Our ever-increasing use of digital technologies has significantly affected how law enforcement agencies and courts interpret the Fourth Amendment’s guarantee of people’s right “to be secure in their persons, houses, papers, and effects.” For most of this nation’s history, an individual’s “papers and effects” only existed in physical form. Telephones, computers, mobile devices, and the internet have added a virtual component to the concept of “papers and effects,” and the extent of the Fourth Amendment’s protections with regard to an individual’s digital information and online activity is an ongoing debate. During the summer of 2016, the U.S. Senate narrowly voted down an effort to amend the Stored Communications Act (SCA), which regulates law enforcement access to various types of digital and telecommunications data. The proposed amendment would have expanded the FBI’s access, in certain circumstances, to “electronic communication transactional records” (ECTRs), a broad category of data that could include web browsing history.
Congress originally enacted the SCA, 18 U.S.C. § 2701 et seq., in 1986, as part of a larger bill known as the Electronic Communications Privacy Act. The law prohibits unauthorized access to various electronic communications and electronic systems, but it requires service providers to disclose information to the FBI for “counterintelligence” purposes. 18 U.S.C. § 2709. This information includes an individual’s “name, address, length of service, and local and long distance toll billing records.” Id.
The FBI must provide a certification to the service provider, commonly known as a national security letter (NSL), which identifies the individual for whom it is seeking records and states that the records “are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” Id. at § 2709(b). The service provider is not obligated to comply if the records sought “solely [involve] activities protected by the First Amendment to the Constitution of the United States.” Id. The service provider may not disclose the FBI’s request to any third party if the FBI determines that doing so would threaten national security or interfere with an ongoing investigation. Id. at § 2709(c).
On June 23, 2016, the U.S. Senate considered the proposed amendment to the SCA. It was introduced as Senate Amendment 4787 to S.Amdt.4685, which was an amendment to an appropriations bill, H.R. 2578. S.Amdt.4787 would strike subsection (b) of 18 U.S.C. § 2709 and replace it with language expanding the FBI’s access to information beyond the specific items currently authorized by that subsection—”name, address,” etc.
The general requirements for an NSL would remain the same under the proposed amendment. A new subsection, (b)(2), would allow the FBI to obtain ECTRs that include IP addresses; “communication addressing, routing, or transmission information”; “means and sources of payment for service (including any card or bank account information)”; and other data. This broad definition of an ECTR, while not including the actual content of emails or other communications, could include web browser history and other personal data. The cloture vote on the amendment was 58 to 38, two votes short of the 60 needed to proceed.
These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.
Michael J. Brown, a West Texas criminal defense attorney, has represented defendants facing state and federal criminal charges since 1992. To schedule a confidential consultation with an experienced criminal justice advocate, contact us today online or at (432) 687-5157.
More Blog Posts:
Appellate Courts Split on Question of Cell Phone Tracking Technology and the Fourth Amendment, Texas Criminal Lawyer Blog, February 26, 2016
Police Apprehend Fugitives by Tracking Use of Online Music, Video Streaming Services, Texas Criminal Lawyer Blog, October 30, 2015
Police Use of Surveillance Technology Without Warrants Prompts Court Challenges, Legislation, Texas Criminal Lawyer Blog, May 15, 2015
Photo credit: Simon Alexandre Clément Denis (J. Paul Getty Museum) [Public domain], via Wikimedia Commons.