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Court: Police can get Web site, e-mail addresses without warrant
By: SCOTT MARSHALL - Staff Writer | ∞
NORTH COUNTY -- A federal appeals court has ruled in an Escondido drug case that law-enforcement officers do not have to obtain a search warrant to do computer surveillance that reveals the addresses for Web sites people visit or the e-mail addresses for messages they send and receive.
The 17-page decision of the 9th U.S. Circuit Court of Appeals marks the first time a federal appeals court anywhere in the country has addressed whether such actions are constitutional, Judge Raymond C. Fisher wrote in the court's opinion.
A local law professor said Tuesday the possibility exists for law enforcement to abuse its power to seek computer data and that it's a threat to the privacy of people, but he said he believed the court reached the correct legal decision.
The court's ruling involved the case of Dennis Louis Alba. He was sentenced in 2005 to 30 years in federal prison after being convicted of multiple charges related to the operation of an Ecstasy lab in Escondido. The lab was meant to produce enough of the drug to generate $10 million in profits each month, the appeals court decision stated.
Federal agents began conducting computer surveillance in May 2001 to monitor Alba's Internet and e-mail activity, the court's decision stated.
In the decision the court issued Friday, Fisher wrote for the court that the e-mail and Web site addresses do not reveal to government authorities any more information about the content of communications than a telephone number does.
"When the government learns the phone numbers a person has dialed, it may be able to determine the persons or entities to which the numbers correspond, but it does not know what was said in the actual conversations," Fisher wrote. "Similarly, when the government obtains the to/from addresses of a person's e-mails or the IP addresses of Web sites visited, it does not find out the contents of the messages or the particular pages on the Web sites the person viewed."
Computer surveillance techniques that can reveal content such as a particular document on a Web site that a person views would be "constitutionally problematic," Fisher wrote in a footnote in the court's opinion.
For example, an internet protocol address -- a series of numbers sometimes described as a kind of street address for a computer -- would show that someone visited The New York Times Web site at www.nytimes.com. Different information known as a uniform resource locator for the page would show what articles a person viewed on the Web site, the court's opinion stated.
A three-judge panel of the appeals court unanimously decided that computer surveillance used by federal agents to track down e-mail addresses, addresses for Web sites and the amount of data transmitted to and from an account was not a "search" subject to the U.S. Constitution and was not unconstitutional.
The appeals court ruled that the computer surveillance was "indistinguishable" from the use of a device called a pen register that records the numbers dialed on a phone line. The U.S. Supreme Court ruled in 1979 that using a pen register also was not a "search" and was permitted without a search warrant.
Fisher wrote for the court that people making a phone call have to disclose the phone numbers they are calling to the phone company to complete a call, so they have no expectation of privacy for the numbers. Similarly, people using the Internet and e-mail can only access Web sites and messages through Internet service providers -- such as Cox Communications or America Online -- and also have no expectation of privacy for those addresses, Fisher wrote.
David Steinberg, a law professor at the Thomas Jefferson School of Law in San Diego, said the framers of the U.S. Constitution were concerned about physical trespasses when they wrote the Fourth Amendment's protection against unreasonable search and seizure. While computer surveillance can be abused, it is not a problem the Fourth Amendment was designed to address, Steinberg said.
"Is there still a potential for abuse? Of course there is," Steinberg said. "Anyone can abuse power. ... Is there a threat to people's privacy? Yes, of course there is. But the (appeals court) approached it the right way."
Alba's attorney, Michael Crowley, said he believed authorities would not have been able to obtain court-ordered wiretaps and other evidence if they had not done the computer surveillance in dispute in Alba's case.
Crowley said he will ask a panel of 11 appeals court judges to hear the case and possibly change the court's ruling. The case also could be appealed to the U.S. Supreme Court, Crowley said.
"It's too important an issue not to take it as far as we can," he said.
