Government and Court Access to Private-sector Information
Free Certified Information Privacy Professional/United States practice — 6 questions on Government and Court Access to Private-sector Information, with explanations. No sign-up. Full 12-question mixed test →
A federal prosecutor wants the content of emails that have been sitting in a cloud provider's storage for 200 days, well past the Stored Communications Act's original 180-day threshold. Under current DOJ policy, which reflects the Sixth Circuit's holding in Warshak v. United States, what must the prosecutor obtain to compel disclosure of that content?
Although the SCA as originally written allowed a subpoena (with notice) for content stored more than 180 days, Warshak v. United States (6th Cir. 2010) held that individuals have a Fourth Amendment reasonable expectation of privacy in email content, and DOJ policy nationwide now requires a probable-cause warrant for content regardless of storage duration.
Investigators want a customer's non-content account records from an ISP — specifically IP login history and session timestamps — but they do not have facts rising to probable cause. What is the minimum legal process available under the Stored Communications Act to compel disclosure of these transactional (non-content) records?
Under 18 U.S.C. § 2703(d), non-content transactional records beyond basic subscriber information require a court order issued on a showing of 'specific and articulable facts' that the information is relevant and material to a legitimate investigation — a lower standard than probable cause but higher than a bare subpoena.
An interconnected VoIP provider argues it should be exempt from building lawful-intercept capability because it is an internet application, not a traditional telephone carrier. Based on the FCC's 2005 order interpreting CALEA (upheld in American Council on Education v. FCC), is this argument correct?
The FCC's 2005 First Report and Order extended CALEA's interception-capability requirements beyond traditional telecom carriers to facilities-based broadband internet access providers and interconnected VoIP providers, a classification the D.C. Circuit upheld.
The NSA lawfully collects communications under FISA Section 702 by targeting a non-U.S. person located abroad. An FBI analyst later runs a query using a U.S. person's email address against this already-collected 702 database to search for evidence in a domestic criminal matter. What is this practice commonly called, and what is the key criticism of it?
This is known as a 'backdoor search' — U.S. person identifiers are used to query data collected under Section 702's lower foreign-intelligence targeting standard, effectively accessing incidentally collected U.S. person communications without the individualized warrant that would otherwise be required, which is the central civil-liberties criticism driving recent reform debates.
A company's in-house counsel learns of a serious workplace injury and internal emails suggest a lawsuit is likely, though no complaint has yet been filed. Under the standard applied in Zubulake v. UBS Warburg and its progeny, when does the company's duty to preserve potentially relevant electronically stored information (a litigation hold) attach?
Zubulake established that the duty to preserve arises when a party reasonably anticipates litigation — a fact-specific trigger that can precede the filing of a complaint — and failure to issue a timely litigation hold can expose the company to spoliation sanctions under FRCP 37(e).
Law enforcement wants to install a device that captures only the phone numbers dialed from a suspect's phone (dialing, routing, addressing, and signaling information) without acquiring any call content. Under 18 U.S.C. §§ 3121-3127, what legal standard must the government meet to obtain a pen register/trap-and-trace order, and how does it compare to the standard for a Title III wiretap order?
Pen register and trap-and-trace orders under 18 U.S.C. §§ 3121-3127 require only that the government certify the information is relevant to an ongoing criminal investigation — a low bar — because they capture only non-content dialing/signaling information, in contrast to Title III wiretap orders, which require probable cause and a showing that normal investigative procedures have been tried and failed or reasonably appear unlikely to succeed, because they capture communication content.
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