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Case [1] DPrivHastings Sample Student Answers [October 28, 2010]  

CASE 1: Origins of Data Privacy Issue: Whether compelling (via fines and imprisonment) a person to provide: given and family name, place and date of birth, gender, address, phone number, e-mail address, country of origin, race and ethnicity, profession, current occupation, and education, as well as any and all membership in religious and political organizations—for the purposes of: (1) local planning by municipalities; (2) intelligence on Muslim populations; (3) statistical analysis – I. a violation of any part of the U.S. Constitution? II. a violation of the German Constitution? III. Whether redacting the names would have resolved the above issues? Rules: I.

II.

III.

IV.

V.

VI.

VII.

U.S. Constitution’s 4th Amendment: [from Morales v. Daley]: “To determine whether a particular governmental action violates Fourth Amendment, court must first inquire whether action was regarded as an unlawful search or seizure under common law when Amendment was framed; if that inquiry fails to answer question, next step is to evaluate search or seizure at issue under traditional standards of reasonableness by assessing, on one hand, degree to which it intrudes upon an individual's privacy and, on the other, degree to which it is needed for promotion of legitimate governmental interests. U.S. Constitution’s Article 1, § 2; Amendment 5; 13 U.S.C.A. § 1; Voting Rights Act of 1965, 2* 2; 42 U.S.C.A. § 1973: [from Morales v. Daley]: “Census Bureau's requiring decennial questionnaire recipients to self-classify racially or ethnically, justified in order to assess ``racial disparities in health and environmental risks'' and for state legislative redistricting, comported with equal protection, even though some recipients found questions intrusive and open to future abuse; Bureau possessed delegated authority to decide necessary and proper questions, and act of posing questions constituted data collection only, not disparate treatment.” U.S. Constitution’s Article 1, § 2; Amendment 1; 13 U.S.C.A. § 9: [from Morales v. Daley]: “First Amendment protection against compelled speech did not preclude Census Bureau's requiring decennial questionnaire recipients to self-classify racially or ethnically; recipients were not asked to disseminate publicly a message with which they disagreed, and recipients' concerns that data would not be used purely for statistical purposes and would not be held confidential were inchoate and insufficient to implicate compelled speech protection.” U.S. Constitutional Amendment 1: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” German Constitution’s Article 1. 2, 4, 5: [from handout and from www.btg-bestellservice.de/pdf/80201000.pdf]: Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law. Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable. The undisturbed practice of religion shall be guaranteed. Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. German Constitution’s Article 13: [from handout and from www.btg-bestellservice.de/pdf/80201000.pdf]: The home is inviolable. Searches may be authorised only by a judge or, when time is of the essence, by other authorities designated by the laws, and may be carried out only in the manner therein prescribed. If particular facts justify the suspicion that any person has committed an especially serious crime specifically defined by a law, technical means of acoustical surveillance of any home in which the suspect is supposedly staying may be employed pursuant to judicial order for the purpose of prosecuting the offence, provided that alternative methods of investigating the matter would be disproportionately difficult or unproductive. The authorisation shall be for a limited time. The order shall be issued by a panel composed of three judges. When time is of the essence, it may also be issued by a single judge. To avert acute dangers to public safety, especially dangers to life or to the public, technical means of surveillance of the home may be employed only pursuant to judicial order. When time is of the essence, such measures may also be ordered by other authorities designated by a law; a judicial decision shall subsequently be obtained without delay. If technical means are contemplated solely for the protection of persons officially deployed in a home, the measure may be ordered by an authority designated by a law. The information thereby obtained may be otherwise used only for purposes of criminal prosecution or to avert danger and only if the legality of the measure has been previously determined by a judge; when time is of the essence, a judicial decision shall subsequently be obtained without delay. German Constitution’s Article 140 and 136: [from handout and from www.btg-bestellservice.de/pdf/80201000.pdf]: The provisions 136... shall be an integral part of this Basic Law. No person shall be required to disclose his religious convictions. The authorities shall have the right to inquire into a person’s membership in a religious society only to the extent that rights or duties depend upon it or that a statistical survey mandated by a law so requires. U.S. Constitution’s 14th Amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Analyses and Conclusions: SFODMS/6610653.  1    

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Case [1] DPrivHastings Sample Student Answers [October 28, 2010]   I.

