Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
Amendment protections.50Substantial evidence of this protective approach makes itplausible that Internet users have an actual expectation of privacyin URL information being intercepted by Carnivore. In fact, manyprivacy groups are concerned about the potential of Carnivore toreceive and record such information.51 For example, ElectronicPrivacy Information Center (EPIC) filed a Freedom of Informationlawsuit against the FBI in July 2000, requesting release ofCarnivore’s capacity to view such information.52 The organizationwas successful in obtaining over 2,000 Carnivore relateddocuments from the Justice Department.53 However, finding theprovided information inconclusive, EPIC filed a motion in theDistrict of Columbia in August, 2001 requesting the deposition ofseveral FBI officials in order to acquire further informationregarding the device’s ability to retrieve such data.54 Also, privatesoftware companies, in response at least in part to Carnivore’sability to intercept URL information, have developed URLblocking software to prevent such access.55 Similarly, many suchcompanies have developed, or are in the process of developing lessinvasive surveillance devices, emphasizing a less intrusiveprocedure and enhancing privacy protections.56Alternatively, it would seem that a strong argument couldreasonably be made in favor of a traditional application of theCourt’s reasoning in Smith and Miller with respect to Internetaddressing information. Although, very few courts haveaddressed the applicability of such reasoning to the Internetforum, the courts seem to agree that a traditional approach isappropriate. Proponents of this position state that, like telephone50. See Randolph S. Sergent, A Fourth Amendment Model for Computer Networksand Data Privacy, 81 Va. L. Rev. 1181, 1201 (1995) (discussing how individuals do notassume the risk that the content of their telephone conversations will be disclosed by athird party (e.g. telephone company)).51. See Michael J. Miller, The Ever-Expanding Browser, PC Magazine, Oct. 3,2000, at 7.52. See Maria Mosquera, Privacy Group Wants Speedier Carnivore Disclosure,Techweb News, Aug. 18, 2000.53. See Epic Wants A Closer Look At ‘Carnivore’, Nat’l J. Tech. Daily, Aug. 13,2001.54. See id.55. See Accelerated Networks Introduces Secure Multiservice Broadband Access;DSLcon, Bus. Wire, Sept. 19, 2000.56. See Ann Harrison, Don’t Like Carnivore? How About Altivore? Open SourceCode Version of E Mail Sniffer in the Works, Computerworld, Sept. 25, 2000, at 12.
digits and bank records, URL information is voluntarily submittedto third parties. Internet users must realize that they “convey”their URL information since this information must travel throughthe ISP’s network to reach whatever destination is desired.57Also, ISPs require Internet users to choose a unique URL addressin order to facilitate delivery and transmission of electroniccommunications, much like a telephone company does when itassigns telephone numbers.58 The analogy can go further. InSmith, the Court determined that the individual voluntarily turnsover addressing information to the telephone company and thusassumes the risk that the company will reveal the information tolaw enforcement. This assumption must be made even thoughtelephone companies normally do not record every number dialedby a customer.59 Thus, although it is quite probable that an ISPwould not record every transmission made, every transmissionsent by a user must flow through the ISP’s server, and thereforethe Internet user must assume the risk that such information willbe revealed to law enforcement.60Applying the reasoning of Smith and Miller to IPs, addressinformation may be an easier position to argue for thosesupporting the traditional approach. Unlike URL information, IPaddresses are numerical, therefore much more like telephonenumbers and contain little, if any, content element. However, aswith URL data, some effort has been made to protect suchinformation from public access. On October 12, 2000, staterepresentative Gene Green introduced a bill that would prohibitISPs from placing software “cookies,” a type of tracking andidentification device, on consumer IP addresses.61 Also, theAmerican Bar Association has created a new website to helpconsumers avoid cookies as they shop online.62This practical evidence suggests that individuals57. Smith, 442 U.S. at 742 (reasoning that an individual realizes that he mustconvey phone numbers he dials to his telephone company since his call is completedthrough the company’s switching equipment).58. See Paul Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev.1609, 1610-11 (1999).59. Smith, 442 U.S. at 735.60. See Skok, supra note 1, at 67.61. See Drew Clark, Privacy: Green Introduces Online Privacy Policy Measure,Nat’l J. Tech. Daily, Oct. 12, 2000.62. See Sara Hazlewood, ABA Offers Tips to Help Consumers Protect Themselveson the Internet, 17 Bus. J. 7 (Dec. 3, 1999).
