Protecting
Privacy in Cyberspace
Technologically
challenged courts struggle with how to apply Fourth Amendment
protections to electronic communications
by Wendy Davis
New Jersey Law Journal
November 29, 1999
Nowadays, just about
anyone with a modem and time to spare can discover personal details of
other people's lives. Information ranging from medical histories, to
bank statements, to books purchased, is stored online and is accessible
to hackers.
But while the technology
speeds ahead, lawmakers have barely begun to wrestle with the attendant
privacy issues, such as whether protections against search and seizure
apply in cyberspace.
In New Jersey, the issue
came to the fore on Nov. 8 when the Appellate Division considered
whether police could constitutionally scroll through a suspect's pager
to see who had recently called him.
A three-judge appeals
panel upheld the police actions in that case, State v. DeLuca,
A-6727-97T4. The court ruled that although the telephone numbers in the
pager were protected by the Fourth Amendment, the search was justified
by exigent circumstances -- namely, that the numbers might be erased.
The arresting officer had
testified at the suppression hearing that he was afraid information
stored in the pager would be erased if new calls came in. Judge Dennis
Braithwaite -- joined by Donald Coburn and James Petrella -- held that
the officer "had a reasonable belief that evidence necessary to the
investigation might be lost if he did not act quickly."
Defense attorney Philip
Lago, a Little Ferry solo practitioner, does not yet know whether he
will appeal to the state Supreme Court. His client was convicted of
first-degree robbery.
But other criminal
attorneys say the appeals court's reasoning in DeLuca is flawed --
though typical of what is happening when courts are confronted with
technology.
Sam Guiberson, a
Houston-based criminal defense attorney, who specializes in
electronic-surveillance law, says judges are grappling with science
without a clear sense of how electronic communication devices work.
"There you have a
tortured analysis of a nascent technology, trying to apply traditional
notions of search and seizure law," says Guiberson, explaining that
most pagers can be set to stop incoming numbers, which would have given
the police time to obtain a warrant.
"If all they were
interested in was a phone number, there were other means of determining
that," says Mark Friedman, chairman of the State Bar Association
Criminal Law Section. "There is no way of destroying a phone
number," he adds. "This isn't a firearm that you can throw
into a gutter."
The larger Fourth
Amendment problem, says Guiberson, is that with the proliferation of
cell phones and hand-held computers, information is becoming so portable
and accessible that taking a look "becomes irresistible to law
enforcement."
However, the court in DeLuca
did find, at least in theory, that there was a privacy interest in the
pager, and that gives defense lawyers some encouragement.
"What is promising
is that [the court] did in fact say that information stored in one of
these units has Fourth Amendment protections," says Friedman, who
holds a broader fear that courts will ultimately hold that there is no
privacy in cyberspace.
"The Fourth
Amendment does a pretty reasonable job of protecting things in people's
homes and on their persons," adds Alan Davidson, staff counsel for
the Center for Democracy and Technology, a civil liberties organization
in Washington, D.C. However, he says, the problem with digital
information is that Fourth Amendment protections do not traditionally
apply to information that has been given to third parties.
For example, an Internet
service provider might turn over a list of Web sites visited by one of
its customers, or a customer's name and address, in response to a simple
request from the authorities; at present, there is no requirement that
the police first get a warrant -- although the service providers do not
necessarily have to cooperate with the police without one.
And although
long-standing federal and state wiretapping statutes prohibit listening
in on conversations in progress -- at least without court authorization
-- there are few, if any, laws spelling out when other people can
monitor information that is transmitted digitally. Instead, the courts
have been left to figure out case-by-case how to balance people's right
to privacy with the needs of law enforcement.
To Fourth Amendment
scholars, the fundamental reason why traditional search and seizure
doctrine does not work in cyberspace is that the law is based on the
premise that people have no expectation of privacy in information that
has been shared with a third party. But others say that this assumption
is no longer valid today, where people routinely share information with
Internet service providers on the Web, yet expect that it will not fall
into other hands.
"The way the law has
gone, any time you expose information to a third party, the government
can get it, too," says Bruce Harris, a professor at the University
of Toledo School of Law.
Harris points to Supreme
Court cases such as United States v. Miller, 425 U.S. 435, a 1976
decision that held the police did not need a warrant to obtain bank
records, and Smith v. Maryland, 442 U.S. 735, in which the Court
decided in 1979 that no warrant was needed to install a pen register to
record the telephone numbers that had been dialed from the defendant's
house.
"Those older
decisions, throwing open the door, have opened up the way to more
intrusive snooping," says Harris. "Those cases sow the seeds
for where we are now, a world where information is power, and it's
everywhere and we can't protect it."
The American Bar
Association's Task Force on Law Enforcement and Technology is expected
to issue recommendations about protecting privacy early next year. The
group, chaired by Sheldon Krantz, a partner in Washington, D.C.'s Piper
& Marbury, is working on standards about interception of electronic
communications.
"The group we are
working with clearly is of the view that information you're trying to
keep to yourself is private," says Krantz, who adds that the task
force is composed of defense attorneys and law enforcement personnel.
"Some of the old
distinctions might not hold up," says Krantz of the pen register
and bank records cases. "There are arguments that there has to be
an expectation of privacy in an Internet situation."
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© 1999 ALM IP, LLC -- American Lawyer Media. All rights reserved.