U.S. Constitution’s 4th Amendment: “...on one hand, degree to which it intrudes upon an individual's privacy and, on the other, degree to which it is needed for promotion of legitimate governmental interests...” •

• •

II.

U.S. Constitution’s Article 1, § 2; Amendment 5; 13 U.S.C.A. § 1; Voting Rights Act of 1965, 2* 2; 42 U.S.C.A. § 1973: [from Morales v. Daley]: “...even though some recipients found questions intrusive and open to future abuse; Bureau possessed delegated authority to decide necessary and proper questions, and act of posing questions constituted data collection only, not disparate treatment.” • •

III.

The Census Act 2010 might have the unintended consequence of making Muslim communities more wary about practicing their religion freely or openly. However, this would be a difficult argument to make against the Act, since the legislature purportedly intended only to collect information and not to act in any way to restrict the rights or religious practice of the Muslim community. On the other hand, as mentioned previously, this idea of benign “data collection” flies in the face of the basis for the law in post-9/11 national security needs. The Act does impede the constitutional right of every person to “freely express and disseminate his opinions...” in that information that the government has taken a particular interest in collecting on one’s associations, opinions, etc., engenders fear, anxiety, and suspicion in the populace as to what the government could possibly need all this information for. Therefore, collecting such an extensive databank of personal information (information for which which society can reasonably expect privacy) is tantamount to censorship. At the very least, it impedes on one’s sense of “freedom” in personal expression and association.

German Constitution’s Article 13: “...If particular facts justify the suspicion that any person has committed an especially serious crime specifically defined by a law, technical means of acoustical surveillance of any home in which the suspect is supposedly staying may be employed pursuant to judicial order for the purpose of prosecuting the offence, provided that alternative methods of investigating the matter would be disproportionately difficult or unproductive...” •

SFODMS/6610653.  1    

Recipients were not asked according to the facts to disseminate publicly a message with which they disagreed. Nor were they given any reason to believe their information would not be held confidential. Therefore, the concerns here also appear “inchoate and insufficient to implicate compelled speech protection.”

German Constitution’s Article 1. 2, 4, 5: [from handout and from www.btg-bestellservice.de/pdf/80201000.pdf]: “Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable. The undisturbed practice of religion shall be guaranteed. Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources.” •

V.

The government’s ostensible intent to obtain this information for the purpose of post-9/11 security needs, and the government’s claim that its actions are both necessary and proper to those security needs, is consistent with this rule. However, the government’s purported intent to use this information for intelligence specifically on the Muslim community does in fact constitute disparate treatment, and the idea that this is for “data collection only” contradicts the claim that it is also for post-9/11 security needs. Therefore, without further clarity upon all these points, the Census Act 2010 is not Constitutional under the U.S. Constitution and U.S. law.

U.S. Constitution’s Article 1, § 2; Amendment 1; 13 U.S.C.A. § 9: “First Amendment protection against compelled speech did not preclude Census Bureau's requiring decennial questionnaire recipients to self-classify racially or ethnically; recipients were not asked to disseminate publicly a message with which they disagreed, and recipients' concerns that data would not be used purely for statistical purposes and would not be held confidential were inchoate and insufficient to implicate compelled speech protection.” •

IV.

Legitimate government interest is purportedly supported by the post-9/11 need to “gain more knowledge about the Arab community in the U.S.” However there is only an indirect connection between “gaining information” and the national security implied by reference to 9/11. In order for the interest in information to be legitimate, this connection will need to be made more clear. Degree it intrudes on individual’s privacy: Strong argument that it intrudes rather severely, since the information required is rather extensive. Degree this measure is needed in order to promote the government interest listed above: this is highly questionable, in that the connection between the government’s obtaining this information and national security is not at all clear. More clarity is needed on the precise nature of this connection in order for the government to justify such a broad statement.

There are no particular facts that explain on what basis the government has focused its attention on all Muslims and people originating from Middle East Countries. While the connection between terrorist attacks and such a wide sweep of people may seem obvious to the general public, we hold the government to a higher standard before subjecting people to such surveillance, one of which is that the particular subjects of surveillance be under 2  


Case [1] DPrivHastings Sample Student Answers [October 28, 2010]  

VI.

