. Carragher, Jr.

2. Make sense (somewhat) out of the legal landscape. Provide you with a framework for how you should look at the issues that you will face. Goals

3. Fundamental Advice Plan ahead and have policies in place for the various contingencies you will face. Train your subpoena and court order compliance personnel so that they know your policies. If your client has any doubt about whether it should comply with a request, it should consult with counsel before complying. Carriers should not be browbeaten into providing information. Develop relationships and keep the lines of communication open with law enforcement.

4. When the expectation of privacy is greater, the obligations imposed upon law enforcement are greater. Put another way, the greater the intrusion, the greater the legal process that is required. First Core Concept

5. Examples

6. Federal statutes provide the framework for the restrictions upon access to records, information and content. However, individual states can impose greater restrictions upon law enforcement than those in the federal statutes. Note: State rules apply only to state and local law enforcement officers in that jurisdiction. Second Core Concept

7. Focus first upon the type of records, information or access sought, not on the label or caption of the legal process. Then, examine the process to determine if it complies with the requirements for each of the types of records, information or access sought. Third Core Concept

8. You should have a facially valid legal process in hand before you provide records, information or access. Fourth Core Concept

9. This does not mean every kind of record a carrier maintains. Limited to the following: Customer name and address Local and long distance connection records Length and types of service utilized Telephone or instrument number or other subscriber number or identity (including an I.P. address) Means and source of payment for service Numbers that called the target phone (calls to destination reports) 18 U.S.C. § 2703(c)(2) Basic Transactional Records – Federal Law

10. Types of legal process that can be used: An administrative subpoena authorized by a federal or state statute A subpoena issued by a federal or state grand jury A trial subpoena A specific and articulable facts order signed by a judge or magistrate A search warrant Proof of customer consent (but not for calls to destination) Note: the government cannot use a subpoena to obtain e-mail addresses, communications with websites or I.P. addresses of websites visited. Basic Transactional Records – Federal Law(continued)

11. Immunity: No cause of action against a provider disclosing information under this chapter.--No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter. 18 U.S.C. § 2703(e) Immunity should provide you with immediate dismissal in any suit where you provided information within the scope of a facially valid court order, warrant, subpoena, statutory authorization or certification. Protections For Carriers

12. Good Faith Defense: Defense.--A good faith reliance on-- (1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703(f) of this title); (2) a request of an investigative or law enforcement officer under section 2518(7) of this title; or (3) a good faith determination that section 2511(3) of this title permitted the conduct complained of; is a complete defense to any civil or criminal action brought under this chapter or any other law. 18 U.S.C. § 2707(e) Protections For Carriers (continued)

13. The good faith defense is a fall back that might not prevent a case against you from going all the way to a jury verdict. This would involve situations where the legal process was not facially valid, where the process was not of the required type, or where you exceeded the scope of the legal process. Written procedures and policies are essential to your efforts to invoke the immunity and good faith defenses. Protections For Carriers (continued)

14. Actual damages or $1,000 per violation, whichever is greater Injunctive relief Attorney’s fees and litigation costs Public relations problems 18 U.S.C. § 2707 Potential Liabilities

15. Examples: Some States Have Special Rules • California • Colorado • Idaho • Maine • New Jersey

16. Carriers are generally free to accept service by fax Carriers are generally free to accept interstate service Search warrants may present a unique issue: United States v. Bach and 18 U.S.C. § 2703(g) Service of Process

17. Must name the carrier Exceptions: Search warrants can identify the custodian’s address. Federal pen register and trap and trace orders can be addressed to another carrier but also direct that all other carriers provided assistance or records. A method of identifying the customer, account, or phone number that the process is addressed to Examples: Name, Phone number, Account number, Social security number A clear description of the records sought Directions for where, or to whom, the records are to be produced The authorizing party’s signature A date is usually not required on a subpoena but you must be given a reasonable amount of time to respond. A search warrant must specify a date that it was issued and must be served within 10 days of the issuance (states may direct a shorter period). Content of Legal Process

18. Not prohibited by federal statutes. Some states have statutes that prohibit notification in some situations. Cannot notify if there is a court order not to. Many carriers will voluntarily choose not to notify if specifically requested by law enforcement. Customer Notification

19. Search warrants, court orders and subpoenas require your compliance. As a practical matter, a legal process will have to be extremely burdensome before a court will quash it. Time, negotiation and prior relationships are your best defenses to onerous legal process. Duty to Cooperate Right to Compensation Right to Compensation • Generally, government agencies do not have to pay for toll records and telephone listings. • 18 U.S.C. § 2706(c)

20. The real time acquisition of phone numbers dialed from a target phone and to a target phone. 18 U.S.C. § 3127 (3) and (4) Caller ID is considered a trap and trace. With implementation of CALEA, these are now inseparable. As a result, orders must comply with the requirements for both. Do not include location information. Federal orders are obtained by a federal prosecutor certifying to a federal judge that the information likely to be obtained is relevant to an ongoing criminal investigation. Probable cause is not required. Pen Registers and Trap and Traces