Evidence obtained through the computer surveillance was not introduced against Alba at his trial, but was a "minor portion" of the government's request for a court order to use other surveillance methods, the ruling said. "More than enough other evidence" existed to obtain that court order even without the computer surveillance, the appeals court ruled.
-- Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.
On the Net:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F0E09BB37A97D51A88257310004D1DAC/$file/0550410.pdf?openelement
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Amada wrote on Jul 11, 2007 6:24 AM:My concern would be the ABUSE of power. It is obvious the judges are not familiar with the inept politicians and white-collar corruption in SD and could perhaps be worst in the North County. By the way Scott was this a “Memorandum” opinion or for “Publication”?
I love the police! wrote on Jul 11, 2007 7:47 AM:I love the police! I love the police!I love the police!I love the police!I love the police!I love the police!I love the police! Remember NCT anything I said about the police in the past was just a joke!I love the police!
Billy wrote on Jul 11, 2007 8:36 AM:i kinda doubt our police are tech savy enough to break too many privacy laws
Concerned for US wrote on Jul 11, 2007 8:47 AM:What is going on in this country? The founding fathers are rolling over in their graves right now.
Concerned-1 wrote on Jul 11, 2007 8:51 AM:They may not be tech savy, but I would not want my neighborhood cop looking up the websites I have visited, no more than I want him to be able to walk into a video store and demand to see what movies I have viewed.
esteban wrote on Jul 11, 2007 9:03 AM:This is absolutely the right call, but it's also a no brainer. It's no more intrusive than looking in the White Pages. I support any laws giving cops more power to put crooks away. I always say, if you have nothing to hide, then why mind a little gov't intrusion? Only a crook should be worried.
Tony wrote on Jul 11, 2007 9:10 AM:Welcome to 1984. Why should the police, or anyone else, be exempt from the Constitution? Due Process requires the police to play by the rules for the protection of the innocent. If simply going to a judge and requesting a warrant is too difficult we are all in big trouble.
To esteban wrote on Jul 11, 2007 9:24 AM:That is a very selfish attitude. It's not about whether or not you personally have anything to hide, it's about the right to privacy that is guaranteed to all U.S. Citizens under the Constitution. Get a clue.
I asked our law makers wrote on Jul 11, 2007 9:33 AM:why is 2007 Anarchist cookbook with the fertiler bomb Tim McVey used allowed to be on the internet along with building Nitro, landmines, etc. while we have terorist in our country. Their answer is they knew of this terrorist manaual in 2001 during the 9/11 yet still let it remain on the internet. Freedom of speech they say, well does that then mean that child porn novels should be left on the internet? Freedom of speech? One is for perverts, the other can be used to kill Americans? Both freedom of speech? Sorta like yelling fire isn't it? Or what about our military using the internet, freedom of speech?
estaban wrote on Jul 11, 2007 9:39 AM:I stand corrected, it is more intrusive than lookingina phonebook, disregard my previous comments
esteban wrote on Jul 11, 2007 9:46 AM:To "To esteban"...you get a clue. That old line about everyone being entitled to total privacy, and being allowed to say anything they want is all antiquated crap. There are too many crooks out there and the Constitution gives them too many protections (actually the fault of judges). I don't mind a little less privacy if it means crooks like you can be locked up. If the cops want to check out my porn sites....have at it!!!!
Alf wrote on Jul 11, 2007 9:49 AM:Freedoms, rights, what freedoms and what rights? "Tony" is absolutely right, WELCOME TO 1984! Warrant-less searches, denial of habeas corpus, a president and his string-pulling VICE president declaring themselves above the Constitution are the norm and the UNITED STATES CONSTITUTION being used for toilet paper are our legacy. Get used to the idea that there are no rights, we allowed gwb to destroy them all.