German Constitution’s Article 140 and 136: The provisions 136... shall be an integral part of this Basic Law. No person shall be required to disclose his religious convictions. The authorities shall have the right to inquire into a person’s membership in a religious society only to the extent that rights or duties depend upon it or that a statistical survey mandated by a law so requires. • •

VII.

suspicion of having committed an especially serious crime. The government has no evidence justifying suspicion of every Muslim or every person from a Middle East country for having committed a crime. In fact, it would seem from the facts that the government is in fact intending to collect this data for the very purpose of being able to find evidence to support heretofore unfounded suspicions. There would also seem to be a violation of Article 13’s requirement that “alternative methods .. would be disproportionately difficult or unproductive.” It would be very difficult to believe that this is the least intrusive means available to the government to locate terrorist activity, particularly since terrorists are such a small minority of Muslims and people originating from Middle East countries.

Religious freedom is integral to the German Constitution, as is the individual freedom from disclosure of religious convictions. While the Act does not specifically ask for religious affiliation, it does demand information that can effectively act as a proxy for religion—including country of origin, race, and ethnicity. However, Article 140&136 do allow an exception for a statistical survey mandated by law. Therefore, since the census is mandated by law, it would seem this Act does not violate the German Constitution after all.

U.S. Constitution’s 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” • •

This Act does seem to abridge the privileges and immunities of citizens who will be under closer scrutiny – namely, those who are in a Muslim community or from a Middle East country. And Muslim/Middle East communities do appear to be deprived of property (their personal information) without due process of law. Then again, they are not being deprived of their personal property. While they have to provide the information, it still remains their own information, and the government does not purport to be using that information for anything but data collection. Therefore, the property argument is a tenuous one at best.

** As for the issue of whether the redaction of the names would resolve all of the above concerns, I think it would, since information or data is only “personal” to the degree it is associated with one’s name, or identity, as an individual. If the information is not associated with one’s identity, then it is just information. However, on the other hand, sometimes information that is detailed might identify an individual even without their name. There is a strong argument to be made here that once you gather date of birth, gender, address, phone, email address, country of origin, race, ethnicity, profession, current occupation, and education, you don’t even need the name anymore! All this information could only point to one person. So, the redaction is pointless. Therefore, I conclude that NO, it does not resolve the above concerns at all.

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Case [1] DPrivHastings Sample Student Answers [October 28, 2010]  

CASE 2: Warnings and Publications Issue: Whether the police’s informing Smith’s neighbors that he was a communist (regardless of whether or not this is true) was: I. a violation of any part of the U.S. Constitution or California law? II. What remedies are available in the U.S.? III. a violation of any part of any part of the German Constitution or specifically of (Bavarian) law, if this same scenario were to occur in Bavaria? Rules: I. II.

III.

IV.

Bavaria Police Act: [from handout]: “Police may take necessary measures to fend a particular danger for public security or order off, unless Art 12 to 48 govern competences of Police specifically.” German Constitution’s Article 1, 2, and 5: [from handout and from www.btg-bestellservice.de/pdf/80201000.pdf]: Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law. Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. 42 U.S.C. § 1983: [from “Civil action for deprivation of rights”]: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” U.S. Constitution’s 14th Amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [from Doe v. Barrington]: “Fourteenth Amendment [protection of] privacy interest against disclosure of personal matters protected family from government disclosure of husband/father’s infection with Acquired Immune Deficiency Syndrome (AIDS) virus, which fact had been voluntarily disclosed by husband/father at time of his arrest.” “Person’s privacy interest in medical information and records is not absolute, and such interest must be weighed against societal interest in disclosure.” “Government’s interest in disclosure of fact that citizen was infected with AIDS virus did not outweigh substantial privacy interest involved; at time police officer publicly disclosed fact that citizen was infected, medical evidence established that virus could not be transmitted by casual contact and there had not even been such contact with those to whom disclosure was made.”

Analyses and Conclusions: I.

Bavaria Police Act: [from handout]: “Police may take necessary measures to fend a particular danger for public security or order off, unless Art 12 to 48 govern competences of Police specifically.” •

II.