21. There are two kinds of orders that you might see: Full orders or Redacted orders or “orders to the phone company” (used for confidentiality purposes) You must have a facially valid order in hand before you provide pen register or trap and trace access. Contents of Federal Pen Register and Trap and Trace Orders

22. the identity, if known, of the person who leased, or in whose name is listed, the telephone line or other facility to which the pen register and trap and trace is to be applied the identity, if known, of the person subject to investigation the attributes of the communications to which the order applies, including the number or other identifier (such as an electronic serial number) of the phone subject to the order, and, if known, the physical location of the telephone line for state court orders only, the geographical limits of where the trap and trace (but not the pen register) may be used Contents of Full Orders

23. a statement of the offense to which the information likely relates the duration of the installation (not to exceed 60 days) directions for the carrier to furnish information, facilities and technical assistance necessary to accomplish the installation nondisclosure instructions to the carrier 18 U.S.C. §§ 3123(b) and 3124 Contents of Full Orders (continued)

24. the number or electronic serial number of the phone subject to the installation for state court orders only, the geographical limits of where the trap and trace (but not the pen register) may be used the duration of the installation (not to exceed 60 days) directions for the carrier to furnish information, facilities and technical assistance necessary to accomplish the installation; and nondisclosure instructions to the carrier. 18 U.S.C. §§ 3123(b) and 3124 Contents of Redacted Orders or Orders to Phone Company

25. What does the order say? A day is not a 24 hour period but a calendar day. Best guidance is to not count the first day of access. United State v. Smith, 223 F. 3d 554 (7th Cir. 2000) United States v. Gangi, 33 F. Supp. 2d 303 (S.D.N.Y. 1999) CALEA imposes an obligation to not provide more access than authorized. Calculation of the Duration of a Pen Register and Trap and Trace Order

26. Criminal prosecution with a potential jail sentence of a year and substantial fines Civil exposure Potential CALEA reporting obligations Public relations problems Potential Liabilities Protection for Carriers • Immunity pursuant to 18 U.S.C. § 3124(d) • Good faith defense pursuant to 18 U.S.C. § 3124(e)

27. Notification is prohibited by the terms of each order. 18 U.S.C. § 3123 Notification to Customers

28. Not every state specifically authorizes. Some states have a higher standard that law enforcement must meet. Examples: New York -- reasonable suspicion Colorado -- probable cause Some states have shorter durations. State Court Pen Register and Traps and Traces

29. A federal court pen register and trap and trace order can now be executed anywhere within the United States. A state court pen register and trap and trace order must be executed within the jurisdiction of the court that issued the order. Issue: CALEA delivery Jurisdiction

30. Relic from the old land line world. No longer applies to federal court orders. Must be in a state court order for it to be facially valid. Does not pertain to the jurisdiction of the court or the law enforcement agency. Does not pertain to where the target phone is located or where the law enforcement agency will monitor the data. Incompatible with modern caller I.D. Probably pertains to where your switches are located. Solution: Order should say that the geographic limit of the trap and trace is the United States. Geographic Limitation of a State Court Trap and Trace Order

31. A provider of a wire or electronic communication service … who furnishes facilities or technical assistance pursuant to this section shall be reasonably compensated for such reasonable expenses incurred in providing such facilities and assistance. 18 U.S.C. § 3124 (c) Compensation

32. For location information and any other records other than transactional records one of the following must be provided: a specific and articulable facts order pursuant to 18 U.S.C. § 2703(d) a search warrant proof of customer consent A subpoena is not sufficient for the government. It is sufficient for a criminal defendant or a civil litigant. A pen register and trap and trace order is not sufficient. However, an order that says it was issued under both the pen register and trap and trace statutes (18 U.S.C. § 3121 et. seq.) and 18 U.S.C. § 2703(d) is sufficient. Location Information and Other Records – Federal Law

33. With the exception of voice mail in many states, law enforcement agencies can obtain access to the contents of voice mail, e-mail or text messages that have been in electronic storage lessthan180days with a search warrant or the consent of the originator or addressee or intended recipient. 18 U.S.C. § § 2702 and 2703 With exception of voice mail in some states, law enforcement agencies can obtain access to the contents of voice mail, e-mail or text messages that have been in electronic storage morethan180days with: A search warrant; or With prior notice to the subscriber, a specific and articulable facts order or an administrative, grand jury or trial subpoena. However, notice may be delayed under certain circumstances; or The consent of the originator or addressee or intended recipient. 18 U.S.C. § § 2702 and 2703 Stored E-mail, Text Messages, and Voice Mail

34. Several Approaches Some have statutes that mirror the current provisions of ECPA. Some have statutes that mirror the provisions of ECPA before USA Patriot. Some have no provisions addressing access to stored wire or electronic communications. Some are unique. Individual States and Voicemail

35. Wiretapping Order applications must demonstrate exhaustion. Wiretapping Order applications must be approved by a very high ranking prosecutor. In some states only a limited number of judges are authorized to sign Wiretapping Orders. Wiretapping Orders cannot be issued for every crime. There are more significant procedural rules for intercepting communication. Significant Differences Between Wiretapping Orders and Search Warrants