Alf wrote on Jul 11, 2007 9:50 AM:Freedoms, rights, what freedoms and what rights? "Tony" is absolutely right, WELCOME TO 1984! Warrant-less searches, denial of habeas corpus, a president and his string-pulling VICE president declaring themselves above the Constitution are the norm and the UNITED STATES CONSTITUTION being used for toilet paper are our legacy. Get used to the idea that there are no rights, we allowed gwb to destroy them all. GET GWB, CHENEY, ROVE AND THE REST OUT OF OFFICE NOW!!!!!
Daren wrote on Jul 11, 2007 9:51 AM:Our founding fathers were racist slave-owners who are now decomposing worm food. I'm too busy to care what dead people might have thought.
Benjamin Franklin wrote on Jul 11, 2007 10:06 AM:"They that would give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
Pinky wrote on Jul 11, 2007 10:10 AM:Constitution in shreds, freedoms died for are now lost, too busy to care what our Founding Fathers designed. Anarchy reigns at last.
to Esteban wrote on Jul 11, 2007 10:12 AM:Your assumption that I am a crook because I expect my rights to be protected is incorrect. I don't care if I get spied on either, but I can actually see farther than my own nose. If you can't get a clue, then take a peek at THE BIGGER PICTURE.
Native wrote on Jul 11, 2007 10:14 AM:What is this country coming too now adays. Now the government has the right to search & seizure through computor surviellance when ever it feels like even if I am innocent citizen? If they want this information, let them obtain a search warrant like everything else. These Judges have just given them a free pass to access anyone's computor histroy and you think they are not savy enough, they will hire someone who is. This will be a new position at every level.
2kool2care wrote on Jul 11, 2007 10:15 AM:if you have nothing to hide on your browsing history, it shouldn't matter. Let the police look up whatever they have to and try to get the looosers off the streets. unfortunately, many looosers aren't too tech savvy so ... they'll only be able to track the ones who buy a clue
esteban wrote on Jul 11, 2007 10:23 AM:Looks like someone is blooging in my name agai...but they cannot even spell it right. The post by "estaban" at 09:39 is from a ... imposter. Disregard him as everyone probably does already. ...
2 Daren wrote on Jul 11, 2007 10:29 AM:Go pound sand. As the cumulative DNA of my ancestors, many of whom fought and died to build this country, and signed the Declaration of Independence - I am alive and kickin' and ready to stand by the principles that have made us free. That does not include letting the cops off the leash to pry into our personal lives. Go live in a neo-con, socialist, uptopia like Iraq if you don't like the way the founding fathers thought. Or maybe you would prefer the good old USSR?
This is what you get wrote on Jul 11, 2007 10:36 AM:for giving away the nation to the rightwing crowd who calls the shots now.
Alf wrote on Jul 11, 2007 10:40 AM:What is lacking is the wider angle view. When sacrificed one at a time, it does not seem like too much, does it? When one takes a snapshot of 1987 and one of today and compares the relative state of our Constitutional rights then versus now, Are we better off today, Constituiionally speaking, than 2o years ago? till asn unabashed Libertar .
KING KOP wrote on Jul 11, 2007 10:40 AM:Those documents were written in different times, over 200 years ago. Some stuff needs to be modified. I don't care about your private lives. Unless you are committing crimes, then I will pry and use the info against you. My vow is to keep the good people safe, and let the bad guys rot on jail. I don't care how I have to do it.
2 King Kop wrote on Jul 11, 2007 10:52 AM:Who decides which are the bad guys? Sometimes it is an easy call - but too many times the lines are blurred. You need a leash. And keep your paws off my constitution. If you want to rewrite something go start your own kingdom someplace else. I hear they need police in Baghdad.
King Kop wrote on Jul 11, 2007 11:31 AM:Been to Baghdad and done that...twice. It's OUR Constitution, but I enforce the rules. I enforce them as I see that's good for all of us good people. Despite what you think, I do not abuse my authority. But I would love to have carte blanche reign on catching cons.
Ego trip wrote on Jul 11, 2007 11:39 AM:When you call yourself king - you are letting your ego show. I don't trust kings. I don't trust you. Go back to Iraq.