German Constitution’s Article 1, 2, and 5: Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. •

SFODMS/6610653.  1    

The police were concerned about Mr. Smith’s threat to the community as a communist, and if we take this in the context of the red scare, then they could easily argue that this was a necessary measure to fend of a particular danger. The counter-argument, of course, would be that every idea can potentially be a scare. Where does one draw the line? If every scare were to be allowed to justify violations of privacy, then there would be no privacy left to speak of.

The police’s actions effectively restricted Mr. Smith’s freedom, as well as his human dignity, and his right to the free development of his personality, which is demonstrated by the neighborhood’s rejection of Mr. Smith upon 4  


Case [1] DPrivHastings Sample Student Answers [October 28, 2010]   learning he is a communist, as well as his suffering harassment, discrimination, and humiliation. He was forced to move to another town. So much for community, peace, and justice in the world. III.

42 U.S.C. § 1983: “...subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable ...” •

IV.

The police’s actions resulted in the Smith family’s being deprived of their home in the community (property), their right to be free from discrimination and harassment (14th Amendment) or equal protection, and his right to free speech and association (1st Amendment). Therefore, Mr. Smith does have a claim against the U.S. Government.

U.S. Constitution’s 14th Amendment: “Government’s interest in disclosure of fact ... [must] outweigh substantial privacy interest involved... ” •

The government interest here in security may be seen outweigh the privacy interest if one uses the language of the red scare and Armageddon. However, all these arguments can be countered by the argument that notifying a community that there is a fifth column among them is more likely to inspire chaos and pandemonium – a security threat in itself—than it is to effectively contain that threat. Therefore, I do not believe the government interest in security here outweighs the privacy interest. The government itself has a privacy interest in holding Mr. Smith’s communism secret from his community as much as he does, though for different reasons.

** As to what remedies are available in the U.S.... I’m not sure... [need help].

SFODMS/6610653.  1    

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Case [1] DPrivHastings Sample Student Answers [October 28, 2010]  

SFODMS/6610653.  1    

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Case [1] DPrivHastings Sample Student Answers [October 28, 2010]  

CASE 3: E-mail Surveillance and Interception Issue: Whether the federal agents’ seizure and delayed notice was: I. a violation of any part of the U.S. Constitution or U.S. law? II. Whether Pearce can prevent further seizures? III. a violation of any part of the German Constitution or German law? Rules: I.

II.

III.

IV.

