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| - There is no doubt that EINSTEIN's monitoring of all communications coming to and from federal agency computers poses significant privacy implications — a concern acknowledged by the Department of Homeland Security (DHS), interest groups, academia, and the general public. This program affects not only federal employees, but also any private citizen who communicates with them. DHS has developed a set of procedures to address these concerns, such as minimization of information collection, training and accountability requirements, and retention rules. Notwithstanding these steps, growth of this Internet monitoring program may trigger privacy interests protected under the Fourth Amendment.
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| abstract
| - There is no doubt that EINSTEIN's monitoring of all communications coming to and from federal agency computers poses significant privacy implications — a concern acknowledged by the Department of Homeland Security (DHS), interest groups, academia, and the general public. This program affects not only federal employees, but also any private citizen who communicates with them. DHS has developed a set of procedures to address these concerns, such as minimization of information collection, training and accountability requirements, and retention rules. Notwithstanding these steps, growth of this Internet monitoring program may trigger privacy interests protected under the Fourth Amendment. The Fourth Amendment provides in relevant part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." The principal purpose of the Fourth Amendment is to protect the privacy of individuals against invasion from government officials.. Not all government acts, however, trigger Fourth Amendment protections. For the Fourth Amendment to apply, a court must first inquire whether the governmental act constitutes a search or seizure in the constitutional sense. To determine if a search has occurred, a court will ask whether the individual had an actual expectation of privacy that society would deem reasonable. If yes, the court will then ask if the search was reasonable — the core Fourth Amendment requirement. Except in well-defined instances, a search is not reasonable unless the government obtains a warrant based upon probable cause. There are, however, exceptions to this rule such as special needs and consent that will be explored below. There seems to be a consensus in federal courts that Internet users are not entitled to privacy in the non-content, routing information of their Internet communications. In United States v. Forrester, the government obtained court permission to install a device similar to a pen register to record the to/from addresses of the defendant's emails, the IP addresses of the sites he visited, and the total volume of data sent to and from his account. The Ninth Circuit Court of Appeals held that these surveillance techniques were indistinguishable from the pen register upheld by the U.S. Supreme Court in Smith v. Maryland. Internet users should be aware, the panel reasoned, that this routing information is provided to the Internet service provider for the purpose of directing the information. On the other hand, the cases generally demonstrate that an individual has a legitimate expectation of privacy in the content of a communication. In United States v. Warshak, the Ninth Circuit ruled that a "subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP." In an earlier case, the Second Circuit opined that Internet users have an expectation of privacy in the content of the e-mail while in transmission. Although the Supreme Court declined to resolve this issue in City of Ontario v. Quon, deciding the case on other grounds, it opined in dicta that "cell phones and text message communications are so pervasive that some persons may consider them to be an essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy." This content/non-content distinction is as old as Fourth Amendment case law. In the late nineteenth century, the Court explained in Ex parte Jackson that the outside of a mailed letter — its "outward form and weight" — was not entitled constitutional protection. However, the government must obtain a warrant before examining the contents of a letter or sealed package.The Court protected the inside contents of the letter, but held that the outside, non-content material was not entitled to (in modern parlance) a reasonable expectation of privacy. This same rule was carried over to the telephone context. In Katz v. United States, the Court held that the contents of Katz's conversation — the actual words spoken — were protected under the Fourth Amendment. A decade later the Court completed the other side of the doctrine in Smith v. Maryland, and held that a person has no expectation of privacy in the non-content, routing information of the telephone call — the numbers dialed. EINSTEIN 2 not only collects the routing, non-content portions of communications, such as e-mail header information, but also scans and collects the content of the communications, such as the body of e-mails. Based on the reasoning of the Internet content cases, individuals most likely have a reasonable expectation of privacy in those electronic communications. The EINSTEIN program requires a Fourth Amendment inquiry into two discrete classes of individuals: (1) federal agency employees who access federal networks while at work; and (2) private persons who either contact a federal agency directly or who communicate via the Internet with a federal employee. The Fourth Amendment rights of the former primarily rest on cases dealing with privacy in the workplace and consent, while the latter requires a broader look at privacy and electronic communications.
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