Contributed by Dean Milliana, content coordinator interning with
As one of the first lawsuits of its kind in america, a lawsuit was filed against John Oliver who called a scheduled program on the government run television network PBS, entitled “THE OTHER DAY Tonight” on the date of April 18, 2010. The complaint was filed by the American Civil Liberties Union, a public interest lawyer. The program was entitled “Government Bullying” and included the next dialogue:
That is a scary fact: the common American is watched by six government agencies. Six. I want to make this properly clear, if you watch last week night`s show you can confirm this fact for yourself.
PB: I had been happy to do so. Oliver: You won`t believe what I found when I looked at the call detail records of everyone who called this number, week for the last, or going back six weeks. (The segment continued for approximately fifteen seconds, and the caller hung up after the phone call was completed) Oliver: Next time you are tempted to assault a stranger in public, remember that this is actually the government watching you, watching every move. PB: Many thanks. Oliver: But of course, the part that basically got people`s goat was the part where Oliver discussed the call detail records going back month. The ACLU`s complaint stated:
“Oliver took a clip of the month`s worth of phone records and displayed them on national television as a means of making a point about the government`s fascination with the private lives of citizens. It might be unconstitutional for an exclusive party to permit such disclosure patently, however the national government does not have a similar interest. The Supreme Court has held that the Fourth Amendment protects people not the contents of their communications. In this respect, the ACLU was right. Nonetheless it was wrong in its use of the past tense. The federal government has not “looked” at this information. It has obtained this information with a subpoena and the information in Oliver`s clip is lawfully on its files. Oliver`s clip was a form of fishing expedition. A fishing expedition is where private individuals enter somebody else`s property and look for information which may be used to embarrass, harm, or destroy the private individual. Oliver`s act is not only wrong; it is within bad taste and a poor taste act can cause you personal injury. Oliver needs to be reminded about the Fourth Amendment, not the ACLU just.”
The clip did spark an important debate on the utilization of past data in forensic examination, but was Oliver`s use of this “past data” legal? The ACLU and Oliver both claim that the clip was found in part to produce a point about the necessity for people to reveal their data when they may be subpoenaed. As as the Fourth Amendment can be involved far, there is absolutely no such requirement. Oliver`s clip merely demonstrated the reality that when a person answers a subpoena to make a little bit of information, the federal government sometimes needs to get a search warrant to get any additional information, or to look at the whole data set. A search warrant would allow the federal government to examine a person`s data. Oliver did not get yourself a warrant to examine a month`s worth of phone records. In Oliver`s context, that is clearly a fact. But Oliver`s context is irrelevant to the relevant standard for finding a search warrant in a federal case. As discussed in greater detail in an earlier article, the key question is whether the government used the “unidentified source” of Oliver`s data. Here, the federal government claimed that Oliver`s call detail records were an “unidentified source” of the FBI`s call detail records, which Oliver`s use of the clip of these records was unprotected conduct. So, Oliver`s use of the clip was protected, and it did not help Oliver that he did not have the key bits of information he needed to corroborate his defense. Oliver hadn`t reviewed the call detail records actually. He knew nothing about any subpoenas to create the records.
However, Oliver`s use of the clip did donate to the government`s finding a search warrant to examine a month`s worth of phone records. Oliver`s use of the clip was therefore legal, and it did not hurt Oliver that he did not actually have the key bits of information he needed to corroborate his defense.
The main element question is whether the government used the “unidentified source” of Oliver`s data. Here, the federal government claimed that Oliver`s call detail records were an “unidentified source” of the FBI`s call detail records, which Oliver`s use of the clip of these records was unprotected conduct. Oliver`s use of the clip was therefore legal, and it did not hurt Oliver that he did not actually have the key bits of information he needed to corroborate his defense. Oliver hadn`t actually reviewed the call detail records. He knew nothing about any subpoenas to create the records.
As discussed in an earlier article, the government`s claim has ended his conduct of taking a look at a clip of phone records in a browser window. As other writers have argued, this argument may fail because the federal government doesn`t need to prove that Oliver actually viewed the net page with the phone records, only that Oliver looked at the net page. As much other writers have argued, Oliver is absolve to look at any website, including a link to a page that does not include phone records, and which does not identify the data in question.
Oliver`s reliance on USA v. Pazant, where in fact the Supreme Court discovered that the use of the URL to conduct a search of the out-of-court conference call had not been protected expression, is misplaced. In that case, the Court upheld an indictment for accessing a pc located on a foreign government website, even though Pazant had entered the URL of the web site into his personal computer`s URL bar.
