CURRENT LEGAL STANDARDS FOR ACCESS TO PAPERS, RECORDS, AND COMMUNICATIONS

CURRENT LEGAL STANDARDS FOR ACCESS TO PAPERS, RECORDS, AND COMMUNICATIONS
What Information Can the Government Get About You, and How Can They Get It? Version 2.2

Green = strong privacy protection Amber = modest or intermediate protection Red = little or no protection		For real-time interception, does gov't need a court order issued on (high) probable cause standard ?	For immediate seizure, does gov't need a warrant issued on (high) probable cause standard ?	Can gov't use a subpoena, issued on (low) relevance standard ?	At time of search/subpoena, must gov't give notice to the customer or subscriber to whom the information pertains ?	Origin of rule
T R A D I T I O N A L R E C O R D S	Papers in your home or office (record subject = record holder)	N/A	YES, 4th Amendment	YES	YES	Bill of Rights, 1791
		N/A	CAVEAT: Employee rights are limited	CAVEAT: Employee rights are limited	CAVEAT: Some courts allow "sneak & peak"	Bill of Rights, 1791
	Electronic data stored on your hard drive or disks at home or office (record subject = record holder)	N/A	YES, 4th Amendment	YES	YES	Bill of Rights, 1791
		N/A	CAVEAT: Employee rights are limited	CAVEAT: Employee rights are limited	CAVEAT: Some courts allow "sneak & peak"	Bill of Rights, 1791
	Voice in transit (face to face or phone calls)	YES, 18 USC 2510-22 ("Title III")	N/A	N/A	NO, notice is always delayed	Title III, 1968
		For real-time interception, does gov't need a court order issued on (high) probable cause standard ?	For immediate seizure, does gov't need a warrant issued on (high) probable cause standard ?	Can gov't use a subpoena, issued on (low) relevance standard ?	At time of search/subpoena, must gov't give notice to the customer or subscriber to whom the information pertains ?	Origin of rule
E M A I L E M A I L E M A I L E M A I L	Electronic communications (e-mail or other data) in transit (grabbing bits off the wire)	YES, 18 USC 2510-22 ("Title III")	N/A	N/A	NO, notice is always delayed	ECPA, 1968
	Unopened electronic communications (e-mail or other data) in storage with provider of electronic communications service to the public incident to transmission for 180 days or less	N/A	YES, 18 USC 2703(a)	NO	NO, 18 USC 2705 (b)	ECPA, 1986
		N/A	CAVEAT: Employee rights in e-mail on company system may be limited	NO	NO, 18 USC 2705 (b)	ECPA, 1986
	Opened e-mail maintained for 180 days or less by provider of electronic communications service to the public	N/A	YES, 18 USC 2703(a), but may not be necessary	? Some argue YES, that 2703(b) applies	NO, if warrant is used; YES, but can be DELAYED, if subpoena is used	ECPA, 1986
	Opened or unopened electronic communications in storage for more than 180 days with provider of service to the public	N/A	NO, warrant can be used, but subpoena suffices 18 USC 2703(b)	YES, 18 USC 2703(b)	NO, if warrant is used; YES, but can be DELAYED, if subpoena is used	ECPA, 1986
		For real-time interception, does gov't need a court order issued on (high) probable cause standard ?	For immediate seizure, does gov't need a warrant issued on (high) probable cause standard ?	Can gov't use a subpoena, issued on (low) relevance standard ?	At time of search/subpoena, must gov't give notice to the customer or subscriber to whom the information pertains ?	Origin of rule
T H I R D P A R T Y / N E T W O R K E D	Transactional records identifying subscribers and telephone toll records	N/A	NO, warrant can be used, but subpoena suffices 18 USC 2703(c)	YES, 18 USC 2703(c); cf. 18 USC 3121 (pen register statute for real-time telephone dialing info)	Notice not required, not even delayed notice	1979, 1986
	More revealing transactional records (e-mail logs, cell phone location info)	N/A	NO, court order issued on relevance std under 2703 (d) is sufficient	NO	NO	CALEA, 1994
	Electronic data in storage on remote server, with person who provides "remote computing service" to the public	N/A	NO, warrant can be used, but subpoena suffices 18 USC 2703(b)	YES, 18 USC 2703(b)	NO, if warrant is used; YES, but can be DELAYED, if subpoena is used	ECPA, 1986
	Bank records in hands of bank	N/A	Warrant can be used, but subpoena suffices	YES	Notice can be delayed	1976, US v. Miller, Right to Financial Privacy Act
	There are special laws for some records — video, cable, educational, etc..	N/A	Selected Records — Warrant can be used, but subpoena suffices	YES	Varies	Various
		N/A	Cable Viewing — Clear and convincing evidence, reasonable suspicion	NO	YES	47 USC 551
	Regular mail, email, or papers held by intended recipient — treated as ordinary business records	N/A	NO, warrant can be used,but recipient can voluntarily disclose too	YES, but recipient can voluntarily disclose too	NO	1976, US v. Miller
	Escrowed keys or other decryption assistance	Court order works, 18 USC 2518(4), but agent can voluntarily disclose too	NO, warrant can be used, but key agent can voluntarily disclose too	YES, but key agent can voluntarily disclose too	NO	1976, US v. Miller
	Store purchases; medical records; hotel and car rental records; networked financial data; etc.	N/A	NO, warrant can be used, but record holder can voluntarily disclose too	YES, but record holder can voluntarily disclose too	NO	1976, US v. Miller
		For real-time interception, does gov't need a court order issued on (high) probable cause standard ?	For immediate seizure, does gov't need a warrant issued on (high) probable cause standard ?	Can gov't use a subpoena, issued on (low) relevance standard ?	At time of search/subpoena, must gov't give notice to the customer or subscriber to whom the information pertains ?	Origin of rule
O V E R S E A S	Voice, e-mail, or data intercepted in transit or seized from storage medium overseas	N/A Title III has no extraterritorial effect	N/A 4th Amendment warrant clause has no extraterritorial effect	N/A	NO	1968, 1990

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