Alf wrote on Jul 11, 2007 11:52 AM:The path to no Constitution is paved with the old "If you have nothing to hide" crap. The Miranda rights warnings were directly related to AND CAUSEDBY THE ABUSE by police and other governmental agencies who used the same SS/Inquisitorial/un-Constitutional tricks to get someone to incriminate themselves, at least in the eyes of the then current tyranny. Why did the most well known part of the 5th Amendment come to be? Because of governmental ABUSES. I suspect that "King Kop" is being sardonic, if not, hang the un-Constitional MOTHER by their toes. Still an unabashed Libertarian, Alf.
no name wrote on Jul 11, 2007 11:58 AM:Slow down folks, do you actually think that when our Constitution was written our founding fathers were concern with the inter-net? After 9/11 we live in a very different world. We have thousands of service men and women protection our freedom in Iraq and other places using what ever is necessary to do their jobs, by the way thank you. But here at home we need to do what ever is necessary to stop the drugs and thugs here. I say for once the 9th u.s.cicuit courts did something right.
What? wrote on Jul 11, 2007 12:25 PM:DON'T TRUST THE GOVERNMENT! They are just people with visions of tyranicle rule. Mr Bush believes he knows what is best for Americans. I don't think he has a clue. All he has is power. King Kop is scary. Enforce them as you see fit? You don't care how you do it? I don't think that is what you are paid to do. You are paid to enforce the laws as they are written and intreprited by the Judiciary. I don't want you to go back to Iraq, I want you to crawl back under what ever rock you crawled out from under. King, oh puleeze. King is anthema to everything this nation stands for. The Constitution has been heavly modified from the original document. It is called a constitutional amendment. esteban you are wrong, this is far more intrusive then looking in a phone book. estAban, you suck, use your own name to attack his arguments. Don't hijack his name.
King Kop wrote on Jul 11, 2007 12:33 PM:I'm not an egomaniac. I just confident because I am good at what I do. You should be thanking me because of the scum I put away, not crucifying me. But I will never ask you to thank me. Just let me do my job. Be safe.
What? wrote on Jul 11, 2007 12:36 PM:Hey no name, you are right after 9/11 we live in a diferent world. We live in a nation that is a little closer to tyrany. Fear is always the first tool of the tyrant. First they use the fear of the outsider then they move on to make everyone fear them. By your thinking a couple of wrongful convictions is ok as long as we are getting more crooks. I say the opposite is better. It is better to let ten crooks go then to have a single wrongful conviction. I would much rather fear the crooks than the cops. Why? Because there will always be more crooks so I have to fear both if I fear the cops.
pac man wrote on Jul 11, 2007 12:40 PM:If this is what it takes to weed out the snakes then so be it...this type of activity has nothing to do with the thinking of the founders of the constitution it's like unprotected sex..
esteban wrote on Jul 11, 2007 12:52 PM:To What?....thanks for defending my identity, even though you disagree with me.
To: 2 Daren wrote on Jul 11, 2007 10:29 AM: wrote on Jul 11, 2007 12:55 PM:Actually under the current laws of both nations, laid side by side, the citizens of Iraq actually enjoy more personal freedoms that US citizens. We are a country where the largest federal branch of government is legislative. In order for that branch to be maintained, they must legislate, or create laws. So inevitably, as our founding fathers also knew, there is a finite end to our way of life. Eventually laws will be created that will out law the law of the land in order to protect us. Right now we are following in step with Hitler, as politicians have started using protecting children as the political football. Right out of Mein Kampf. No one will ever block efforts or laws to protect kids, and then... laws to protect all of us. When we started allowing the government to convince us we needed their protection within the borders is when the rate of legislation increased. At the current pace, in 20 years we will all be born in jail and have to work our way to freedom... if Congress were not needed to make new laws, then there would not be a need for Congress... anyone see that happening without revolution?
to King Kop wrote on Jul 11, 2007 1:00 PM:you are just like the rest of the ego maniacs, yeah, your another lazy bureacrat sucking it up at the public trough, prentending your some type of super hero. Get over it.