SFODMS/6610653.  1    

18 U.S.C. 2701: “(a) Offense.--Except as provided in subsection (c) of this section whoever-- (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section. (b) Punishment.--The punishment for an offense under subsection (a) of this section is-- (1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, or in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or any State-- (A) a fine under this title or imprisonment for not more than 5 years, or both, in the case of a first offense under this subparagraph; and (B) a fine under this title or imprisonment for not more than 10 years, or both, for any subsequent offense under this subparagraph; and (2) in any other case-(A) a fine under this title or imprisonment for not more than 1 year or both, in the case of a first offense under this paragraph; and 18 U.S.C.A. § 2701 Page 1 © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. (B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under this subparagraph that occurs after a conviction of another offense under this section. (c) Exceptions.--Subsection (a) of this section does not apply with respect to conduct authorized-- (1) by the person or entity providing a wire or electronic communications service; (2) by a user of that service with respect to a communication of or intended for that user; or (3) in section 2703, 2704 or 2518 of this title. German Constitution’s Articles 1, 2, 10: [from handout and from www.btg-bestellservice.de/pdf/80201000.pdf]: Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law. Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. The privacy of correspondence, posts and telecommunications shall be inviolable. Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature. German Code of Criminal Procedure: [from handout]: “Objects which may be of importance as evidence for the investigation shall be impounded or otherwise secured. Such objects shall be seized if in the custody of a person and not surrendered voluntarily. Seizure may be ordered only by the judge and, in exigent circumstances, by the public prosecution office and the officials assisting it... Seizure pursuant to Section 97 subsection (5), second sentence, in the premises of an editorial office, publishing house, printing works or broadcasting company may be ordered only by the court. An official who has seized an object without a judicial order shall apply for judicial approval within 3 days if neither the person concerned nor an adult relative was present at the time of the seizure, or if the person concerned and, if he was absent, an adult relative of that person expressly objected to the seizure. The person concerned may at any time apply for a judicial decision. As long as no public charges have been preferred, the decision shall be made by the court of competency pursuant to Section 162 subsection (1). Once public charges have been preferred, the decision shall be made by the court dealing with the matter. The person concerned may also submit the application to the Local Court in whose district the seizure took place, which shall then forward the application to the competent court. The person concerned shall be instructed as to his rights. Where after public charges have been preferred, the public prosecution office or one of the officials assisting has effected seizure, the court shall be notified of the seizure within 3 days; the objects seized shall be put at its disposal. U.S. Constitution’s Amendment 4: [from Warshak]: “Criminal suspect who faced imminent threat of injury from government’s future seizure of his e-mails that would be redressed by injunction barring government from repeating its allegedly unconstitutional conduct of seizing e-mails without warrant or notice pursuant to Stored Communications Act (SCA) had standing to assert his claims for injunctive relief against government.” “Criminal suspect showed sufficiently imminent threat of future injury to satisfy injury-in-fact element of standing in seeking injunctive relief barring government from seizing his e-mails, given government’s past seizure of e-mails, ongoing nature of investigation against suspect, and government policy of seizing e-mails without a warrant or notice to account holder pursuant to Stored Communications Act (SCA).” “[The] principle that subpoenas are analyzed only under the Fourth Amendment’s general reasonableness standard extends to subpoenas to third parties, or entities other than the subject of the investigation.” “[The] Party challenging third-party subpoena has standing to dispute its issuance on Fourth Amendment grounds if he can demonstrate that he had a legitimate expectation of privacy attaching to the records obtained.” “When a party challenging disclosure made as a result of third-party subpoena on Fourth Amendment grounds has voluntarily disclosed his records to a third party, he maintains no expectation of privacy in the disclosure vis-a-vis that individual, and assumes the risk of that person disclosing, or being compelled to disclose, the shared information to the authorities.” “If e-mail user does not maintain a reasonable expectation of privacy in his emails vis-a-vis internet service provider 7  


Case [1] DPrivHastings Sample Student Answers [October 28, 2010]  

V.

