For many years, cases ruling on provisions of the Electronic Communications Privacy Act of 1986 (ECPA) and its interaction with the Fourth Amendment protections of the U.S. Constitution were few and far between.

Over the past few years, however, increased litigation has forced higher courts to address issues involving the law and electronic communications with greater regularity. Despite this, it appears that the legal system is still a very long way from having any degree of clarity in interpreting ECPA and the Fourth Amendment when it comes to electronic communications. Appellate rulings continue to frequently generate split opinions and significant controversy. In this regard, 2012 has certainly not been a disappointment, as demonstrated by three curious cases.

‘Jones’

Starting in January, the U.S. Supreme Court took its first dip into the muddy waters of GPS tracking in United States v. Jones.1

Despite being a unanimous 9-0 holding in support of suppressing the GPS results, the judges found it necessary to issue three written opinions, thereby demonstrating that their reasons in favor of suppression were anything but unanimous.

The government, in Jones, secured a search warrant to install a tracking device on defendant’s vehicle. The warrant required the device be installed in the District of Columbia within ten days of the signing of the warrant. Instead, the device was installed on the eleventh day in Maryland. The defendant moved to suppress the results of the ensuing 28 days of GPS tracking of his vehicle as an unreasonable warrantless search.

Majority Opinion. Justice Antonin Scalia, joined by four other justices, wrote the majority opinion finding that the government’s accessing the defendant’s vehicle beyond the timing and location limitations authorized by the warrant in order to install the tracking device was a trespassory violation and, hence, an unlawful search of the vehicle under the Fourth Amendment.

Justice Samuel Alito’s Concurring opinion. Alito dismissed the majority opinion’s reliance on a trespass analysis, calling it an “old approach”2 and one based on “18th-century tort law.”3 The concurring opinion then traced the history of the Fourth Amendment and its long reliance, until the mid-20th century, on the need for a trespass to exist before a violation could occur.

It noted how in Olmstead v. United States,4 the Supreme Court held no Fourth Amendment violation transpired because the government had tapped into the telephone lines on a public street that carried the communications ultimately into the defendant’s home. Likewise, a recording device placed on the wall outside the defendant’s office to record conversations occurring inside was held not to violate the Fourth Amendment in Goldman v. United States.5

Alito observed that the concept that the Fourth Amendment could not be infringed without a trespass ended with the Supreme Court’s ruling in Katz v. United States,6 where it held that the Fourth Amendment protected not just places, but people. There, the government’s warrantless placement of a listening device on the outside of a telephone booth used by the defendant was deemed to be an unconstitutional search and seizure.

Applying the Katz doctrine to the facts in Jones, Alito felt the court’s determination should hinge on whether the defendant’s “reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”7

This concurring opinion concluded with the recognition that while “relatively short-term monitoring of a person’s movements on public streets” is a surveillance that “our society has recognized as reasonable,”8 four continuous weeks of uninterrupted remote surveillance was unreasonable. Alito could not state where the precise boundary exists that causes a continuous surveillance to move from reasonable to unreasonable, but four weeks’ worth was definitely too much.

Justice Sonia Sotomayor’s Concurring Opinion. Sotomayor joined in the majority decision, but also wrote a separate concurring opinion. She agreed with Scalia’s claim that Katz did not “displace or diminish the common-law trespassory test” but merely “augmented” it.9 Her concurring opinion, however, also suggested much broader privacy concerns.

Using a Katz reasonable expectation of privacy analysis, Sotomayor questioned the propriety of even short-term tracking. Quoting People v. Weaver, 12 N.Y.3d 433, 441-42 (2009), she feared what can be discovered when the government accesses any amount of GPS data:

trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.

She similarly questioned the law’s long-standing precedent that there are no Fourth Amendment protections in information shared with a third party. Her concern was that if “secrecy [is] a prerequisite for privacy”10 then much of the activity people perform on the Internet and their smartphones will be available to the government without a warrant.

Much of what Sotomayor raised is, obviously, dicta as even she conceded that “[r]esolution of these difficult questions is unnecessary, because of the Government’s physical intrusion on Jones’ Jeep.”11 But the concerns she raised bear watching in future court decisions.

