By Kurt Wimmer and Josephine Liu

The United Nations Office on Drugs and Crime has released a report warning that terrorists are increasingly using the Internet to spread propaganda, recruit and train supporters, finance their activities, and plan terrorist attacks.  Besides providing an overview of the existing legal frameworks to address terrorists’ use of the Internet, the report highlights a number of challenges associated with investigating and prosecuting terrorism cases — and specifically notes that “[o]ne of the major problems confronting all law enforcement agencies is the lack of an internationally agreed framework for retention of data held by ISPs.”   

As the report notes, some countries already require ISPs to retain certain types of data for a specified time period.  But even in the European Union, where Directive 2006/24/EC requires Member States to ensure that regulated providers retain specified communications data for a period between six months and two years, there is no consistent data-retention period.  Some Member States require data to be retained for six months, others for two years.  In addition, several Member States continue to grapple with implementing the Directive, including Germany (where an attempt to implement it was struck down by the constitutional court). 

Continue Reading UN Report Calls for Mandatory Data Retention

Last Friday, Rep. Zoe Lofgren (D-CA) introduced the ECPA 2.0 Act, H.R. 6529, which would strengthen the legal standards for law enforcement to gain access to electronic communications and location information.  The Electronic Communications Privacy Act (ECPA) is more than 25 years old and is widely seen as needing modernization to address changes in digital storage, the cloud, and location-based services.  As we’ve previously noted, government access to location information is an ongoing issue for legislators, courts, and government officials.  

Continue Reading Rep. Lofgren Introduces Legislation to Update ECPA

Last week, the California legislature passed one of the nation’s most restrictive bills governing law enforcement’s ability to access location information.  Under the California Location Privacy Act, state and local government agencies would be required to secure search warrants before obtaining historical or current location information for any electronic device.  The California bill would curtail some of the law enforcement practices described in this New York Times article, which noted that cellphone carriers responded to 1.3 million law enforcement demands in 2011 — many of which came in the form of subpoenas, emergency requests, or other demands that can be less legally burdensome to secure than warrants.  

The California bill contains only a few narrow exceptions to the warrant requirement, such as responding to a user’s 911 call; with a user’s informed, affirmative consent; or in emergencies involving immediate danger of death or serious physical injury.  In the final round of amendments, the bill’s sponsors added an immunity provision for providers of location information: the Act is not to be construed “to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons, for providing location information.”

Continue Reading California Legislature Bans Warrantless Location Tracking

Twitter has announced that it will appeal a New York state judge’s ruling that the company must hand over an Occupy Wall Street protestor’s tweets to the Manhattan district attorney.  The defendant was charged with disorderly conduct for his participation in a protest march in October 1, 2011.  Following that incident, the district attorney subpoenaed Twitter for the defendant’s tweets over several months in the fall of 2011.  The defendant unsuccessfully challenged the subpoena in trial court, and Twitter is taking up the appeal.    

The trial court judge found that the Fourth Amendment did not apply to the government’s subpoena.  The defendant had no privacy interests in his tweets, the judge held, because of the public nature of the Twitter platform.  Pointing out that the “very nature and purpose of Twitter” is to share messages with a broad online audience, the judge concluded that the “defendant’s contention that he has privacy interests in his Tweets . . . [is] without merit.”

Continue Reading Twitter to Appeal NY Ruling that It Must Hand over Occupy Protestor’s Tweets

On 1 April, 2012, the UK press reported that the UK Home Office is preparing to propose new legislative reform of the communications data monitoring law, in the Queen’s Speech in May.  The press reports, and the response from the Home Office on 3 April 2012, provided some further details on a programme that was first announced (without detail) by the current Government in October 2010 in the Strategic Defence and Security Review.  The programme, which resembles a predecessor plan under the prior Labour Government named the “Interception Modernisation Programme”, is now known as the “Communications Capability Development Programme” (CCDP). 

Continue Reading UK Government prepares new legislative proposal to modernise communications data monitoring law

The federal government conducted a search for purposes of the Fourth Amendment when it attached a GPS tracking device to a suspect’s car and used the device to track the suspect’s movements for 28 days, the U.S. Supreme Court ruled Monday.

All nine justices voted to uphold the decision by the U.S. Court of Appeals for the D.C. Circuit reversing Antoine Jones’s drug-trafficking conviction, which was partly based on evidence obtained from the tracking device. But the Court split 5-4 on how the government’s actions constituted a search within the meaning of the Fourth Amendment.

A five-justice majority, in an opinion written by Justice Antonin Scalia, held that the government’s physical attachment of the device to Jones’s car was the critical factor because the Fourth Amendment specifically protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Physically trespassing on one of Jones’s “effects” — the car — in order to obtain information would have been considered a search when the Fourth Amendment was adopted, the Court held, and such an intrusion therefore requires the government to obtain a warrant under most circumstances. Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor joined Justice Scalia’s majority opinion.

Continue Reading Supreme Court: Attaching GPS Tracker to Suspect’s Car Constitutes Search For Purposes of Fourth Amendment