Protecting Privacy in Cyberspace
Technologically challenged courts struggle with how to apply Fourth Amendment protections to electronic communications
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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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