To What? wrote on Jul 11, 2007 1:04 PM:When was the last time you wore a badge carried a gun and faced these thugs face to face? I KNOW what these men and women face EVERY DAY. It is very easy to sit on the side line and critized on what you would never do in your lifetime. I am NOT a cop, however I am a cop surviver, I lost an officer by someone high on drugs. I will support every effort, every law, and every officer on the streets. If you think that this job is so easy, I suggest you apply for one of the acadamy's, learn the job and hit the streets. This article has nothing to do with invading a persons privacy unless they are breaking the law. Remember this person had massive drugs. Drugs are what make people do really stupid things like killing an officer. So like pac man said let's weed out the snakes and put the criminals in jail. The public has nothing to worry about unless they have something to hide. To all our LEO's stay safe.
King Kop Kook wrote on Jul 11, 2007 1:07 PM:You wouldnt be able to catch me if I was in your face. Your the kind of wanna be kop that I know isnt from California so please, go back to the state you came from because, California doesnt need more of your likes! Your part of the problem with your uneducated kop mentality.
To King Kop wrote on Jul 11, 2007 1:12 PM:Well, you are doing a crappy job because we aint safe. You're FIRED!
Concerned-1 wrote on Jul 11, 2007 1:16 PM:The person who keeps using other's handles is...The kind that cops and government agencies should be able to scope out. Get a life ...!
Truely Sad wrote on Jul 11, 2007 1:18 PM:A nation that gives up it's Constitutional rights in order to "get the bad guys" or to "be safe" is cowardly. I not only don't want to live in the United States any more with you people, I really wish I could go live on another planet. You people are sad. Don't come crying when you are falsely accused and no one cares.
AW4cryinoutloud wrote on Jul 11, 2007 1:49 PM:You people that are obsessed with names and handles are as egoticical as King Kop, get a life
To Truely sad wrote on Jul 11, 2007 1:59 PM:hey let us know if you need help packing. If it is so awful here move. No one is stopping you. Go live in another country and just see how bad it is here. The military is always looking for people and they will even pay you to move.....problem solved, Good bye
sad day wrote on Jul 11, 2007 2:05 PM:It a sad day when a blog is full of posting from people who sound like they have a lot of things to hide. I say to the cops, bring it on. The more scum you catch the less bloggers are on the computer.....
What is sad? wrote on Jul 11, 2007 2:44 PM:We are a country that challenges authority, born of a revolution. It will be sad when we stop being independents and start relying on the government to solve everything. I see the dialog here as mostly healthy. I have never met a cop I didn't like as a person. I like having the police and a lawful society - but I don't want cops running the show and rewriting the rules. They have plenty of power already. The lawmakers are the real problem here as an earlier post suggests. They have wittled away at our rights and freedom. The police have become their tool and as a result, the cops take the heat for bad laws that they are duty bound to enforce. We should be putting the heat back on the legislature to fix things. One last note to the cops - when the Nazis turned on the Jews, the police were only following the law. Don't let it happen here with you. You don't have to enforce bad laws (ie: busting medical marijuana patients). Keep us safe.
Please, anyone wrote on Jul 11, 2007 3:10 PM:who thinks their information is private on the Net is crazy. It's funny, no one wants controls on the Net, yet when "Big Brother" doesn't want controls everyone cries. If your worried you shouldn't be doing what you are doing. Suck it up!
What? wrote on Jul 11, 2007 3:11 PM:Here we go with the typical argument that if your not a law enforcement officer your opinion doesn't count. phooey. I support all legal efforts of law enforcement. I do not support every effort and I reserve the right to judge officers on a case by case basis. Lets get one thing straight. THEY ARE JUST PEOPLE. While many of them get into law enforcement for all the right reasons enough of them get into it for the high speed pursuits and the ... kickings that they don't get the unquestioning blind respect that I gave them when I was a kid. Where in my post did I say it was an easy job? I didn't and I don't think it is an easy job. Hey AW4, get on subject .... Lets try this....
