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Flashcards in ELECTRONIC COMMUNICATIONS Deck (22):
1

Are electronic communications determined to have an expectation of privacy under the 4th Amendment?

NO; Supreme Court has consistently ruled that, under
the Fourth Amendment, a person cannot ordinarily
expect privacy in information that he has transmitted
through an intermediary

2

Why is electronic communications not considered to have an expectation of privacy....entirely?

Because when a person sends an electronic
communication because the message must be copied
and stored along the way (at least temporarily)
on equipment that is owned and controlled by the
service provider

3

Which act determined the less restrictive intrusion upon electronic communications?

Congress acted
first, having decided that if the Fourth Amendment
did not protect the privacy of these forms of communications,
it would write a law that did. The result
was the Stored Communications Act of 1986 (SCA).

4

When does an electronic message fall within the SCA-Stored Communications Act?

a message falls within the SCA if (1)
it was “stored,” and (2) it was stored on the equipment
of an “electronic communication service” (ECS)
or a “remote computing service” (RCS).

5

When is a communication considered "stored"? And what is the court ruling on storage?

An electronic
communication is deemed “stored” if it was
being held temporarily by a provider as an incident
to its transmission to the recipient. Thus, most
courts have ruled that an email or other communication
that has been opened by the recipient is no
longer in temporary storage

6

Does SCA cover searches of suspect's computers for electronically stored messages?

NO; SCA do not cover searches of email, voicemail, or text
messages that have been stored on computers or
other storage devices that are owned or controlled by
the suspect

7

Do the police need a search warrant to search a suspect's computer?

officers will need a
warrant to search a suspect’s computer

8

What is a "record"?

“records” consist of raw data that is
merely ancillary to the communication.25 Examples
include the “to/from” names and addresses, dates,
and times pertaining to an email message, the phone
numbers that were transmitted to telephone switching
equipment, the addresses of websites that were
visited on a certain computer, and the internet or IP
address assigned to a particular computer.

9

What is "content"?

The term “electronic communications” (also called
“content”) refers to the message that is conveyed by
the sender, including statements of fact, thoughts,
requests, conclusions and other expressions

10

Is a URL deemed a record or content?

CONTENT: it is possible, that Uniform Resource Locators
(URLs) will be deemed content because they
indicate “the location of specific documents on the
Web” that a person has viewed and, thus, constitute
the type of “personal information” that may be entitled
to greater protection

11

When should an officer conduct a search warrant on electronic communications

officers should
seek a search warrant if they have probable cause to
believe that certain email, voicemail, or text messages
constitute evidence of a crime

12

The SCA requires a search warrant for new messages that have been in existence for what period of time?

The SCA requires
a warrant if, as is usually the case, officers want
to search for messages that have been in storage
for 180 days or less

13

Upon a NOTICE TO PRESERVE what is the timeframe allotted pursuant to SCA?

SCA provides
that ISPs must preserve these messages for 90 days
if officers request them to do so

14

What is notice to preserve?

when officers determine that voicemail, email, or
text messages may be relevant to an investigation,
they should immediately contact the provider, give
notice that a warrant will be sought, and request
that they save any stored messages

15

Can officers ask for an extension on a notice to preserve, if so, how long?

YES,90 DAYS; when officers determine that voicemail, email, or
text messages may be relevant to an investigation,
they should immediately contact the provider, give
notice that a warrant will be sought, and request
that they save any stored messages

16

Under what conditions can an officer request for a NON_DISCLOSURE

(1) ENDANGER the
life or safety of a person, (2) result in FLIGHT from
prosecution, (3) result in DESTRUCTION of or tampering
with evidence, (4) result in the INTIMIDATION of
a potential witness, or (5) would otherwise seriously
JEOPARDIZE the investigation or unduly delay
a trial. A court may order 90-day extensions of a
nondisclosure order

17

When can a warrant for an out of state ISP be served in California?

Whens the ISP conducts business in California.

18

UNDER WHAT CONDITIONS MAY A JUDGE REQUIRE COMMUNICATIONS IN LESS THAN 5 days?

If investigators can establish a good cause such as a danger to life or flight from prosecution

19

The SCA states that officers may under certain circumstances obtain copies of email, voicemail, text messages by what means other than a warrant, what is it called?

2703(d) order. AKA: D-order

20

A court may issue a D-order if the application contains what information?

Specific and articulable facts that establish "reasonable grounds" to believe that the contents of the communication ARE RELEVANT AND MATERIAL TO AN ONGOING CRIMINAL INVESTIGATION

21

What's advantage of a D-order?

It DOES NOT require probable cause

22

What's the disadvantage of D-orders?

Officers must ordinarily give the subscriber notice that they will be seeking one so that he may obtain a judicial review