(ISP), government must meet only the reasonableness standard applicable to compelled disclosures to obtain contents of emails from ISP pursuant to Stored Communications Act (SCA), but if e-mail user does maintain a reasonable expectation of privacy in the content of e-mails with respect to ISP, then Fourth Amendment’s probable cause standard controls e-mail seizure.” “Although, under Fourth Amendment, government can compel disclosure of a shared communication from the party with whom it was shared, it can only compel disclosure of the specific information to which the subject of its compulsion has been granted access; it cannot bootstrap an intermediary’s limited access to one part of the communication to allow it access to another part.” “Fourth Amendment’s reasonable-expectation-of-privacy inquiry embraces two discrete questions: whether the individual, by his conduct, has exhibited an actual expectation of privacy, in that the individual has shown that he seeks to preserve something as private, and whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable, in that it is justifiable under the circumstances when viewed objectively.” “For purposes of Fourth Amendment protection applicable to contents of e-mail communications, individuals maintain a reasonable expectation of privacy in emails that are stored with, or sent or received through, a commercial internet service provider (ISP).” “Assuming that internet service providers (ISPs) regularly screen their users’ emails for viruses, spam, and child pornography, such processes do not waive users’ expectation of privacy in content of e-mails sent through ISPs for purposes of Fourth Amendment protections.” “When third party having custody of user’s e-mails is not expected to access those e-mails in the normal course of business, user maintains reasonable expectation of privacy in contents of e-mails, and subpoenaing third party with mere custody over e-mails is insufficient to trump Fourth Amendment warrant requirement.” “If e-mails are seized pursuant to a warrant, the Fourth Amendment’s particularity requirement necessitates that the scope of the search be designed to target e-mails which could reasonably be believed to have some connection to the alleged crime being investigated.” German Law: [from Bundesverfassungsgericht]: “... Although these measures interfere with the constitutionally guaranteed secrecy of telecommunications as enshrined in Article 10.1 of the Basic Law (Grundgesetz – GG), the general provisions governing criminal procedure under §§ 94 et seq. of the Code of Criminal Procedure (Strafprozessordnung – StPO) justify that interference with the secrecy of telecommunications if the principle of proportionality and objective requirements regarding the corresponding form of the criminal proceedings have been met.” “ The account holder has no technical means of preventing the provider from passing the emails on to third parties. This lack of control for technical reasons justifies the special need for protection by means of the secrecy of telecommunications, which aims to counteract those threats to confidentiality which result from the use of a means of communication which is easier for the state to access than direct communication between physically present individuals. That applies regardless of whether an email is saved temporarily or permanently on the provider’s mail server. The fact that no dynamic telecommunications process takes place in the period in which the emails "lie dormant" on the provider’s mail server poses no obstacle to the protection under Article 10.1 GG being afforded.” “This particular instance of interference on the basis of §§ 94 et seq. StPO was also proportional. Account must already be taken of the protection of the secrecy of telecommunications when issuing the search warrant, insofar as the concrete circumstances allow that without the purpose of the investigations being jeopardised, by the inclusion of specifications which restrict the evidence to what is necessary.” “Where there are factual indications that access to stored telecommunications covers content which belongs to the core area of private life, such access must not occur. It must be ensured that content of a highly personal nature is not saved and utilised, but is immediately deleted in those cases in which it has, by way of exception, been collated.” “The effective protection of substantive fundamental rights also requires that the form of the proceedings be appropriate. Where emails are seized from an inbox on a provider’s mail server, the email account holders must always first be informed by the criminal prosecution authorities so that they can at least exercise their rights whilst their emails are being examined. Where emails saved on a provider’s mail server are, by way of exception, seized without the knowledge of the email account holder, he or she is to be informed of that fact as early as the effective fulfilment of the purpose of the investigations permits.” “Where emails are saved and analysed by the investigating authorities, it may be necessary to inform the affected persons of the data acquisition in order to enable them to prevent their fundamental rights possibly being compromised. This requirement is met by means of the special provisions governing criminal procedure regarding information under ... The delimited purpose of the data acquisition in principle necessitates the return or deletion of all those emails which were copied but which were not required to achieve the intended objective.”

Analyses and Conclusions: I.

18 U.S.C. 2701: “(a) Offense.--Except as provided in subsection (c) of this section whoever-- (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.” • •

II.

German Constitution’s Articles 1, 2, 10: [from handout and from www.btg-bestellservice.de/pdf/80201000.pdf]: Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The privacy of correspondence, posts and telecommunications shall be inviolable. Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature. •

SFODMS/6610653.  1    

The federal agents obtained a court order for the seizure, therefore their access was not without authorization. Nor did they exceed the authorization of the court order. Therefore, the seizure does appear to have been in accordance with U.S. law, under 18 U.S.C. 2701.

The court order does make the seizure pursuant to a law (the German Code of Criminal Procedure, Section 94) and therefore the seizure, per say, is not against German constitutional requirements. 8  


Case [1] DPrivHastings Sample Student Answers [October 28, 2010]   •

III.

German Code of Criminal Procedure: [from handout]: “Objects which may be of importance as evidence for the investigation shall be impounded or otherwise secured. Such objects shall be seized if in the custody of a person and not surrendered voluntarily. Seizure may be ordered only by the judge...The person concerned shall be instructed as to his rights....” •

IV.

The federal agents did target emails which could reasonably be believed to have some connection to the alleged crime being investigated, in that they selected dates during which he was believed to have engaged in the Ponzi scheme. While Pearce could be argued to have a reasonable expectation of privacy with his email, and his subjective expectation of privacy with regard to his email is one that society is prepared to recognize as reasonable, the government can still compel disclosure of specific information when that information is for a legitimate government purpose. Prosecuting fraud and Ponzi schemes is a compelling government interest, in that the government has an interest in protecting its citizens from being victims of online criminal schemes. A government that fails to so protect its citizens is one that eventually loses its legitimacy, and one that is subject to insurrection. Furthermore, Pearce checked the box indicating that he had read and understood the privacy policy which specifically states that Bahtoo “may share personal information... if.. it is necessary in order to investigate, prevent, or take action regarding illegal activities,...” etc. Additionally, it is not clear what alternative means there are available to the government to obtain evidence necessary for the prosecution’s case besides seizing the emails, as they have done. Pearce’s concerns over the emails relating to his lover could be easily addressed by the 4th Amendment’s limitation of the scope of the search to those emails which have some connection to the alleged crime being investigated. All others could be ordered deleted and not admissible.

