BLOG BULLETS:

• A recent Ninth Circuit case holds that e-mails transmitted over a Wi-Fi network are “electronic transmissions” subject to the requirements of the wiretap statute.
• The case rejected an argument that an exception for transmissions “readily accessible to the public” applies, so the general requirements for a wiretap such as probable cause, a warrant, necessity, and approval by high executive officials apply.
• The case also rejected an argument that e-mails needed to be encrypted to be protected.

NOW THE BLOG:

A case came to my attention recently – and also the ideas that follow about what to do with it, which come from the Oregon Federal Public Defender’s office – in an e-mail on one of the e-mail chains I’m on. The case is actually a civil case, but it has some interesting potential implications for a type of computer “search” which could take place in a criminal investigation. I’m not sure how often the issue will come up, but I thought I’d share it. And perhaps some other ideas or issues will grow out of it.

The case is Joffe v. Google, ___ F.3d ___, No. 11-17483, 2013 WL 6905957 (9th Cir. Dec. 27, 2013). It’s a civil class action, but it’s based on the wiretap statute, 18 U.S.C. § 2511 et seq., which comes up most often, of course, in criminal prosecutions. The lawsuit was filed against Google because its “Street View cars” captured transmissions such as e-mail from computers connected to Wi-Fi networks at the time the cars were driving by. It was pretty much accepted that these transmissions qualified as “electronic transmissions” under the wiretap statute, and the argument was whether they came within an exception for transmissions “readily accessible to the general public.” The details of the argument and the court’s lengthy, in-depth analysis of the statute and its language aren’t really so important as the court’s holding. The holding was that these transmissions did not come within the “readily accessible to the general public” exception, so their capture did violate the wiretap statute.

Aside from the fact that this might allow our clients and us to sue Google (or become part of the class in Joffe), it provides some significant protections in criminal cases where e-mails sent over Wi-Fi networks are accessed. If you’ve ever wondered whether law enforcement accessing Wi-Fi networks constituted a search subject to the Fourth Amendment, you can now skip completely past that question. Regardless of whether the Fourth Amendment applies, the wiretap statute does. And the wiretap statute requires not only the probable cause and warrant that the Fourth Amendment requires, but also much more. It requires a showing of necessity in addition to probable cause and a warrant. It requires the application be made by, in the case of a federal wiretap, high Department of Justice officials or, in the case of a state wiretap, the state Attorney General or principal prosecuting attorney of a political subdivision of the state. See18 U.S.C. § 2516. At least according to some circuits, the government can’t claim the good faith exception for an invalid wiretap the way it can for an invalid search warrant. See United States v. Rice, 478 F.3d 704, 712-13 (6th Cir. 2007); United States v. Spadaccino, 800 F.2d 292, 296 (2nd Cir. 1986). But see United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994) (holding good faith exception does apply to invalid wiretap);United States v. Malekzadeh, 855 F.2d 1492, 1487 (11th Cir. 1988) (same). And there’s various other procedural requirements that are more stringent than for mere search warrants.

There’s also a point made in the Joffe opinion about the effect of encryption, or, more particularly, the lack thereof, that may have broader implications. The court considered and rejected a requirement that an e-mail be encrypted in order to be protected. Consider whether this holding might be extended to a case like United States v. Stanley, 653 F.3d 946 (9th Cir. 2011), which I discussed in a post a year and a half ago. (See “Getting Even Braver in a Brave New World: Computer Searches Part 3” through the August 2012 link at the right.) The initial published opinion in the Stanley case, which was subsequently withdrawn,see United States v. Stanley, 688 F.3d 1192 (9th Cir. 2012), suggested it was at least extremely relevant and arguably required that a computer user password protect his folders on a shared computer. See id., 653 F.3d at 950-51. But see id. at 960-62 (Beezer, J., dissenting) (rejecting relevance of password protection). Query whether the Joffe holding that there need not be encryption of e-mails sent over a Wi-Fi network extends to rejection of a password protection requirement on a shared computer like in Stanley.

As to a shared Wi-Fi network, there was some interesting pre-Joffe litigation about intrusion into a computer via a Wi-Fi network in United States v. Ahrndt, 475 Fed. Appx. 656 (9th Cir. 2012) (unpublished), suppression granted on remand, 2013 WL 179326 (D. Ore. Jan. 17, 2013). In that case, an officer accessed the defendant’s computer files through a peer-to-peer network by asking another user on the defendant’s Wi-Fi network to access – without a warrant – a file that appeared to (and, unfortunately for the defendant, actually did) contain child pornography. The court of appeals remanded for further findings, and the district court held there was a Fourth Amendment violation, based on a conclusion that the defendant hadn’t intended to share the files with anyone else and so the intrusion did violate a reasonable expectation of privacy protected by the Fourth Amendment. This isn’t quite Joffe, since it involved a file accessed through a Wi-Fi network, not an e-mail sent out via a Wi-Fi network, but it’s another example of how law enforcement intrusion into or via a Wi-Fi network can lead to the suppression of the evidence discovered.

This post is in the mode of exploring and sharing ideas, so please feel free to share any ideas, issues, or thoughts you’ve had, through the comment feature below.