Intercepting Electronic Communications

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Intercepting Electronic Communications

• Eric Winn

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Title III of the Omnibus Crime Control and Safe
Streets Act of 1968

• Concerning Online activities, this Act prohibits
  the intercepting of electronic communications.
• Also prohibits the use of this illegally obtained
  evidence in any trial or legal proceeding.

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Electronic Communications Defined

• Any transfer of
• signs,
• signals,
• writing,
• images,
• sounds,
• data, or
• intelligence of any nature

• transmitted in whole or in part by
• a wire,
• radio,
• electromagnetic,
• photoelectronic
• or photooptical system
• that affects interstate or foreign commerce

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Electronic Communication Excludes

• Any wire or oral communication,
• any communication made through a tone-only paging
  device,
• any communication from a tracking device
• electronic funds transfer information stored by a
  financial institution in a communications system
  used for the electronic storage and transfer of
  funds

• United States v. Herring, 993 F.2d 784, 787 (11th
  Cir. 1993). "As a rule, a communication is an
  electronic communication if it is neither carried
  by sound waves nor can fairly be characterized as
  one containing the human voice (carried in part
  by wire)."

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Interception Defined

• The aural or other acquisition of the contents of
  any wire, electronic, or oral communication
  through the use of any electronic, mechanical, or
  other device.

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Interception Caveat

• Interception must occur contemporaneously with
  the transmission of the communication.
• Taking communication out of electronic storage
  does not implicate this law, though another law
  does cover that area.
• Key logging devices on personal computers will
  not intercept communications if they are
  configured so keystrokes are not recorded when
  the computer's modem is in use. See United States
  v. Scarfo, 180 F. Supp. 2d 572, 582 (D.N.J.
  2001).

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Interception Caveat II

• Fraser v. Nationwide, 135 F.Supp.2d 623 (E.D.
  Penn. 2001)
• Court held that company's retrieval of agent's
  e-mail from post-transmission storage was not an
  interception, as it was not contemporaneous with
  the sending or receiving of the communication.
• Konop v. Hawaiian Airlines, 302 F.3d 868 (9th
  Cir. 2002)
• Court held that companys access of a website
  under false pretences was not an interception
  under Title III.
• United States v. Councilman, 418 F.3d 67 (1st
  Cir. 2005)
• Court held that companys redirecting and reading
  of emails directed to and from competitors to use
  for commercial advantage constituted interception.

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Title III Exceptions

• The seven important exceptions when dealing with
  Title III
• Interception with a court order under 2518
• Computer Trespasser Exception under 2511(2)(I)
• Consent Exception under 2511(2)(c)-(d)
• Inadvertently Obtaining Evidence Exception under
  2511(3)(b)(iv)
• Provider Exception under 2511(2)(a)(i)
• Accessible to the Public Exception under
  2511(2)(g)(i)
• Extension Telephone Exception under 2510(5)(a)

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2518 Court Order Applications Must show

• Probable cause to suspect a felony is being
  committed, and that the communication facility is
  being used for the crime.
• That normal investigative means have been tried
  and failed, or that they would be too dangerous.
• That the surveillance will be done in a way that
  minimizes interception of communication unrelated
  to the crime.

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2518 Court OrdersHow to Obtain a 2518 Order

• Obtain approval from a high level Justice
  Department member
• Get the order signed by a Judge with competent
  jurisdiction
• These orders allow surveillance for at most 30
  days. Beyond that, a Judge must approve further
  surveillance.

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2511(2)(I) Computer Trespasser Exception

• You are allowed to intercept electronic
  communication if
• You are authorized by the system owner to
  intercept trespasser communications,
• You are involved in an investigation under color
  of law,
• The owner has a reasonable belief that the
  trespassers communication will be relevant to
  the investigation,
• Such interception does not acquire communications
  other than those transmitted to or from the
  computer trespasser.
• Essentially, this is to take away the ambiguity
  of the parties consent exception, and directly
  permits the victim to allow the interception of
  communications.

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2511(2)(c)-(d) Consent Exception

• Interception is lawful if done during an
  investigation and one of the parties to the
  communication consented.
• Interception is lawful if not done during an
  investigation and a party to the communication
  consented as long as the interception is not used
  to further a crime.
• Implied consent can be shown if the network
  provides notice that the system administrator
  will monitor use.

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2511(2)(c)-(d) Consent Exception

• United States v. Seidlitz, 589 F.2d 152 (4th Cir.
  1978)
• The 4th Cir. holds that there is no interception
  under Title III because the victim of the hack
  gave consent to a surveillance of the
  communication, which they were permitted to do as
  a party to the communication.

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2511(3)(b)(iv) Inadvertently Obtained
Criminal Evidence Exception

• An ISP can divulge intercepted electronic
  communications if
• They are otherwise authorized in section 2511
  (2)(a) or 2517 of this title
• They have consent of a party to the communication
• The communications were inadvertently obtained by
  the service provider and appear to pertain to the
  commission of a crime, if such divulgence is made
  to a law enforcement agency.

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2511(2)(a)(i) Provider Exception

• Essentially, an ISP can turn over information
  that was intercepted if it involves protecting
  their rights and property.
• Law enforcement should generally not rely on this
  to get the provider to intercept communications
  for them. This exception applies generally when
  the ISP gives law enforcement intercepted
  communications to enforce their own rights.

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2511(2)(g)(i) Accessible to the Public
Exception

• If the communication is open to the public, it
  can be intercepted by anyone.
• Applies generally to public websites and bulletin
  boards.

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2510(5)(a) Extension Telephone Exception,

• Allows the interception of communications in the
  ordinary course of business.
• The meaning of this ambiguous phrase depends on
  the jurisdiction.
• If monitoring of electronic communications falls
  within the needs of the ordinary course of a
  business, this exception protects that business.

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The End..?

• Never use a computer if you see this. You may be
  being monitored.