‘Skinner’

Interestingly, the majority decision in Jones also noted that while it might be a constitutional violation to conduct electronic surveillance without a law enforcement trespass, “the present case does not require us to answer that question.”12 In August of this year, however, a three-judge panel of the federal Sixth Circuit Court of Appeals did address that specific issue in United States v. Skinner.13

In Skinner, DEA agents involved in an international marijuana trafficking investigation learned that principals in the organization secured and registered short-term “pay-as-you-go phones” in false names for those transporting the product and payment. Unbeknownst to those involved in the operation, these phones had GPS tracking capabilities installed.

The agents secured court orders14 from a federal magistrate to remotely activate and utilize the GPS feature on defendant’s phone. From other information they had acquired from court-ordered wiretaps, the agents knew the possessor of the phone (while not knowing his true identity) was in the midst of delivering drugs. By “pinging” his mobile phone, they could tell he was on a Texas interstate and was parked at a truck stop near Abilene.

The agents were able to identify a mobile home with Georgia plates as the probable vehicle and approached with drug-sensing dogs. Upon knocking on the front door, Skinner denied the agents entry. But as the dogs reacted to the presence of drugs, the agents entered and discovered over 1,100 pounds of marihuana.

Skinner sought suppression of the GPS results. The trial court denied suppression and the Sixth Circuit affirmed, both courts holding the defendant had no Fourth Amendment protection here.

The appellate decision distinguished Jones on two grounds. First, law enforcement conducted no trespass of the throw-away phones here; the devices were already so equipped. Second, the surveillance lasted only three days.

But the circuit court also used a much broader brush in analyzing why it reached its decision:15

The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen.

As in Jones, Skinner was a unanimous decision with a twist. Not all the judges agreed for the same reason. One judge concurred in the result, but did not agree with majority’s reasoning.

Concurring Opinion in ‘Skinner’. The lone judge here felt that this was a Fourth Amendment-protected area of privacy that was violated by the agents, utilizing the two-part test from Katz, i.e., “Has the individual manifested a subjective expectation of privacy in the object of the challenged search [and] is society willing to recognize the expectation as reasonable.”16

This concurring judge spent little time explaining why he thought the elements of both Katz prongs were met in Skinner, but spent most of his decision distinguishing the case law cited by the other two judges. In particular, he challenged their reliance on United States v. Knotts, 460 U.S. 276 (1983), in which the government got the consent of the manufacturer of a legal chemical typically used to assist in narcotics making to allow the placement of a beeper in a barrel of the chemical so it could be tracked to the defendant’s narcotics laboratory and United States v. Forest, 355 F.3d 942 (6th Cir. 2004), in which law enforcement, who lost sight of a suspected drug courier they were trailing, pinged his cell phone to re-establish contact with him, both cases being found to be valid warrantless public tracking.

The distinction the sole concurring judge found with the Skinner facts is that the DEA agents were unaware of Skinner’s identity, his location or the description of his vehicle until they accessed his tracking information, which was not the case in either Knotts or Forest. Nevertheless, this judge concurred with the other two on a good faith exception, finding that the court orders the DEA agents secured, although called only an order, met all of the requirements of a search warrant making it only a procedural, and not a substantive, defect.

‘Jennings’

The final of the three noteworthy cases from 2012 was issued only seven weeks ago by the South Carolina Supreme Court in Jennings v. Jennings, a divorce proceeding.17 The husband had admitted his affair to his wife and also acknowledged he used his email account to communicate with his mistress.

The wife utilized the assistance of her daughter-in-law (married to her son from an earlier marriage) who had once worked for her current husband. The daughter-in-law knew the husband’s Yahoo! account and was able to guess the answer to the security question connected to it, which then gave her access to all the husband’s emails. She printed out the relevant ones and gave them to the wife and the wife’s private investigator.

The husband, upon learning of the access to his account, sued his wife, the daughter-in-law and the investigator for violations of the Stored Communications Act, Title II of ECPA, specifically alleging a violation of 18 U.S.C. 2701(a).

