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Electronic Surveillance & Constitutional/Legislative Electronic Surveillance & Constitutional/Legislative

Electronic Surveillance & Constitutional/Legislative - PowerPoint Presentation

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Electronic Surveillance & Constitutional/Legislative - PPT Presentation

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

data phone pen trap phone data trap pen cell amp order gps pole wire location retained privacy telephone slap

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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!!!Slide29
Slide30

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?Slide49
Slide50

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