In contrast, in this case, the federal government obtained an order for Oliver`s call detail records pursuant to a grand jury subpoena, which included specific instructions to recognize the source of the records which were sought. The national government, counting on USA v. Pazant, decided that Oliver`s conduct of taking a look at a URL within the browser`s address bar was insufficient for him to assert the defenses afforded by the Stored Communications Act. Because Oliver didn`t actually access or make a copy of the webpage, or save it for retrieval later, he cannot assert the defenses afforded by the Stored Communications Act.
The Court of Appeals, and the district court in this case, have rejected arguments that Oliver should be permitted to assert his state`s wiretap claim as a function of his use of the bookmark to aid him in accessing a foreign website. While it could be possible, depending on the circumstances, that Oliver could have a claim against the federal government if he accessed the webpage, the claims asserted by the federal government weren`t founded on a use of the URL within the browser`s address bar.
Rather, the federal government argued that Oliver`s access of the URL is highly recommended a use of the Stored Communications Act. As the national government relied on that reasoning, the claim was denied and the wiretap case against Manning was allowed to stand.
I do not think it is essential to address this point. The claim that Manning accessed a URL with the only real reason for accessing a foreign website had not been the type of access that entitled Manning to assert the defenses provided by the Stored Communications Act, but was instead a secondary use of the URL, and was thus not grounds for Manning to assert the defenses.
As the Stored Communications Act allows plaintiffs to assert defenses predicated on the circumstances of their access to the webpage, an initial use defense is not needed. In fact, I believe that needs to be the standard. The primary purpose of the utilization of the URL is thought as “the main one intended by the web site operator in directing users to the URL.” However, if the defendant initiates the utilization of the URL, then it will only be available to the defendant`s usage, not the intended use of the web site operator.
I disagree with the Court of Appeals` decision. It was wrong on both legal theory and history.
At first glance, this seems such as a slam dunk case. The court`s reasoning appears to be that because Manning accessed the webpage because he was on the work computer and on work premises, he will need to have intended to access the webpage on behalf of his employer. And what do the known facts show? Manning accessed the page because he had an urgent need to get hold of someone. It may have even been because he had an urgent need to get hold of his wife. Therefore, he did not view the webpage for personal use, but instead viewed the webpage on behalf of his employer. Therefore, he violated the Stored Policy. This decision seems to support the court`s rationale. Again Then, this is actually the first-time this decision has been passed down in a personal injury context. It is certainly at the mercy of a different interpretation than when it was passed down in the telecommunications context. In that context, Stored Communications (later known as Cogent Communications) was trying to decide the issue of whether or not a supervisor could be liable for a subordinate`s access of the supervisor`s work computer. In that case, Cogent argued that supervisors had a duty of care for the subordinates they employed, and because the supervisor`s access to the work computer had not been for work related purposes, the supervisor cannot be liable. In that case, Cogent held the supervisor liable for the subordinate`s access to the computer. But in this case, the court had a different position. The court ruled that Stored did not have the rights to terminate the access as it occurred. The access only became terminationable when Manning made a decision to send an email to a person support agent, explaining his actions. The court relied on the decision in Newland v. United Airlines, Ltd. where in fact the court held that when an airline provided a passenger with meals, ticket, boarding passes and the opportunity to use the airport`s terminal, and informed the passenger that they cannot be held accountable for any actions on the passenger`s behalf if the passenger did not do anything, the airline lost the right to terminate the meal, ticket, boarding passes, and terminal access when the passenger boarded the plane. In Newland, the court discovered that when the airline gave the passenger a ticket for a flight to be used for business purposes, the passenger had used the airline`s facilities for work related purposes, and the airline retained the right to terminate access when the passenger operated the aircraft. When the airline terminated Manning`s access to the computer, it had only given him the opportunity to access the computer for work related purposes. The court reasoned that, it was only the passenger`s act of actually accessing the web site that gave Stored the right to terminate Manning`s access. The court ruled that Stored hadn`t sent Manning an email of “instructions” to access the computer.
The court discovered that the airline had sent Manning an email of “instructions” to access the computer which Manning had accessed the computer via the airline`s Internet system, not via Stored`s system. The court determined that Stored had not been liable for Manning`s actions as it hadn`t given the passenger instructions to access the machine. Manning`s access to the machine was terminated when the aircraft reached cruising altitude and Manning became aware that he had been videotaped by the security camera.