Definition of “Electronic Storage.” As required by that statute, in order to sustain such an action, the electronic communication improperly accessed must be one in “temporary storage.” Hence, this case came down to the definition of that term as set forth in 18 U.S.C. 2510(17):

“Electronic storage” means

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

(B) any storage of such communication by an electronic communication service for purposes of backup storage of such communication.

Once again, although this was a unanimous decision, the five justices issued three separate opinions. They all agreed that since the emails had already been opened and read by the husband by the time the daughter-in-law accessed them, subsection (A) of the definition did not apply. They were no longer in temporary storage awaiting transmission to the husband.

Three Concurring Opinions. Two justices, who joined in one concurring opinion, ruled that subsections (A) and (B) were in the alternative, as several cases interpreting this statute had previously decided, and the emails in question had to only fit one of those descriptions to come under ECPA protection. The emails in Jennings did not fit subsection (B) because the husband had not downloaded the emails onto his computer or stored them elsewhere. Therefore, the ones in Yahoo!’s possession were still the original ones and not backups.

Two justices in a separate concurring opinion, held that the word “and” in the definition of “electronic storage” is exactly what it means, adopting what is often referred to as the “traditional interpretation” of the Department of Justice. If the emails in question did not comply with both subsections of the definition, they were not in “electronic storage.” Once received, open and read by the husband, the emails were no longer in “electronic storage” because both subsections of the definition could no longer be satisfied.

This concurring opinion also ruled that even if the husband had downloaded the emails or stored them elsewhere and considered leaving a copy with Yahoo! that action would not have been the kind of backup storage contemplated by Congress, because it intended that it be the service provider who was performing the backup storage.

The last justice issued a concurring opinion that was an amalgam of the other two. He felt that the definition of “temporary storage,” out of sheer necessity, described two separate activities despite the use of the word “and” to combine the two subsections, thereby agreeing with the first opinion. He, however, agreed with the second concurring opinion that the activity to be considered is not if the husband intended to backup the email on Yahoo!’s servers as constituting backup storage, but whether Yahoo! backed up these emails elsewhere on its servers.18

Conclusion

Probably the most insightful observation in any of these three court decisions was made by the two judges in Jennings who believed the definition of “electronic storage” should retain the “traditional interpretation” of the DOJ. Part of the justification for their holding was a review of the legislative intent when ECPA was drafted.

The insightful part may not have been as much their analysis of what Congress intended, but the recognition that ECPA was created a time long before many of today’s technologies were even invented, including the World Wide Web and modern-day tracking capability.

Ultimately, this may be the greatest barrier to greater unanimity amongst the courts and individual judges, possibly now and forever more. For the legal paradigm of reliance on long-standing legal precedent and more than a quarter-century-old set of statutes seem hopelessly incongruent with the inherently rapidly evolving nature of technology.

Stephen Treglia, a former Nassau County prosecutor who headed the office’s computer crime unit, is legal counsel at Absolute Software Corporation, which makes and distributes tracking software for stolen computers and mobile digital devices.

Endnotes:

1. 132 S.Ct. 945 (2012).

2. Id. at 959.

3. Id. at 957.

4. 277 U.S. 438 (1928).

5. 316 U.S. 129 (1942).

6. 389 U.S. 347 (1967).

7. Jones, 132 S.Ct. at 958.

8. Id. at 964.

9. Id. at 955.

10. Id. at 957.

11. Id.

12. Id. at 954.

13. 690 F.3d 772 (6th Cir. 2012).

14. Although not described in greater detail in the decision, these would appear to be ECPA’s “articulable fact orders” issued pursuant to 18 U.S.C. 2703(d), an order which allows the disclosure of certain electronic communications based on evidence less than probable cause when the government, “offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

15. 690 F.3d at 777.

16. Id. at 784.

17. _ S.E.2d _, 2012 WL 4808545 (2012).

18. Jennings is in direct conflict with the decision of the Ninth Circuit Court of Appeals in Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), which held that the user’s decision to leave opened email on the provider’s server is “backup storage” under ECPA.