German Law: [from Bundesverfassungsgericht]: “... Although these measures interfere with the constitutionally guaranteed secrecy of telecommunications as enshrined in Article 10.1 of the Basic Law (Grundgesetz – GG), the general provisions governing criminal procedure under §§ 94 et seq. of the Code of Criminal Procedure (Strafprozessordnung – StPO) justify that interference with the secrecy of telecommunications if the principle of proportionality and objective requirements regarding the corresponding form of the criminal proceedings have been met.” “The effective protection of substantive fundamental rights also requires that the form of the proceedings be appropriate. Where emails are seized from an inbox on a provider’s mail server, the email account holders must always first be informed by the criminal prosecution authorities so that they can at least exercise their rights whilst their emails are being examined... The delimited purpose of the data acquisition in principle necessitates the return or deletion of all those emails which were copied but which were not required to achieve the intended objective.” •

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While the seizure here does appear to abide by the German Code of Criminal Procedure in that the information obtained was of importance as evidence for a criminal investigation, the person concerned was NOT instructed as to his rights. In fact, he received no notice for 3 months that there even was a seizure. Therefore, it would seem that the seizure was in violation of the German Code of Criminal Procedure. (As well as in violation of the spirit of Article 10 of the German Constitution—that the “privacy of correspondence, posts and telecommunications shall be inviolable.”

U.S. Constitution’s Amendment 4: [from Warshak]: “[The] Party challenging third-party subpoena has standing to dispute its issuance on Fourth Amendment grounds if he can demonstrate that he had a legitimate expectation of privacy attaching to the records obtained.” “Although, under Fourth Amendment, government can compel disclosure of a shared communication from the party with whom it was shared, it can only compel disclosure of the specific information to which the subject of its compulsion has been granted access; it cannot bootstrap an intermediary’s limited access to one part of the communication to allow it access to another part.” “Fourth Amendment’s reasonable-expectation-of-privacy inquiry embraces two discrete questions: whether the individual, by his conduct, has exhibited an actual expectation of privacy, in that the individual has shown that he seeks to preserve something as private, and whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable, in that it is justifiable under the circumstances when viewed objectively.” “If e-mails are seized pursuant to a warrant, the Fourth Amendment’s particularity requirement necessitates that the scope of the search be designed to target emails which could reasonably be believed to have some connection to the alleged crime being investigated.” •

V.

Under the German Constitution, if the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, Pearce does not need to be informed. Since Pearce was suspected of involvement in a Ponzi scheme of e-mail fraud, this can be seen as a threat to basic order and/or security. Therefore, it does not appear that the government’s failure to inform him was a violation of the German Constitution.

Under German law, it would also appear that the seizure was appropriate, in the interest of criminal prosecution. However, since “the effective protection of substantive fundamental rights also requires that” “the email account holders must always first be informed...”, it would seem that Pearce’s rights were violated under German law. Pearce was not notified in sufficient time to exercise his rights “while the emails are being examined.” Therefore, he does have a claim against the government in regard to the delayed notice, even though the German government would have allowed for the seizure itself.

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Case [1] DPrivHastings Sample Student Answers [October 28, 2010]   **As for whether Pearce can prevent further seizures, assuming it was not legal.... I’m not sure [help please]. Maybe an injunction against the government? But why would he need one? **I also have a question about the different levels of storage (permanent vs. in transit, or stored vs. live) which we discussed in class. The Rule, as we stated it in class is that the government has a higher interest in protecting speech that is stored (high bar for seizure) than speech as it occurs (lower bar for censorship). This is because there is a higher expectation of privacy with stored data than with live data. My question is: Is this a rule we should use? If so, what authority do we cite for it? And, lastly, I’m confused over where to incorporate it into the analysis. Thank you!

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Sample student answer 1