2004 United States v. Councilman email privacy case

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Wiretap Overview

Overview Government Surveillance of Telephones and the Internet

Search & Seizure
The Dept. of Justice has written a manual on the rules for seizing evidence stored in computers. "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations"

Carnivore
Carnivore is a computer program designed by the FBI to intercept Internet communications.

CDT's Carnivore Reference Page

CALEA
The Communications Assistance for Law Enforcement Act of 1994 (CALEA) was supposed to preserve law enforcement surveillance capabilities in the face of technological chage, but the FBI has been trying to use it to claim control over the design of the telephone network to enhance its surveillance powers.

CDT's CALEA Reference Page

Roving Wiretaps
A roving wiretap order allows the government to tap any phone lines that a suspect may use.

-Congress Passes "Roving Wiretaps," Expands Surveillance Authority
-E-RIGHTS Bill (S. 854) tightens standard for roving taps

Echelon
Echelon is a secretive international surveillance system that operates outside of the normal limitations of the Constitution.

International Monitoring by US government

FIDNet
FIDNet is a comprehensive monitoring system intended to protect government computers, but it raises serious privacy concerns.

CDT's FIDNet Reference Page

CESA
CESA was a bill proposed by the Clinton Administration that would allow the government to seize decryption keys without notice to the user.

CDT's CESA Reference Page

Articles

Jerry Berman and Lara Flint, Guiding Lights: Intelligence Oversight and Control for the Challenge of Terrorism Criminal Justice Ethics, Vol. 22, No. 1 (Winter/Spring, 2003)
Critical Infrastructure Protection: Threats to Privacy and Other Civil Liberties and Concerns with Government Mandates on Industry DePaul Business Law Journal (1999-2000)
Communications Privacy In The Digital Age: Revitalizing The Federal Wiretap Laws To Enhance Privacy Albany Law Journal of Science & Technology (1997)
CIO Cyberthreat Response and Reporting Guidelines Guidelines for responding to attacks on computer systems endorsed by the F.B.I. and the Secret Service, published in CIOmagazine, a trade publication, Feb 2002.

2004 United States v. Councilman email privacy case

A 2004 court decision has revealed a significant gap in email privacy protection. The U.S. Court of Appeals for the First Circuit ruled in United States v. Councilman that an email provider does not violate federal wiretap laws when it opens emails to its customers and uses them for its own competitive business purposes. Although the decision applies only in a few New England states, its interpretation of Internet privacy laws if more broadly accepted would weaken protections for real-time communications over the Internet.

After CDT and other public interest organizations joined the Justice Department in urging the court to rehear the case, the Court of Appeals announced it will rehear the case en banc.

Policy Post 10.13: Email Privacy Protection Called into Question by Federal Appeals Court Decision, July 30, 2004

Litigation Documents:

DOJ Opening Brief [pdf], Aug. 13, 2003
Councilman Response Brief [pdf], Oct. 8, 2003
DOJ Reply Brief [pdf], Nov. 13, 2003
First Circuit Court of Appeals Decision in United States v. Councilman [pdf], June 30, 2004
DOJ Petition for Rehearing [pdf], Aug. 27, 2004
CDT Amicus Brief in Support of DOJ Petition for Rehearing [pdf], Sept. 2, 2004
First Circuit Court of Appeals Order Granting Rehearing En Banc [ca1.uscourts.gov], Oct. 5, 2004
Supplemental Amicus Brief in Favor of Reversal of CDT and others [pdf], Nov. 12, 2004
Supplemental Amicus Brief in Favor of Reversal of Senator Patrick Leahy [pdf], Nov. 12, 2004

Legislative Efforts to Overturn Councilman:

Email Privacy Act of 2004, H.R. 4956 [thomas.loc.gov]
Email Privacy Protection Act of 2004, H.R. 4977 [thomas.loc.gov]

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