Chapter 1 Introduction What are the issues of the day?
The Contract with the ISP
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The Contract with the ISPWhy does the contract with the ISP matter?What about email on the employer's computer?What about email on the University system?Does it matter whether the ISP really looks at the email, or only has the right to?What about gmail - how is Google like the NSA when it comes to email?Warshak v. U.S., 532 F.3d 521 (6th Cir.(Ohio) Jul 11, 2008)The appeals court vacated the previous opinionIt applied an Abbott Labs analysis and rejected the facial challenge to the SCAIt found that the plaintiff had not made a proper showing under Abbott of imminent harmIt found that he had two ways of attacking the subpoenasMotion to exclude evidenceBivens actionAre these satisfactory?National Security LettersAre these issued by a judge?National Security Letter on page 560What does paragraph 3 (readable paragraphs) provide?Does this apply to the entity's lawyer?Does that raise constitutional issue?Doe v. Ashcroft (Doe I), 334 F. Supp. 2d 471 (2004)Who is Doe?What type of records are requested?Who should be worried about this NSL?Does this include email content?Is this information protected by law or is there a constitutional expectation of privacy?How was Doe to provide the requested records?Did Doe comply?Alternative to NSL: Administrative SubpoenasCourts will enforce the subpoena as long as:(1) the agency’s investigation is being conducted pursuant to a legitimate purpose,(2) the inquiry is relevant to that purpose,(3) the information is not already within the agency’s possession, and(4) the proper procedures have been followed.What is the vehicle for judicial review?Alternative to NSL: Criminal SubpoenasDoes a judge have to make probable cause determinations before a criminal subpoena is issued?How do you get judicial review?Why are the standards different from search warrants?How is the execution of the orders different?Why does this allow a different path for judicial review?National Security Letter ProcedureWhy not just use administrative warrants or criminal warrants?Why have a secrecy provision?Who might Doe tell that would upset the feds?How is this handled with criminal warrants?Under Doe I, what had to be certified about the nature of the investigation to get an NSL?Contesting an NSLDoes the statute forbid judicial review?Would that be constitutional?How does the agency intimidate recipients to avoid review?How was Doe contacted?How was he told to deliver the records?What about talking to others?What would a reasonable non-lawyer assume?Is Intimidation a Legal Issue?Roughly how many NSLs had been issued by the time of this case?How many had been contested in court?What did the judge conclude from this?What did he rule about using §2709 in this manner?Does §2709 Violate Subscriber's Rights?What are the 1st Amendment issues with getting email addresses?How is this different from access to back records and other transaction records?What are potential examples?What about header information, such as subject?What about info on reading blogs, postings to lists, web sites visited, tweets read, etc?What issues do these raise?How is this different from pen registers?Anonymous Internet Speech and Associational ActivityShould this be a constitutional right?What if you attack others?What did the judge think?Are the protections of §2709 adequate?Does the judge say that it could never meet the standard?Is the Non-Disclosure Provision Unconstitutional?Section 2709(c) states:‘No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.’Is this a prior restraint or content restriction?Is §2709(c) a Prior Restraint?First, axiomatically the categorical non-disclosure mandate embodied in §2709(c) functions as prior restraint because of the straightforward observation that it prohibits speech before the speech occurs. As the Supreme Court articulated the threshold inquiry: ‘‘The relevant question is whether the challenged regulation authorizes suppression of speech in advance of its expression.’’Can §2709(c) be Fixed by the Agency?Does §2709(c) give the agency discretion to adopt a balancing test for governmental needs versus 1st Amendment rights?Are there allowable restrictions on 1st Amendment activities?John Doe, Inc. v. Mukasey (Doe V), 549 F.3d 861 (2008)Amendments to the NSL StatuteNo foreign state requirementConsistent with the lone wolf provisionsFeds have to certify that there is a reason for secrecyCourt cannot review this certificationRecipient is clearly allowed to consult an attorney and contest the NSL in district courtThe court may modify the order if oppressiveYüklə 0,76 Mb. Dostları ilə paylaş:
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