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Abstract:
This article argues that the coming tide of electronic Federal law protects the privacy of transmitted communications under a two-tiered system. The actual contents of communications occupy the first tier, where they enjoy fairly effective protection against disclosure. Communication attributes encompass all of the other information that can be learned about a communication, such as when and where it occurred, to whom and from whom it was sent and how long it lasted. They occupy a lowly second tier, where the protections against disclosure are weak, ambiguous and in some cases non-existent. This bifurcated system becomes increasingly untenable as advances in communications technology such as the Internet expand both the range and quantity of communication attribute data. In this Article, Professor Freiwald explores the history of the two-tiered system, and its persistence after the recent passage of the Digital Telephony Act. She demonstrates that the Act's few provisions designed to improve the privacy of communication attributes will likely prove ineffectual due to their vagueness. Professor Freiwald argues that inadequate information prevents Congress from appreciating the threat to communication attributes and recommends steps to improve that problem. She also recommends that future legislation delineate exactly what information is to be protected, as in the Video Privacy Protection Act of 1988

Abstract:
This Article explores those features of electronic surveillance that have made it challenging to regulate effectively. In balancing interests, lawmakers must create a workable law for an exceedingly complex topic, rein in law enforcement agents without crippling them, and draw a line between prohibited and permitted conduct despite society's ambivalence about surveillance. This Article demonstrates that lawmakers met those challenges when they regulated traditional wiretapping, but they have failed to meet them in the online context. It argues that the law should extend the significant restrictions on wiretapping to online surveillance, just as judges did in the case of video surveillance in the 1980's. The similarities among online surveillance, video surveillance and traditional electronic surveillance strongly suggest that the legal framework that protects the privacy of telephones and private spaces should be extended to protect the privacy of the Internet.

Online surveillance, electronic surveillance, internet, cyberspace, government surveillance, wiretap, email

Abstract:
Almost every day brings reports that Congress is considering new cyberspace-targeted laws and the courts are deciding novel cyberspace legal questions. These developments lend urgency to the question of whether a particular cyberspace legal change should come through operation of new statutes, judicial decisions, or the free market. If we can develop sophisticated analytical methods to evaluate institutional competence in cyberspace, we can vastly improve the development of cyberspace law and public policy.

Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation promotes just such an approach. By describing and extending a recently proposed model of comparative institutional analysis, the article develops a workable framework for assessing the ideal institutional resolution of particular cyberspace legal conflicts. It also offers guidance for what to do when a particular institution has already responded in a way that is suboptimal. For example, it argues that courts should use comparative institutional analysis to guide their interpretation of cyberspace statutes. The article uses the case study of intermediary liability for third party defamation to illustrate the analytical approach. The case study recounts an important cautionary tale of the bad policy that can result when legal decisionmakers ignore comparative institutional analysis, and demonstrates how much the outcome would have been improved had comparative institutional analysis been considered.

Cyberspace, internet, institutional analysis, defamation liability

Abstract:
The question of whether and how the Fourth Amendment regulates government access to stored e-mail remains open and pressing. A panel of the Sixth Circuit recently held in Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), that users generally retain a reasonable expectation of privacy in the e-mails they store with their Internet Service Providers (ISPs), which implies that government agents must generally acquire a warrant before they may compel ISPs to disclose their users' stored e-mails. The Sixth Circuit, however, is reconsidering the case en banc. This Article examines the nature of stored e-mail surveillance and argues that the Sixth Circuit panel was correct to conclude that users retain a reasonable expectation of privacy in the e-mails stored on their ISPs' computers. We consider the Justice Department's arguments to the contrary in depth and show that those arguments seek to extend the relevant precedents well beyond their holdings. More specifically, we argue that there is no compelled disclosure exception to the Fourth Amendment's warrant requirement; that the third party rule derived from United States v. Miller, 425 U.S. 435 (1976), should not be extended to cover e-mail stored with a service provider; and that the terms of the user's relationship with her ISP do not ordinarily weaken the constitutional requirement a warrant for compelled disclosure of stored e-mails. According meaningful judicial oversight to the compelled disclosure of stored e-mails not only would bring the regulation of modern surveillance practices in line with traditional methods such as wiretapping and searching and seizing letters, it would dramatically simplify the application of the relevant federal statute, the Stored Communications Act, to new technologies.

