The Ninth U.S. Circuit Court of Appeals in San Francisco recently issued a ruling that effectively allows the federal government to monitor a suspect’s phone activity and Internet activity without receiving a search warrant. The court’s decision allows the use of “pen registers” — an electronic device able to record all telephone numbers dialed from a landline — without a warrant.
The three-judge panel agreed computer users should be aware they could potentially lose privacy when using the Internet.
Ars Technica used an interesting analogy for the government’s stance on the issue. It’s the same as the “U.S. Postal Service, where anyone can read information on the outside of an envelope but can’t look at the contents.”
In a controversial case in 1979, the U.S. Supreme Court ruled that since phone users dialed phone numbers which are handled by phone companies — considered a third party — and because authorities only used a pen dialer to gather the phone calls made, not what was said in the conversations.
The judge’s decision has received mixed reactions from attorneys and citizens.
The American Civil Liberties Union and Electronic Frontier Foundation (EFF) believe the Court of Appeals gave U.S. law enforcement a surveillance tool which can be used with little regard to check or balances.
Michael Crowley, defense attorney for Dennis Alba, who was convicted of operating a drug lab responsible for making ecstasy, disagreed with the court’s ruling. Police and federal investigators began monitoring Alba’s Internet and e-mails in May in 2001 and then later received a search warrant.
“The great political marketplace of ideas is the Internet, and the government has unbridled access to it,” Crowley said. The court’s decision “further erodes our privacy,” he added.
Alba is currently serving a 30-year prison sentence.
Today’s version of the 1979 case is U.S. v. Forrester — Mark Forrester was Alba’s partner in the ecstasy drug ring. While Alba is waiting in the appeals process, Forrester’s sentence was reversed because of errors made during the trial.
Shaun Martin, professor at the University Of San Diego School Of Law, agrees the decision imposes on privacy issues. “Getting a list of IP addresses reveals far, far more information than a pen register ever would. And if it didn’t, the government wouldn’t be looking to get this information in the first place.”
George Washington University law professor Orin Kerr disagrees, claiming if the surveillance in the case took place at the Internet Service Provider’s office “the result in Forrester is clearly correct.”
Even though the government has another tool to help conduct investigations, the ruling “does not imply that more intrusive techniques or techniques that reveal more content information” can be used, Judge Raymond Fisher said.