Grammer Police wrote on Jul 11, 2007 4:15 PM:Lesson for many of the posters here: you're = you are; your = your (possessive)
King Kop wrote on Jul 11, 2007 4:20 PM:To KING KOP KOOK...Don't flatter yourself. I doubt you are that cunning. ... Oh and I live in Oside and am from CA. Thanks though....And you are right, we are NOT safe. That's because of all the restrictions you guys put on me. I truly care about you all, unless you're a scummy criminal. And if you guys don't like the word "king", how about "Top Cop"? Is that better? Let me know, I'm here for you.
Alf wrote on Jul 11, 2007 4:22 PM:Gentlepeople, PLEASE! At issue here is the same crap that GWB loves to eat - WARRANT-LESS SEARCHES. That one court in the judiciary ruled in favor of VIOLATING THE CONSTITUTION does not end it. TAKE IT TO THE SUPREME COURT and if they allow such broad warrant-less searches, RUN FOR YOUR LIVES IF YOU CAN. ALSO - Police Officers are mere people, with most of the same flaws as the rest of us although their psychological testing SHOULD weed out rogues it does not always do so. Stil anunashamed Libertarian, Alf.
To King Kop wrote on Jul 11, 2007 5:29 PM:I seriously doubt you are a "Kop." Maybe a misguided Marine, or securtiy guard...but not a cop.
Alf wrote on Jul 11, 2007 5:32 PM:The improper spelling, "Grammer Police", of they're, their and there makes me think that "Ron" has multiple personality disorder, as he is the one who violates that most often. An unashamed Libertarian, Alf.
Alf wrote on Jul 11, 2007 6:04 PM:I also posted this in the letters today- I do not care whether it's a wire connection or eavesdropping on a portable phone or listening to a cell phone transmission or a camera planted inside my house or in a bush in my yard, the thing that happens is that someone who is REQUIRED UNDER THE CONSTITUTION TO GET A WARRANT does not do so. This BULL rationalization of "national security" is simply a euphemism, an attempted excuse, to make an "end-run" around our CONSTITUTIONAL protection from unwarranted searches. The expectation of privacy is the same whether it is on a hard-wired phone, a cordless phone or a cell phone AND the same rules regarding searches and the need for a search warrant apply regardless of what you think or would prefer. Much litigation has already been made regarding internet sites visited. "Tracking Cookies" are quite properly defined as "SPYWARE" and can usually be prevented, ergo, SPYING on someone's computer activity is also something REQUIRING A WARRANT unless permission is granted. If everyone knew that every site and every keystroke that they made or visited was being monitored, the Boston Tea Party would look like a Tupperware Party by comparison, at least I would hope so. Maybe we have already lost what was left of our CONSTITUTIONAL RIGHTS and simply don't know or care enough. Still an unabashed Libertarian, Alf.
sekrit inner nets wrote on Jul 11, 2007 10:40 PM:Peeps shouldn't expect to be anonymous when out in public, shouting across the street, using a public switched network, or using an internet service provider. Whether it's driving on the highway, or surfing the information super-highway, these infrastructures have regulations and both are subject to law enforcement. You wouldn't expect to be immune from speeding, drunk driving, or hit-and-run while driving. Don't expect to be immune on the 'net. Make your own private net for that.
Legal Alien wrote on Jul 11, 2007 10:59 PM:Excuse me, where did I came to? To some banana republic that has a dictator who sees, hears and smells everything? Is this Peru during the 90s? Is this Chile during Pinochet's ruling? I thought this was the United States of America, a country in which I was sure my freedom, my rights and my privacy would be respected. Am I wrong?
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