36. Real time interception of telephone conversations Real time interception of e-mail and text messages Accessing unopened voice mail in many states All require a Title III wiretapping order Interception of the Content of Communications

37. Again, for security reasons, carriers are often served with a redacted version of the original order or a shorter order addressed specifically to the carrier. If the full order is served, it must contain the following: the identity of the person, if known, whose communications are to be intercepted the nature and location of the communications facilities where the interception will take place (i.e. telephone number or ESN) a particular description of the type of communication to be intercepted and a statement of the particular offense to which it relates Contents of Wiretapping Order

38. the identity of the agency conducting the surveillance and of the person authorizing the application the duration of the interception and whether or not the interception will automatically terminate when the communication has been obtained a direction that the carrier provide the necessary technical assistance the date the order was issued 18 U.S.C. § 2518(4) Contents of Wiretapping Order(continued)

39. If a redacted or abbreviated “Order to the Phone Company” is served, it must contain the following: the nature and location of the communications facilities where the interception will take place (i.e. telephone number or ESN) the identity of the agency conducting the surveillance the duration of the interception a direction that the carrier provide the necessary technical assistance the date that the order was issued 18 U.S.C. § 2518(4) Contents of Wiretapping Order(continued)

40. The methods of calculation are the same as for a pen register and trap and trace order. The maximum duration is 30 days. Some states have shorter maximum durations. Examples: Massachusetts -- 15 days New Jersey -- 20 days There can be extensions of the order. Duration of a Wiretap

41. Criminal prosecution with a potential jail sentence of up to five years and substantial fines. 18 U.S.C. § 2511 Civil exposure for The greater of actual damages, $10,000 or $100 for each day of violation Punitive damages Attorney’s fees Injunctive relief 18 U.S.C. § 2520 Potential CALEA obligation to voluntarily disclose Public relations problems Potential Liabilities

42. Immunity pursuant to 18 U.S.C. § 2511(2)(a)(ii)(B) Good faith defense pursuant to 18 U.S.C. § 2520(d) Protection for Carriers

43. Disclosure is Prohibited 18 U.S.C. § 2511 (2)(a)(ii)(B) Intentional disclosure or attempted disclosure in order to impede an investigation is a federal crime punishable by up to 5 years in prison. 18 U.S.C. § 2232 (d) Disclosure to Customers

44. A carrier may divulge any of its customer records to a government agency if the carrier: reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of this information. 18 U.S.C. § 2702(c) As a best practice, the carrier should receive a written request for the records with a representation that the emergency exists before providing the information. A form for this purpose can be prepared in advance and should track the language in the statute. Exigent Circumstances – All Customer Records

45. A carrier may divulge the contents of an e-mail, text message or voice mail (for federal officials and those of same states) to a federal, state or local government entity if the carrier: in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency. 18 U.S.C. § 2703(b) As a best practice, the carrier should receive a written request for the communications with a representation that the emergency exists before providing the information. A form for this purpose can be prepared in advance and should track the language of the statute. Exigent Circumstances – E-mail, Text Messages and Voice Mail (Federal)

46. In very rare circumstances, a carrier must provide access if a specially designated government agent has determined that one of a few very limited types of emergencies exists that requires surveillance before a court order can be obtained. 18 U.S.C. §§ 2518(7) and 3125 The government should provide a written certification that complies with the applicable statutes before access is given. Best practice is for the carrier to prepare a form that follows the language of the statute. Exigent Circumstances – Pen Registers, Trap and Traces, Eavesdropping and Voice Mail In Most States

47. The federal government must apply for an eavesdropping order within 48 hours of emergency access. 18 U.S.C. § 2518(7) The federal government must obtain a pen register or trap and trace order within 48 hours of emergency access. 18 U.S.C. § 3125 Many states do not have exigent pen register, trap and trace or eavesdropping statutes so state law enforcement agencies in those jurisdiction’s cannot use these procedures. Other states, like New York, have different emergency procedures. Exigent Circumstances – Pen Registers, Trap and Traces, Eavesdropping and Voice Mail In Most States (continued)

48. Subscriber name, phone number, contact number, billing address and cell site location for a phone that calls a public emergency assistance number such as 911 or *CG (Coast Guard) can be provided to the following: Public safety answering point 911 operator Emergency medical services provider Emergency dispatch provider Public safety agency (such as the Coast Guard) Fire service Law enforcement official Hospital emergency or trauma care facility These rules do not apply to private crisis or suicide hotlines. Best practice is to have a prepared form that tracks the governing statutes. Emergency Operators

49. 415 Madison Avenue, 16th Floor New York, New York 10017 212-812-8910 212-812-8920 (facsimile) 917-373-6669 (mobile) ocarragher@lcattorneys.com Owen B. Carragher, Jr.Lankler & Carragher, LLP If you have any questions, please feel free to contact Owen as follows: