Government contracts and privacy expectations

[Sean Donelan]

Concepts such as the business record exception, expectation of privacy in
records held by third parties, etc seem based in the idea that these were
independent actions.

If a third-party normally has no business reason for collecting or
retaining records, but is paid by the government to keep them, does that
change the legal expectations in those records?

And if the government pays companies to retain the records, are those
records kept beyond the normal needs of the business still discoverable
in private legal cases?

http://www.washingtonpost.com/wp-dyn/content/article/2007/07/24/AR2007072402479.html


What if the government didn't specify what records or how long to keep
those records, but paid for an electronic filing system to automate
the delivery of the orders and responses to those orders?  Similar to the
US Courts funding its electronic filing systems to automate its paperwork
processes with law firms.


**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************

[Michael S. Fischer]

Sean,

Are you confusing the business record exception, which is an
evidentiary rule pertaining to hearsay evidence, with discovery, which
is a rule of civil procedure?  Evidence may be discoverable yet
ultimately inadmissible.  The FRCP says that any evidence relating to
the claim or defense of any party is discoverable if not privileged.
To my knowledge there is no law interpreting Rule 26(b)(1) that limits
discovery only to those items a business was required to keep.

AFAICT the essence of privacy, at least as how the courts have
interpreted it, relies heavily on a (necessarily fictional) objective
view, based not on what the information is, but instead upon to whom a
person conveys "private" information.  That is, where a person
voluntarily conveys information to a third party (other than a legally
recognized confidant such as an attorney, physician, psychotherapist
or spouse), the information loses its status as "private."

Best regards,

--Michael

On 7/25/07, Sean Donelan <sean@...> wrote:

> Concepts such as the business record exception, expectation of privacy in
> records held by third parties, etc seem based in the idea that these were
> independent actions.
>
> If a third-party normally has no business reason for collecting or
> retaining records, but is paid by the government to keep them, does that
> change the legal expectations in those records?
>
> And if the government pays companies to retain the records, are those
> records kept beyond the normal needs of the business still discoverable
> in private legal cases?
>
> http://www.washingtonpost.com/wp-dyn/content/article/2007/07/24/AR2007072402479.html
>
>
> What if the government didn't specify what records or how long to keep
> those records, but paid for an electronic filing system to automate
> the delivery of the orders and responses to those orders?  Similar to the
> US Courts funding its electronic filing systems to automate its paperwork
> processes with law firms.
>
>
> **********************************************************************
> For Listserv Instructions, see http://www.lawlists.net/cyberia
> Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
> Need more help? Send mail to: Cyberia-L-Request@...
> **********************************************************************
>

**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************

[Sean Donelan]

On Wed, 25 Jul 2007, Michael S. Fischer wrote:
> Are you confusing the business record exception, which is an
> evidentiary rule pertaining to hearsay evidence, with discovery, which
> is a rule of civil procedure?  Evidence may be discoverable yet
> ultimately inadmissible.  The FRCP says that any evidence relating to
> the claim or defense of any party is discoverable if not privileged.
> To my knowledge there is no law interpreting Rule 26(b)(1) that limits
> discovery only to those items a business was required to keep.

I'm probably confused.  I was thinking more of the service provider
exclusion and records collected "necessary to the rendition of
his service."  If the government is paying service providers to
collect and keep those records, "just in case" the government
later wants to search them, are those records really necessary
to the rendition of the service?  And if not, does the subscriber
have a reasonable expectation of privacy the service provider isn't
collecting and keeping records in excess of those necessary?


See the discussion in the DOJ manual Prosecuting Computer Crimes:


http://www.cybercrime.gov/ccmanual/02ccma.html

  The "necessary to the rendition of his service" clause of subsection
  2511(2)(a)(i) permits providers to intercept, use, or disclose
  communications in the ordinary course of business when interception is
  unavoidable. See United States v. New York Tel. Co., 434 U.S. 159, 168
  n.13 (1977) (noting that ' 2511(2)(a)(i) "excludes all normal telephone
  company business practices from the prohibition of [Title III]"). For
  example, a switchboard operator may briefly overhear conversations when
  connecting calls. See, e.g., United States v. Savage, 564 F.2d 728,
  731-32 (5th Cir. 1977); Adams v. Sumner, 39 F.3d 933, 935 (9th Cir.
  1994). Similarly, repairmen may overhear snippets of conversations when
  tapping phone lines in the course of repairs. See United States v. Ross,
  713 F.2d 389, 392 (8th Cir. 1983). Although the "necessary incident to
  the rendition of his service" language has not been interpreted in the
  context of electronic communications, these cases concerning wire
  communications suggest that this phrase would likewise permit a system
  administrator to intercept communications in the course of repairing or
  maintaining a computer network.


**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************

[Ethan Ackerman]

Sean, your gut feeling is correct.  You are thinking in 4th Amendment
and even moreso "ECPA" terms - a specific statute controlling
government and civil litigant access to various types of electronic
records.  Michael Fisher's general comments on relevance and
discover-ability are accurate at the 30k foot level, but do break down
at the level you are talking about. Many categories of information
clearly conveyed to a 2nd party, and even when conveyed by a 3rd
party, retain statutory, and even constitutional, privacy protections
that limit certain parties, including the govt., from accessing them
in legal proceedings.


Your initial post asks 2 good questions - especially in light of the
ECPA provisions in 18 usc 2511.  The short answer to the 1st, I think,
is that if the 2511 intercepts or records aren't kept or done
i.o.c.o.b., they aren't i.o.c.o.b....  Other than common sense here,
that opinion is also informed by the idea that acts done upon request
of govt. agents are attributed not to the actor but the govt. for 4th
Amendment privacy purposes.

Your 2nd question - are new records "discoverable in private legal
cases" is already answered to some degree by the federal discovery
rules and other laws, including ECPA.  ECPA, for example, prohibits
civil litigant access to email content, but allows for access to
customer records like account #, address, billing info, etc.  While
these new records would seem to add to the overall amount of
potentially accessible info, existing laws already permit or deny
access.



On 7/26/07, Sean Donelan <sean@...> wrote:

> On Wed, 25 Jul 2007, Michael S. Fischer wrote:
> > Are you confusing the business record exception, which is an
> > evidentiary rule pertaining to hearsay evidence, with discovery, which
> > is a rule of civil procedure?  Evidence may be discoverable yet
> > ultimately inadmissible.  The FRCP says that any evidence relating to
> > the claim or defense of any party is discoverable if not privileged.
> > To my knowledge there is no law interpreting Rule 26(b)(1) that limits
> > discovery only to those items a business was required to keep.
>
> I'm probably confused.  I was thinking more of the service provider
> exclusion and records collected "necessary to the rendition of
> his service."  If the government is paying service providers to
> collect and keep those records, "just in case" the government
> later wants to search them, are those records really necessary
> to the rendition of the service?  And if not, does the subscriber
> have a reasonable expectation of privacy the service provider isn't
> collecting and keeping records in excess of those necessary?
>
>
> See the discussion in the DOJ manual Prosecuting Computer Crimes:
>
>
> http://www.cybercrime.gov/ccmanual/02ccma.html
>
>  The "necessary to the rendition of his service" clause of subsection
>  2511(2)(a)(i) permits providers to intercept, use, or disclose
>  communications in the ordinary course of business when interception is
>  unavoidable. See United States v. New York Tel. Co., 434 U.S. 159, 168
>  n.13 (1977) (noting that ' 2511(2)(a)(i) "excludes all normal telephone
>  company business practices from the prohibition of [Title III]"). For
>  example, a switchboard operator may briefly overhear conversations when
>  connecting calls. See, e.g., United States v. Savage, 564 F.2d 728,
>  731-32 (5th Cir. 1977); Adams v. Sumner, 39 F.3d 933, 935 (9th Cir.
>  1994). Similarly, repairmen may overhear snippets of conversations when
>  tapping phone lines in the course of repairs. See United States v. Ross,
>  713 F.2d 389, 392 (8th Cir. 1983). Although the "necessary incident to
>  the rendition of his service" language has not been interpreted in the
>  context of electronic communications, these cases concerning wire
>  communications suggest that this phrase would likewise permit a system
>  administrator to intercept communications in the course of repairing or
>  maintaining a computer network.
>
>
> **********************************************************************
> For Listserv Instructions, see http://www.lawlists.net/cyberia
> Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
> Need more help? Send mail to: Cyberia-L-Request@...
> **********************************************************************
>

**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************

[Sean Donelan]

Thanks, a lot of the time its just a matter of finding the correct words.

And my third question...  If the FBI hadn't tried to overreach, could it
pay for systems to improve the speed and accuracy of service providers
responding to government orders for business records normally collected
in the course of business, e.g. could the FBI pay for high speed
photocopiers at the service provider (or a whole fancy XML lawful order
electronic processing system) to speed up copying records without
changing existing court decisions about the privacy of those records?

Service providers probably won't turn down money, but what strings can
be attached?

On Thu, 26 Jul 2007, Ethan Ackerman wrote:

> Sean, your gut feeling is correct.  You are thinking in 4th Amendment
> and even moreso "ECPA" terms - a specific statute controlling
> government and civil litigant access to various types of electronic
> records.  Michael Fisher's general comments on relevance and
> discover-ability are accurate at the 30k foot level, but do break down
> at the level you are talking about. Many categories of information
> clearly conveyed to a 2nd party, and even when conveyed by a 3rd
> party, retain statutory, and even constitutional, privacy protections
> that limit certain parties, including the govt., from accessing them
> in legal proceedings.
>
>
> Your initial post asks 2 good questions - especially in light of the
> ECPA provisions in 18 usc 2511.  The short answer to the 1st, I think,
> is that if the 2511 intercepts or records aren't kept or done
> i.o.c.o.b., they aren't i.o.c.o.b....  Other than common sense here,
> that opinion is also informed by the idea that acts done upon request
> of govt. agents are attributed not to the actor but the govt. for 4th
> Amendment privacy purposes.
>
> Your 2nd question - are new records "discoverable in private legal
> cases" is already answered to some degree by the federal discovery
> rules and other laws, including ECPA.  ECPA, for example, prohibits
> civil litigant access to email content, but allows for access to
> customer records like account #, address, billing info, etc.  While
> these new records would seem to add to the overall amount of
> potentially accessible info, existing laws already permit or deny
> access.
>
>
>
> On 7/26/07, Sean Donelan <sean@...> wrote:
>> On Wed, 25 Jul 2007, Michael S. Fischer wrote:
>> > Are you confusing the business record exception, which is an
>> > evidentiary rule pertaining to hearsay evidence, with discovery, which
>> > is a rule of civil procedure?  Evidence may be discoverable yet
>> > ultimately inadmissible.  The FRCP says that any evidence relating to
>> > the claim or defense of any party is discoverable if not privileged.
>> > To my knowledge there is no law interpreting Rule 26(b)(1) that limits
>> > discovery only to those items a business was required to keep.
>>
>> I'm probably confused.  I was thinking more of the service provider
>> exclusion and records collected "necessary to the rendition of
>> his service."  If the government is paying service providers to
>> collect and keep those records, "just in case" the government
>> later wants to search them, are those records really necessary
>> to the rendition of the service?  And if not, does the subscriber
>> have a reasonable expectation of privacy the service provider isn't
>> collecting and keeping records in excess of those necessary?
>>
>>
>> See the discussion in the DOJ manual Prosecuting Computer Crimes:
>>
>>
>> http://www.cybercrime.gov/ccmanual/02ccma.html
>>
>>  The "necessary to the rendition of his service" clause of subsection
>>  2511(2)(a)(i) permits providers to intercept, use, or disclose
>>  communications in the ordinary course of business when interception is
>>  unavoidable. See United States v. New York Tel. Co., 434 U.S. 159, 168
>>  n.13 (1977) (noting that ' 2511(2)(a)(i) "excludes all normal telephone
>>  company business practices from the prohibition of [Title III]"). For
>>  example, a switchboard operator may briefly overhear conversations when
>>  connecting calls. See, e.g., United States v. Savage, 564 F.2d 728,
>>  731-32 (5th Cir. 1977); Adams v. Sumner, 39 F.3d 933, 935 (9th Cir.
>>  1994). Similarly, repairmen may overhear snippets of conversations when
>>  tapping phone lines in the course of repairs. See United States v. Ross,
>>  713 F.2d 389, 392 (8th Cir. 1983). Although the "necessary incident to
>>  the rendition of his service" language has not been interpreted in the
>>  context of electronic communications, these cases concerning wire
>>  communications suggest that this phrase would likewise permit a system
>>  administrator to intercept communications in the course of repairing or
>>  maintaining a computer network.
>>
>>
>> **********************************************************************
>> For Listserv Instructions, see http://www.lawlists.net/cyberia
>> Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
>> Need more help? Send mail to: Cyberia-L-Request@...
>> **********************************************************************
>>
>
>
> **********************************************************************
> For Listserv Instructions, see http://www.lawlists.net/cyberia
> Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
> Need more help? Send mail to: Cyberia-L-Request@...
> **********************************************************************
>

**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************

[Alexander Muentz]

Sean Donelan wrote:

> Thanks, a lot of the time its just a matter of finding the correct words.
>
> And my third question...  If the FBI hadn't tried to overreach, could it
> pay for systems to improve the speed and accuracy of service providers
> responding to government orders for business records normally collected
> in the course of business, e.g. could the FBI pay for high speed
> photocopiers at the service provider (or a whole fancy XML lawful
> order electronic processing system) to speed up copying records
> without changing existing court decisions about the privacy of those
> records?
>
> Service providers probably won't turn down money, but what strings can
> be attached?

If the FBI offered money for the collection of additional information,
outside of the course of normal business, that would push the ISP
towards 'agent of the state' for 4th Am analysis.

If they're just subsidizing the transfer of information they're already
entitled to (lawful warrant/court order), I can't see how it changes
existing privacy rights.

Of course, an ISP could put all sorts of waivers to privacy in their
terms of service, hiding a 'you agree to content & metadata reporting to
interested officials' in the fine print.


**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************

[John Noble]

>rules and other laws, including ECPA.  ECPA, for example, prohibits
>civil litigant access to email content, but allows for access to
>customer records like account #, address, billing info, etc.  While
>these new records would seem to add to the overall amount of
>potentially accessible info, existing laws already permit or deny
>access.

I checked in mid-thread, so I may be missing context, but litigants
are regularly sanctioned for failure to preserve and produce emails.
See, e.g, Google Inc. v. American Blind & Wallpaper Factory, Inc.,
No. C 03-5340 (N.D.Cal., June 27, 2007). If I can get them with a
request for production, I can't imagine that I can't get them from a
third-party if the opponent fails to produce.

At 9:48 AM -0400 26/7/07, Ethan Ackerman wrote:

>Sean, your gut feeling is correct.  You are thinking in 4th Amendment
>and even moreso "ECPA" terms - a specific statute controlling
>government and civil litigant access to various types of electronic
>records.  Michael Fisher's general comments on relevance and
>discover-ability are accurate at the 30k foot level, but do break down
>at the level you are talking about. Many categories of information
>clearly conveyed to a 2nd party, and even when conveyed by a 3rd
>party, retain statutory, and even constitutional, privacy protections
>that limit certain parties, including the govt., from accessing them
>in legal proceedings.
>
>
>Your initial post asks 2 good questions - especially in light of the
>ECPA provisions in 18 usc 2511.  The short answer to the 1st, I think,
>is that if the 2511 intercepts or records aren't kept or done
>i.o.c.o.b., they aren't i.o.c.o.b....  Other than common sense here,
>that opinion is also informed by the idea that acts done upon request
>of govt. agents are attributed not to the actor but the govt. for 4th
>Amendment privacy purposes.
>
>Your 2nd question - are new records "discoverable in private legal
>cases" is already answered to some degree by the federal discovery
>rules and other laws, including ECPA.  ECPA, for example, prohibits
>civil litigant access to email content, but allows for access to
>customer records like account #, address, billing info, etc.  While
>these new records would seem to add to the overall amount of
>potentially accessible info, existing laws already permit or deny
>access.
>
>
>
>On 7/26/07, Sean Donelan <sean@...> wrote:
>>On Wed, 25 Jul 2007, Michael S. Fischer wrote:
>>>  Are you confusing the business record exception, which is an
>>>  evidentiary rule pertaining to hearsay evidence, with discovery, which
>>>  is a rule of civil procedure?  Evidence may be discoverable yet
>>>  ultimately inadmissible.  The FRCP says that any evidence relating to
>>>  the claim or defense of any party is discoverable if not privileged.
>>>  To my knowledge there is no law interpreting Rule 26(b)(1) that limits
>>>  discovery only to those items a business was required to keep.
>>
>>I'm probably confused.  I was thinking more of the service provider
>>exclusion and records collected "necessary to the rendition of
>>his service."  If the government is paying service providers to
>>collect and keep those records, "just in case" the government
>>later wants to search them, are those records really necessary
>>to the rendition of the service?  And if not, does the subscriber
>>have a reasonable expectation of privacy the service provider isn't
>>collecting and keeping records in excess of those necessary?
>>
>>
>>See the discussion in the DOJ manual Prosecuting Computer Crimes:
>>
>>
>>http://www.cybercrime.gov/ccmanual/02ccma.html
>>
>>  The "necessary to the rendition of his service" clause of subsection
>>  2511(2)(a)(i) permits providers to intercept, use, or disclose
>>  communications in the ordinary course of business when interception is
>>  unavoidable. See United States v. New York Tel. Co., 434 U.S. 159, 168
>>  n.13 (1977) (noting that ' 2511(2)(a)(i) "excludes all normal telephone
>>  company business practices from the prohibition of [Title III]"). For
>>  example, a switchboard operator may briefly overhear conversations when
>>  connecting calls. See, e.g., United States v. Savage, 564 F.2d 728,
>>  731-32 (5th Cir. 1977); Adams v. Sumner, 39 F.3d 933, 935 (9th Cir.
>>  1994). Similarly, repairmen may overhear snippets of conversations when
>>  tapping phone lines in the course of repairs. See United States v. Ross,
>>  713 F.2d 389, 392 (8th Cir. 1983). Although the "necessary incident to
>>  the rendition of his service" language has not been interpreted in the
>>  context of electronic communications, these cases concerning wire
>>  communications suggest that this phrase would likewise permit a system
>>  administrator to intercept communications in the course of repairing or
>>  maintaining a computer network.
>>
>>
>>**********************************************************************
>>For Listserv Instructions, see http://www.lawlists.net/cyberia
>>Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
>>Need more help? Send mail to: Cyberia-L-Request@...
>>**********************************************************************
>>
>
>
>**********************************************************************
>For Listserv Instructions, see http://www.lawlists.net/cyberia
>Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
>Need more help? Send mail to: Cyberia-L-Request@...
>**********************************************************************

**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************

[Sean Donelan]

On Wed, 8 Aug 2007, John Noble wrote:
> I checked in mid-thread, so I may be missing context, but litigants are
> regularly sanctioned for failure to preserve and produce emails. See, e.g,
> Google Inc. v. American Blind & Wallpaper Factory, Inc., No. C 03-5340
> (N.D.Cal., June 27, 2007). If I can get them with a request for production, I
> can't imagine that I can't get them from a third-party if the opponent fails
> to produce.

ISPs and other service providers are not supposed to release the contents
of electronic communications in response to civil subpoenas.  Of course,
it probably happens, and if the account owner finds out they could sue
the ISP.  Then the account owner has to battle the ISP's contract, and
whatever waivers it includes for mistakes by the ISP.

For example, see AOL's civil subpoena policy
http://legal.web.aol.com/aol/aolpol/civilsubpoena.html
>  Please be advised that the Electronic Communications Privacy Act; 18
>  U.S.C. '2701 et seq., prohibits an electronic communications service
>  provider from producing the contents of electronic communications, even
>  pursuant to subpoena or court order, except in limited circumstances.


**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************

[Ethan Ackerman]

In this particular case, your well-grounded, logical imagining runs
into a federal statute. ;)

You actually can't get from 3rd party ISPs some of what you can get
from the party itself - unless the party itself consents.  The Stored
Communications Act says ISPs can't turn over electronic content
without the party's consent (or a bunch of not here relevant law
enforcement exceptions.)

So a party who is non-compliant and non-responsive to discovery
requests leaves the other litigant no choice but to get orders
compelling discovery.  The intermediate step of compelling production
from the service provider isn't an option.

In theory (speculating here) - a contempt-risking party could even
ignore the court order, and the records simply couldn't be produced.

Theofel v. Farley-Jones and Apple v. Does are 2 prime case examples of this.
(http://www.volokh.com/posts/1148674701.shtml  - details Apple v. Does )


This is particularly harsh on criminal defendants seeking evidence -
see  http://www.sonnenschein.com/docs/docs_isie/Journal_Criminal_Law_Criminology_97_2.pdf
 for a good overview.  (And read Fn. 8 - you are not alone.)

-Ethan



On 8/8/07, jfnbl@... <jfnbl@...> wrote:
[...]
> If I can get them with a
> request for production, I can't imagine that I can't get them from a
> third-party if the opponent fails to produce.
[...]

> At 9:48 AM -0400 26/7/07, Ethan Ackerman wrote:
> >Sean, your gut feeling is correct.  You are thinking in 4th Amendment
> >and even moreso "ECPA" terms - a specific statute controlling
> >government and civil litigant access to various types of electronic
> >records.  Michael Fisher's general comments on relevance and
> >discover-ability are accurate at the 30k foot level, but do break down
> >at the level you are talking about. Many categories of information
> >clearly conveyed to a 2nd party, and even when conveyed by a 3rd
> >party, retain statutory, and even constitutional, privacy protections
> >that limit certain parties, including the govt., from accessing them
> >in legal proceedings.
> >
> >
> >Your initial post asks 2 good questions - especially in light of the
> >ECPA provisions in 18 usc 2511.  The short answer to the 1st, I think,
> >is that if the 2511 intercepts or records aren't kept or done
> >i.o.c.o.b., they aren't i.o.c.o.b....  Other than common sense here,
> >that opinion is also informed by the idea that acts done upon request
> >of govt. agents are attributed not to the actor but the govt. for 4th
> >Amendment privacy purposes.
> >
> >Your 2nd question - are new records "discoverable in private legal
> >cases" is already answered to some degree by the federal discovery
> >rules and other laws, including ECPA.  ECPA, for example, prohibits
> >civil litigant access to email content, but allows for access to
> >customer records like account #, address, billing info, etc.  While
> >these new records would seem to add to the overall amount of
> >potentially accessible info, existing laws already permit or deny
> >access.
> >
> >
> >
> >On 7/26/07, Sean Donelan <sean@...> wrote:
> >>On Wed, 25 Jul 2007, Michael S. Fischer wrote:
> >>>  Are you confusing the business record exception, which is an
> >>>  evidentiary rule pertaining to hearsay evidence, with discovery, which
> >>>  is a rule of civil procedure?  Evidence may be discoverable yet
> >>>  ultimately inadmissible.  The FRCP says that any evidence relating to
> >>>  the claim or defense of any party is discoverable if not privileged.
> >>>  To my knowledge there is no law interpreting Rule 26(b)(1) that limits
> >>>  discovery only to those items a business was required to keep.
> >>
> >>I'm probably confused.  I was thinking more of the service provider
> >>exclusion and records collected "necessary to the rendition of
> >>his service."  If the government is paying service providers to
> >>collect and keep those records, "just in case" the government
> >>later wants to search them, are those records really necessary
> >>to the rendition of the service?  And if not, does the subscriber
> >>have a reasonable expectation of privacy the service provider isn't
> >>collecting and keeping records in excess of those necessary?
> >>
> >>
> >>See the discussion in the DOJ manual Prosecuting Computer Crimes:
> >>
> >>
> >>http://www.cybercrime.gov/ccmanual/02ccma.html
> >>
> >>  The "necessary to the rendition of his service" clause of subsection
> >>  2511(2)(a)(i) permits providers to intercept, use, or disclose
> >>  communications in the ordinary course of business when interception is
> >>  unavoidable. See United States v. New York Tel. Co., 434 U.S. 159, 168
> >>  n.13 (1977) (noting that ' 2511(2)(a)(i) "excludes all normal telephone
> >>  company business practices from the prohibition of [Title III]"). For
> >>  example, a switchboard operator may briefly overhear conversations when
> >>  connecting calls. See, e.g., United States v. Savage, 564 F.2d 728,
> >>  731-32 (5th Cir. 1977); Adams v. Sumner, 39 F.3d 933, 935 (9th Cir.
> >>  1994). Similarly, repairmen may overhear snippets of conversations when
> >>  tapping phone lines in the course of repairs. See United States v. Ross,
> >>  713 F.2d 389, 392 (8th Cir. 1983). Although the "necessary incident to
> >>  the rendition of his service" language has not been interpreted in the
> >>  context of electronic communications, these cases concerning wire
> >>  communications suggest that this phrase would likewise permit a system
> >>  administrator to intercept communications in the course of repairing or
> >>  maintaining a computer network.
> >>
> >>
> >>**********************************************************************
> >>For Listserv Instructions, see http://www.lawlists.net/cyberia
> >>Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
> >>Need more help? Send mail to: Cyberia-L-Request@...
> >>**********************************************************************
> >>
> >
> >
> >**********************************************************************
> >For Listserv Instructions, see http://www.lawlists.net/cyberia
> >Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
> >Need more help? Send mail to: Cyberia-L-Request@...
> >**********************************************************************
>
>

**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************

[Sean Donelan]

On Wed, 8 Aug 2007, Ethan Ackerman wrote:
> This is particularly harsh on criminal defendants seeking evidence -
> see  http://www.sonnenschein.com/docs/docs_isie/Journal_Criminal_Law_Criminology_97_2.pdf
> for a good overview.  (And read Fn. 8 - you are not alone.)

Can a civil plantiff execute an search warrent to seize records stored
in a third-party's apartment without their consent by getting the
landlord to open the door?  Can a civil plantiff search the contents of a
third-party's bank safe deposit box without their consent by getting a
bank manager to unlock the box?


**********************************************************************
For Listserv Instructions, see http://www.lawlists.net/cyberia
Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
Need more help? Send mail to: Cyberia-L-Request@...
**********************************************************************