Warshak v. United States, reasonable expectation of privacy, electronic mail, e-mail, surveillance, Internet Service Provider, ISP, warrant, Fourth Amendment, cyberlaw, privacy

Abstract:
Under current doctrine, parties to a communication enjoy robust constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper suggests that the surprising dearth of case law applying the reasonable expectations of privacy test to modern electronic communications reflects courts' discomfort with the test's necessarily normative analysis. That discomfort also likely explains courts' use of shortcuts based on Miller v. United States and Smith v. Maryland in those few cases that have considered online surveillance practices. In particular, the government has argued that a broad third party rule deprives electronic mail of Fourth Amendment protection merely because Internet Service Providers (ISPs) may access those e-mails. Similarly, some courts have denied Fourth Amendment protection to information stored on computer systems other than e-mail contents, by over reading Smith to provide a bright line at contents/non-contents. Both analytical shortcuts not only miss the point of the Katz v. United States, which established the reasonable expectations of privacy test, but also dramatically under protect privacy, with pernicious results. This paper articulates a first principles approach to constitutional protection that focuses instead on the reasons electronic surveillance requires significant judicial oversight. In particular, it argues that electronic surveillance that is intrusive, continuous, indiscriminate, and hidden should be subject to the heightened procedural requirements imposed on government wiretappers. Because surveillance of stored e-mail, such as the type at issue in the case of Warshak v. United States, often shares the characteristics of this four factor test, it should be subject to the highest level of constitutional regulation.

electronic communication, electronic mail, e-mail. Internet Service Provider, ISP, wiretap, surveillance, intrusive, continuous, indiscriminate, hidden, constitution, constitutional, Fourth Amendment, protection, privacy, Miller v. United States, Simith v. Maryland, Warshak v. United States

Abstract:
This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by fifteen professors of electronic privacy and internet law, argues that stored e-mail should be protected by the Fourth Amendment warrant requirement notwithstanding the fact that it is accessible from third party ISPs. The brief refutes the government's argument that its agents must satisfy only a weak subpoena standard before compelling an ISP to disclose stored e-mails, and argues against a broad "third party rule." The 6th Circuit panel expressly referred to the law professors' brief (along with an amicus brief by civil liberties groups) when it held that stored e-mails are properly analogized to telephone calls. It found that when agents conduct electronic surveillance, the same Fourth Amendment protection available under Katz v. United States to telephone calls in transit should extend to e-mails in storage. In addition to containing the brief submitted to the 6th circuit panel, this paper provides legal and factual background to the Warshak case.

Warshak v. United States, reasonable expectation of privacy, electronic mail, e-mail, Internet Service Provider, ISP, warrant, Fourth Amendment, Constitution

Abstract:
A virtual border divides people into two groups: those subject to the Fourth Amendment’s protections when the U.S. government conducts surveillance of their communications and those who are not. The distinction derives from a separation in powers: inside the virtual border, U.S. citizens and others enjoy the extensive oversight of the judiciary of executive branch surveillance. Judges review such surveillance before, during, and after it transpires. Foreign persons subject to surveillance in foreign countries fall within the executive branch’s’ foreign affairs function. However, the virtual border does not exactly match the physical border of the United States. Some people inside the physical border do not benefit from the constitutional protections. Others, outside the physical border do. For example, U.S. Persons inside the physical border may lose the Fourth Amendment protections if they engage in spying for a foreign country. When that happens, such persons are “exiled” over the virtual border to where surveillance takes place in the discretion of the executive branch. Properly understood, the Foreign Intelligence Surveillance Act (“FISA”) represents the procedures by which people may be exiled and thereby deprived of the protections of judicial review. Because the consequences are so significant, the exiling decision itself must be subject to sufficient judicial oversight and review to ensure that executive branch officials not abuse exiling to avoid judicial scrutiny of surveillance. Recent events have shown that the executive branch has sought to exile people over the virtual border without a sufficient showing to a judge to protect constitutional rights. To the extend laws permit such exiling with sufficient justification, oversight, and accountability, they should be fixed.

virtual border, Fourth Amendment, cyberspace, surveillance, wiretap, Foreign Intelligence Surveillance Act, FISA, foreign affairs, constitutional protection