Protections Eric Vos Federal Defender District of Puerto Rico EricVosaouscourtsgov What is Electronic Surveillance Not What We Will Cover Cell Phone Site Location CSL ID: 694966
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Slide1
Electronic Surveillance & Constitutional/Legislative Protections
Eric
Vos
Federal Defender
– District of Puerto Rico
Eric_Vos@ao.uscourts.govSlide2
What is Electronic Surveillance?Not?Slide3
What We Will CoverCell Phone Site Location (CSL)
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and Trace
Pole CamerasSlide4
Question #1
Which of The Following Areas Enjoys Constitutional 4
th
Amendment Protections?
Cell Phone
Site Location
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap
and Trace
Pole CamerasSlide5
Answer
Which of The Following Areas Enjoys Constitutional 4
th
Amendment Protections?
Cell Phone
Site Location
Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap
and Trace
Pole CamerasSlide6
Where Do Our Protections Come From?Slide7
Constitutional 4th Amendment
a
nd/or
Statutory
4
th
Amendment Provides Us With Little Protection & Privacy Comes from Statute.Slide8
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. Slide9
Filling The Constitutional Void with Statutory ProtectionsPen/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.
if “information likely to be obtained”
will
be relevant to an on-going criminal investigation.
≠ Probable Cause!!Slide10
Wiretaps Require Super-Warrant Not O
nly Probable CauseSlide11
Cell Phone Site Location (CSL)Wiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and Trace
Pole CamerasSlide12
Cell Phone Site Location-CSLHow?
:
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 DumpSlide13
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?Slide14
Tracking One Telephone Location Over Time
Data Dump
1
2
3Slide15
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 every two seconds
Tracking only when call made or receivedSlide16
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.Slide17
How Long Does The Data Remain?Call Records
Cell Towers Used
Text Message
Details
Text Message Content
Internet Session Information
Web Sites Visited
Verizon
At Least 1 Year
At Least 1 Year
At Least 1 Year3-5 daysUp to 1 YearUp to 90 DaysAT&T5-7 YearsSince July 2008
5-7 Years
Not Retained
Up
to 72 Hrs.Up to 72 Hrs.Sprint8-24 Months
8-24 MonthsUp to 18 Months
Not Retained
Up to 60 Days
Up to 60 Days
T-Mobile
5 Years
Officially, 4-6 Mos. Really > yr.
5 Years
Not Retained
Not Retained
Not RetainedSlide18
Historical & Real Time CSL!
No 4
th
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. Slide19
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 ServicesSlide20
Possible Attacks on CSLGet 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?Slide21
Other/Future Possible Attacks on CSLQuick Internet/Google Search
Easy Search = Privacy + Rights + (technology)
Example: privacy rights cell phone tracking sting ray or stingray Slide22
Getting the data for your client!
Immediately Try and Preserve!
Slide23
How Long Does The Data Remain?Call Records
Cell Towers Used
Text Message
Details
Text Message Content
Internet Session Information
Web Sites Visited
Verizon
At Least 1 Year
At Least 1 Year
At Least 1 Year3-5 daysUp to 1 YearUp to 90 DaysAT&T5-7 YearsSince July 2008
5-7 Years
Not Retained
Up
to 72 Hrs.Up to 72 Hrs.Sprint8-24 Months
8-24 MonthsUp to 18 Months
Not Retained
Up to 60 Days
Up to 60 Days
T-Mobile
5 Years
Officially, 4-6 Mos. Really > yr.
5 Years
Not Retained
Not Retained
Not RetainedSlide24
Getting the data for your client!
Discovery Letter to Prosecutor?
DRAFT! USE IT! DON’T JUST COPY!!Slide25
Getting the data for your client from CARRIERS!Order per Rule 17c
Avoid Subpoena Slide26
Getting the data for your client concerning who?Cooperators
Co-Defendants
Police
Investigators
Witnesses
ClientSlide27
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… Slide28
Getting the data for your client!General or SpecificWhen Using 17C Order?
Dates?
SMS Records?
Location Records?
Call Records?
Carriers Ignore General or Incorrect Requests
Get an EXPERT!!!
Disc.
Ltr
. To AUSA GENERAL! NOT SPECIFIC!!!Slide29Slide30
Cell Phone Site LocationWiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and Trace
Pole CamerasSlide31
Wire TappingThe federal wiretap statute 1968 or Title III or the Wiretap Act4
th
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.Slide32
What is a Wire Tap?Oral communication
Wire Communication
Electronic CommunicationSlide33
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 microphonesSlide34
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.
.Slide35
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
Talking ContentSlide36
What is a Wire Tap?Oral
Wire
3. Electronic Communication
Talking ContentSlide37
Don’t Be a Wire-Tapper!Don’t Tap into:
FaceBook
Messages
Emails
Instant Messages
NOTHING
Get Court ApprovalSlide38
Cell Phone Site LocationWiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and Trace
Pole CamerasSlide39
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. Slide40
GPS Slap On!United States v. Jones
Device was not original to car!
No
Solice
!Slide41
Allstate has recorded over a billon miles of drivingSlide42
Cell Phone Site LocationWiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and Trace
Pole CamerasSlide43
Pen/Trap (record out/in) Telephone Numbers4
th
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. Slide44
Filling The Constitutional Void with Statutory ProtectionsPen/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.
if “information likely to be obtained”
will
be relevant to an on-going
criminal investigation.
≠ Probable Cause!!Slide45
You Can Get Pen/Trap Telephone Numbers
Subpoena and/or Rule 17C OrderSlide46
Cell Phone Site LocationWiretaps
“Slap On” GPS Trackers
Pen Registers/Trap and Trace
Pole CamerasSlide47
Pole CameraUS v. Anderson Bagshaw
, 509 Fed.
Appx
, 396 (6
th
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 CurtilageStream live video via InternetHence UnconstitutionalYet, HarmlessSlide48
Poll Question #3
U.S. v. Anderson
Bagshaw
involved?
Kidnapping?
Drug Distribution Point?
Raising Alpacas?
Political Corruption?
All of the above?Slide49Slide50
Pole CameraQuestions To AskCan 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’s
Curtlage
?Slide51
Electronic SurveillanceIs Fluid & Not Static!!Immediately Do Internet Search
Think About Preservation!
WestLaw
/ Lexis Search
Contact EFF.org
FD.org
Experts!!!
Use Request for Investigation/Expert Funds To Educate CourtSlide52
Question & Answer