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
court will likely, as it has often done when addressing FourthAmendment applicability to technological advances, attempt toanalogize the situation with a more traditional setting. In thiscase, that traditional setting will undoubtedly be that establishedin Smith and Miller.From this examination, it seems unlikely that, even if anindividual can establish that he has a subjective expectation ofprivacy in URL and IP information attached to his electronictransmissions, the judiciary will determine that society isprepared to recognize such expectation. Thus, Carnivore’sinterception of URL and IP information relating to individuals notnamed in a court order is not likely a search as determined underFourth Amendment principles.If, in the alternative, the judiciary were to find the existenceof both a subjective and societal reasonable expectation of privacyin URL and IP data, Carnivore would undoubtedly be conductinga search of such information, and the next step in theconstitutional analysis would be to determine whether the searchwas a valid one.2. The Viewing of Addressing Information Inside Body ofTransmissiona. Is the Governmental Action a Fourth Amendment Search?Electronic addressing information, such as URL or IP data,can generally be intercepted by Carnivore without entering thebody of the accompanying electronic transmission.76 However,there may be certain instances in which such information islocated only within the body of the communication, such as the“TO:” line within an electronic message. This situation may occurwhen the particular software used to transmit the communicationdoes not reveal the URL address to the ISP, but merely transmitsthe IP address, or computer identification number.77 Forexample, if the FBI has a court order to search for a particularURL, the device may have to locate this information on the “TO:”line of the transmission if the only information sent from theconvey phone numbers he dials to his telephone company since his call is completedthrough the company’s switching equipment).76. See Hearings 2, supra note 22.77. See Carnivore’s Challenge, supra note 6.
computer to the ISP is its numerical IP address. Thus, in thesecases it is highly probable that Carnivore will enter the body oftransmissions sent or received by people not subject to a courtorder as they flow through the first filter point.Some argue that this invasion, however slight, is anunauthorized warrantless search. Those who support thisposition rely on the Supreme Court’s reasoning in Arizona v.Hicks.78 In Hicks, the Court held that a warrantless searchpremised on no judicially created exception will be deemedviolative of the Fourth Amendment even if the governmentalintrusion is minimal. The Court based its decision in part on thefact that such intrusions may give law enforcement access toinformation that they would not otherwise be legally entitled.Applying the Hicks reasoning, when Carnivore is searching forURL information in the body of an electronic transmission,although the intrusion is slight, the FBI may have access toinformation within the communication that it would not otherwisebe legally entitled.Although this reasoning has not yet been applied by thecourts to Internet communications, there is some evidence thatsuggests that the judiciary would not favor this approach. In1997, the Communications Assistance for Law Enforcement Act of1994 (CALEA)79 was amended to allow telecommunicationscompanies, in certain instances, to provide the full content ofcustomer communications to the government. This is true evenwhen the government is only authorized to intercept addressinginformation.80 The amendment relies on law enforcement tosegregate the addressing information from the content of themessages. No court has yet deemed the provision to be78. 480 U.S. 321 (1987) (concerning a situation where law enforcement officerswere legally on private premises investigating a shooting when an officer noticed andcertain stereo equipment within the home that he suspected was stolen. The officerslightly moved the equipment in order to obtain its serial number. The Supreme Courtheld that although law enforcement was legally on the premises, the movement of theequipment constituted a warrantless search because an action was taken by the officerto obtain information not otherwise available to him.); see also Carnivore’s Challenge,supra note 6 (statement of Alan B. Davidson, Staff Counsel, Center for Democracy andTechnology).79. 47 U.S.C. § 1001 (1994 & Supp. V 1999) (imposing a statutory obligation ontelecommunications providers to provide assistance to law enforcement when presentedwith valid legal authorization; although CALEA regulates telecommunications, it hasnot yet been amended to include Internet Service Providers).80. See Dempsey, supra note 46, at 97-98.
- Page 220 and 221: Other Substantive IssuesThere are,
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computer to the ISP is its numerical IP address. Thus, in thesecases it is highly probable that Carnivore will enter the body <strong>of</strong>transmissions sent or received by people not subject to a courtorder as they flow through the first filter point.Some argue that this invasion, however slight, is anunauthorized warrantless search. Those who support thisposition rely on the Supreme Court’s reasoning in Arizona v.Hicks.78 In Hicks, the Court held that a warrantless searchpremised on no judicially created exception will be deemedviolative <strong>of</strong> the Fourth Amendment even if the governmentalintrusion is minimal. The Court based its decision in part on thefact that such intrusions may give law enforcement access toinformation that they would not otherwise be legally entitled.Applying the Hicks reasoning, when Carnivore is searching forURL information in the body <strong>of</strong> an electronic transmission,although the intrusion is slight, the FBI may have access toinformation within the communication that it would not otherwisebe legally entitled.Although this reasoning has not yet been applied by thecourts to Internet communications, there is some evidence thatsuggests that the judiciary would not favor this approach. In1997, the Communications Assistance for <strong>Law</strong> Enforcement Act <strong>of</strong>1994 (CALEA)79 was amended to allow telecommunicationscompanies, in certain instances, to provide the full content <strong>of</strong>customer communications to the government. This is true evenwhen the government is only authorized to intercept addressinginformation.80 The amendment relies on law enforcement tosegregate the addressing information from the content <strong>of</strong> themessages. <strong>No</strong> court has yet deemed the provision to be78. 480 U.S. 321 (1987) (concerning a situation where law enforcement <strong>of</strong>ficerswere legally on private premises investigating a shooting when an <strong>of</strong>ficer noticed andcertain stereo equipment within the home that he suspected was stolen. The <strong>of</strong>ficerslightly moved the equipment in order to obtain its serial number. The Supreme Courtheld that although law enforcement was legally on the premises, the movement <strong>of</strong> theequipment constituted a warrantless search because an action was taken by the <strong>of</strong>ficerto obtain information not otherwise available to him.); see also Carnivore’s Challenge,supra note 6 (statement <strong>of</strong> Alan B. Davidson, Staff Counsel, Center for Democracy andTechnology).79. 47 U.S.C. § 1001 (1994 & Supp. V 1999) (imposing a statutory obligation ontelecommunications providers to provide assistance to law enforcement when presentedwith valid legal authorization; although CALEA regulates telecommunications, it hasnot yet been amended to include Internet Service Providers).80. See Dempsey, supra note 46, at 97-98.
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