Electronic Surveillance & Constitutional/Legislative Protections

1. Electronic Surveillance & Constitutional/Legislative Protections Eric Vos Federal Defender– District of Puerto Rico Eric_Vos@ao.uscourts.gov

2. What is Electronic Surveillance? Not?

3. What We Will Cover Cell Phone Site Location (CSL) Wiretaps “Slap On” GPS Trackers Pen Registers/Trap and Trace Pole Cameras

4. Question #1 Which of The Following Areas Enjoys Constitutional 4th Amendment Protections? Cell Phone Site Location Wiretaps “Slap On” GPS Trackers Pen Registers/Trap and Trace Pole Cameras

5. Answer Which of The Following Areas Enjoys Constitutional 4th Amendment Protections? Cell Phone Site Location Wiretaps “Slap On” GPS Trackers Pen Registers/Trap and Trace Pole Cameras

6. Where Do Our Protections Come From?

7. Constitutional 4th Amendment and/or Statutory 4th Amendment Provides Us With Little Protection & Privacy Comes from Statute.

8. 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.

9. if “information likely to be obtained” will be relevant to an on-going criminal investigation. Filling The Constitutional Void with Statutory Protections Pen/Trap Telephone Numbers legislation - no person may install or use a pen or trap without getting a court order. Court needs to find that “information likely to be obtained” will be relevant to an on-going criminal investigation. ≠ Probable Cause!!

10. Wiretaps Require Super-Warrant Not Only Probable Cause

11. Cell Phone Site Location (CSL) Wiretaps “Slap On” GPS Trackers Pen Registers/Trap and Trace Pole Cameras

12. Cell Phone Site Location-CSL How?: Pings & GPS 1. when call in 2. call out & 3. when idle – every 2 seconds Period Covered?: Real-Time Historic Records (limited to calls made/received For Now!) CSL For Who?: Individual # or Data Dump

13. Question #2 What is a Data Dump? When discovery includes more than a terabyte of digital data? The cell phone data covers in excess on 6 months of phone activity? Digital discovery is provided in a ad hoc & random basis? Pen/Trap data includes multiple cell phones for each given tower/cell? All of the above?

14. Tracking One Telephone Location Over Time Data Dump 1 3 2

15. Tracking every two seconds Two Types of Data: 1. Real-Time & 2. Historical Real-Time (live tracking) Phone Company Personnel Internet Portal Stingray Historic Records Individual phone location when made and received calls. All Phones who made and received calls which were located in Vicinity of Tower (Data Dumps) Tracking only when call made or received

16. How Does Law Enforcement LEGALLY Get Data? They Simply Ask For It Carrier Delivers or Gives Access W/O Warrant or Order. 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.

17. How Long Does The Data Remain?

18. Historical & Real Time CSL! No 4th Amendment Rights Business Record! No expectation of privacy because we know they are collecting it. Done by Service Provider in Normal Course of Business. Provider Not Required by Government to Keep These Records.

19. Other Ways Location of a particular phone obtained when idle & real-time needing little to no scrutiny Exigent Circumstances as in kidnapping 911 Call Tracking Geo-Tags: Photos Location Services

20. 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?

21. 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

22. Getting the data for your client! Immediately Try and Preserve!

23. How Long Does The Data Remain?

24. DRAFT! USE IT! DON’T JUST COPY!! Getting the data for your client! Discovery Letter to Prosecutor?

25. Getting the data for your client from CARRIERS! Order per Rule 17c Avoid Subpoena

26. Getting the data for your client concerning who? Cooperators Co-Defendants Police Investigators Witnesses Client

27. 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…

28. Disc. Ltr. To AUSA GENERAL! NOT SPECIFIC!!! 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!!!

30. Cell Phone Site Location Wiretaps “Slap On” GPS Trackers Pen Registers/Trap and Trace Pole Cameras

31. 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.

32. What is a Wire Tap? Oral communication Wire Communication Electronic Communication

33. 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

34. 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. .

35. Talking Content 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

36. Talking Content What is a Wire Tap? Oral Wire 3. Electronic Communication

37. Don’t Be a Wire-Tapper! Don’t Tap into: FaceBook Messages Emails Instant Messages NOTHING Get Court Approval

38. Cell Phone Site Location Wiretaps “Slap On” GPS Trackers Pen Registers/Trap and Trace Pole Cameras

39. 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.  

40. GPS Slap On! United States v. Jones Device was not original to car! No Solice!

41. Allstate has recorded over a billon miles of driving

42. Cell Phone Site Location Wiretaps “Slap On” GPS Trackers Pen Registers/Trap and Trace Pole Cameras

43. 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.

44. if “information likely to be obtained” will be relevant to an on-going criminal investigation. 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. legislation says that no person may install or use a pen or trap 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!!

45. You Can Get Pen/Trap Telephone Numbers Subpoena and/or Rule 17C Order

46. Cell Phone Site Location Wiretaps “Slap On” GPS Trackers Pen Registers/Trap and Trace Pole Cameras

47. 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

48. Poll Question #3 U.S. v. Anderson Bagshaw involved? Kidnapping? Drug Distribution Point? Raising Alpacas? Political Corruption? All of the above?

50. 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’sCurtlage?