I don't think that information transmitted to a third-party is automatically without an expectation of privacy. For example, there's an expectation of privacy in the digits we dial after being connected in a call (PCTDD)- like dialing your account number, routing a call through a calling card company, or routing to a different department/company through the bank's IVR. The government would need to get a warrant to do those searches.
Also, the Supreme Court and other courts have generally protected anonymity on the Internet. That seems to imply an expectation of privacy in e-mail addresses. When we want to post to/. anonymously- isn't that protected? Or, if I'm posting messages related to health, sex, politics, etc, can't I do that anonymously?
Notwithstanding the fact that we're already in a telcomm call on the Internet, I can maybe see how the pen register is analogous to e-mail routed by your ISP, but when it's routed through a third-party like gmail or hotmail, I don't think the government should be able to use the pen register statute to get that information. The same applies for VoIP- it's not the ISP that's actually doing the routing- it's the VoIP service provider. Now, if the government wants to do false friend or pen register analogue at the VoIP or third-party e-mail then fine. I don't think they should be able to be lazy and circumvent the investigatory work simply by saying that someone along the line will use this information for routing. That distinction requires looking into the content of the message at the ISP and then grepping out the potential addressing = a search!
I'd hardly call the "pen register" any kind of warrant. It's a court order that the judge has to issue if the government states that the information likely obtained is relevant to an ongoing criminal investigation. The government does not have to show any probable cause or even suspicion of criminal activity by the person under surveillance. The government uses the "pen register" order to wiretap all kinds of information beyond telephone numbers. While the Patriot Act expanded the pen register to any kind of electronic routing information, the government has been getting creative with what is routing information. They've been calling content information routing information.
The Ninth Circuit recently upheld that the government could use the pen register statute to monitor the e-mail addresses that we use on the Internet, who sends us e-mails, the IP addresses that we visit, and the volume of data that we transmit. I don't know about you, but I don't expect the government to do this without first getting a warrant based on probable cause. I don't expect a judge to allow it just because the government thinks that it might be helpful to know my private e-mail addresses or websites that I visit for some investigation (of someone else?).
So where is the line between addressing and content information (i.e., pen register court order v. wiretap warrant)? It's just going to get harder and harder to draw that line with emerging telecom technologies. I think we're already in a telephone call when we use VoIP or anything else so the government should have to get a warrant first. I mean, we make a call to our ISP. Why should the ISP be such a special phone call that the government can wiretap?
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I don't think that information transmitted to a third-party is automatically without an expectation of privacy. For example, there's an expectation of privacy in the digits we dial after being connected in a call (PCTDD)- like dialing your account number, routing a call through a calling card company, or routing to a different department/company through the bank's IVR. The government would need to get a warrant to do those searches.
Also, the Supreme Court and other courts have generally protected anonymity on the Internet. That seems to imply an expectation of privacy in e-mail addresses. When we want to post to
Notwithstanding the fact that we're already in a telcomm call on the Internet, I can maybe see how the pen register is analogous to e-mail routed by your ISP, but when it's routed through a third-party like gmail or hotmail, I don't think the government should be able to use the pen register statute to get that information. The same applies for VoIP- it's not the ISP that's actually doing the routing- it's the VoIP service provider. Now, if the government wants to do false friend or pen register analogue at the VoIP or third-party e-mail then fine. I don't think they should be able to be lazy and circumvent the investigatory work simply by saying that someone along the line will use this information for routing. That distinction requires looking into the content of the message at the ISP and then grepping out the potential addressing = a search!
I'd hardly call the "pen register" any kind of warrant. It's a court order that the judge has to issue if the government states that the information likely obtained is relevant to an ongoing criminal investigation. The government does not have to show any probable cause or even suspicion of criminal activity by the person under surveillance. The government uses the "pen register" order to wiretap all kinds of information beyond telephone numbers. While the Patriot Act expanded the pen register to any kind of electronic routing information, the government has been getting creative with what is routing information. They've been calling content information routing information.
The Ninth Circuit recently upheld that the government could use the pen register statute to monitor the e-mail addresses that we use on the Internet, who sends us e-mails, the IP addresses that we visit, and the volume of data that we transmit. I don't know about you, but I don't expect the government to do this without first getting a warrant based on probable cause. I don't expect a judge to allow it just because the government thinks that it might be helpful to know my private e-mail addresses or websites that I visit for some investigation (of someone else?).
So where is the line between addressing and content information (i.e., pen register court order v. wiretap warrant)? It's just going to get harder and harder to draw that line with emerging telecom technologies. I think we're already in a telephone call when we use VoIP or anything else so the government should have to get a warrant first. I mean, we make a call to our ISP. Why should the ISP be such a special phone call that the government can wiretap?