- Page 216 and 217: law is a complex one.125 Although s
- Page 218 and 219: the intellectual property balance o
- Page 220 and 221: Other Substantive IssuesThere are,
- Page 222 and 223: law,153 and many of UCITA’s provi
- Page 224 and 225: nature of law-making both domestica
- Page 226 and 227: Transactions Act).
- Page 228 and 229: acts of copyright infringement.7 Un
- Page 230 and 231: these rights.I. ISP LIABILITY FOR T
- Page 232 and 233: Cubby, the court in Stratton Oakmon
- Page 234 and 235: liability for third-party content.5
- Page 236 and 237: network and removed the edition of
- Page 238 and 239: subscribers’ conversations.84 Fur
- Page 240 and 241: holder.92 Contributory liability ap
- Page 242 and 243: and Klemesrud on the counts of dire
- Page 244 and 245: eport, the White Paper on Intellect
- Page 246 and 247: imposed ISP liability both in insta
- Page 248 and 249: any infringing material either upon
- Page 250 and 251: provider liability, the European Co
- Page 252 and 253: of a defamatory statement.While saf
- Page 254 and 255: defamation.184 One case that illust
- Page 256 and 257: material that appears questionable
- Page 258 and 259: FBI’s Carnivore: Is the Governmen
- Page 260 and 261: and the legal limits of government
- Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
- Page 264 and 265: application developed in Katz v. Un
- Page 268 and 269: communicating over the Internet pos
- Page 270 and 271: court will likely, as it has often
- Page 272 and 273: unconstitutional.81 Although CALEA
- Page 274 and 275: data attributable to the target sus
- Page 276 and 277: FBI facility for subsequent examina
- Page 278 and 279: EPCA Section 2518 provides that upo
- Page 280 and 281: The FBI has stated that its use of
- Page 282 and 283: provision,143 but judging from the
digits and bank records, URL information is voluntarily submittedto third parties. Internet users must realize that they “convey”their URL information since this information must travel throughthe ISP’s network to reach whatever destination is desired.57Also, ISPs require Internet users to choose a unique URL addressin order to facilitate delivery and transmission <strong>of</strong> electroniccommunications, much like a telephone company does when itassigns telephone numbers.58 The analogy can go further. InSmith, the Court determined that the individual voluntarily turnsover addressing information to the telephone company and thusassumes the risk that the company will reveal the information tolaw enforcement. This assumption must be made even thoughtelephone companies normally do not record every number dialedby a customer.59 Thus, although it is quite probable that an ISPwould not record every transmission made, every transmissionsent by a user must flow through the ISP’s server, and thereforethe Internet user must assume the risk that such information willbe revealed to law enforcement.60Applying the reasoning <strong>of</strong> Smith and Miller to IPs, addressinformation may be an easier position to argue for thosesupporting the traditional approach. Unlike URL information, IPaddresses are numerical, therefore much more like telephonenumbers and contain little, if any, content element. However, aswith URL data, some effort has been made to protect suchinformation from public access. On October 12, 2000, staterepresentative Gene Green introduced a bill that would prohibitISPs from placing s<strong>of</strong>tware “cookies,” a type <strong>of</strong> tracking andidentification device, on consumer IP addresses.61 Also, theAmerican Bar Association has created a new website to helpconsumers avoid cookies as they shop online.62This practical evidence suggests that individuals57. Smith, 442 U.S. at 742 (reasoning that an individual realizes that he mustconvey phone numbers he dials to his telephone company since his call is completedthrough the company’s switching equipment).58. See Paul Schwartz, Privacy and Democracy in Cyberspace, 52 Vand. L. Rev.1609, 1610-11 (1999).59. Smith, 442 U.S. at 735.60. See Skok, supra note 1, at 67.61. See Drew Clark, Privacy: Green Introduces Online Privacy Policy Measure,Nat’l J. Tech. Daily, Oct. 12, 2000.62. See Sara Hazlewood, ABA Offers Tips to Help Consumers Protect Themselveson the Internet, 17 Bus. J. 7 (Dec. 3, 1999).
Change language