Contributed by Dean Milliana, content coordinator interning with
Among the first lawsuits of its kind in america, a lawsuit was filed against John Oliver who called a program on the government run tv network PBS, entitled “Last Week 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 average American is watched by six government agencies. Six. I want to make this flawlessly clear, if you watch last week night`s show you can confirm this fact for yourself.
PB: I was happy to do this. Oliver: You won`t believe what I found when I viewed the decision detail records of everybody 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: The next time you are tempted to assault a stranger in public areas, remember that this is actually the national 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 talked about the decision detail records going back month. The ACLU`s complaint stated:
“Oliver took a clip of a month`s worth of phone records and displayed them on national tv as a means of making a spot about the government`s fascination with the private lives of citizens. It might be patently unconstitutional for a private party to permit such disclosure, however the national government doesn`t 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. But it was wrong in its use of the past tense. The federal government has not “looked” as of this information. It has obtained this information by a subpoena and the info in Oliver`s clip is lawfully on its files. Oliver`s clip was a kind of fishing expedition. A fishing expedition is where private individuals enter someone else`s property to check out information which might be used to embarrass, harm, or destroy the private individual. Oliver`s act is not only wrong; it is within bad taste and a negative taste act can cause you personal injury. Oliver must be reminded about the Fourth Amendment, not the ACLU just.”
The clip did spark an important debate on the use of past data in forensic examination, but was Oliver`s use of that “past data” legal? The ACLU and Oliver both claim that the clip was found in part to produce a point about the need for people to disclose 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 truth that when a person answers a subpoena to produce a little bit of information, the government sometimes must get a search warrant to get any extra information, or to look at the entire data set. A search warrant would allow the 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 obtaining a search warrant in a federal case. As discussed in greater detail in an earlier article, the main element question is if the government used the “unidentified source” of Oliver`s data. Here, the government claimed that Oliver`s call detail records were an “unidentified source” of the FBI`s call detail records, which Oliver`s use of a clip of those 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 main element pieces of information he had a need to corroborate his defense. Oliver hadn`t reviewed the decision detail records actually. He knew nothing about any subpoenas to produce the records.
However, Oliver`s use of the clip did donate to the government`s obtaining a search warrant to examine a month`s worth of phone records. Oliver`s use of a clip was therefore legal, and it did not hurt Oliver that he did not actually have the main element pieces of information he had a need to corroborate his defense.
The key question is if the government used the “unidentified source” of Oliver`s data. Here, the government claimed that Oliver`s call detail records were an “unidentified source” of the FBI`s call detail records, which Oliver`s use of a clip of those records was unprotected conduct. Oliver`s use of a clip was therefore legal, and it did not hurt Oliver that he did not actually have the main element pieces of information he had a need to corroborate his defense. Oliver hadn`t actually reviewed the decision detail records. He knew nothing about any subpoenas to produce the records.
As discussed in an earlier article, the government`s claim has ended his conduct of looking at a clip of phone records in a browser window. As other writers have argued, this argument may fail because the government doesn`t need to prove that Oliver actually viewed the net page with the phone records, only that Oliver viewed the net page. As many other writers have argued, Oliver is absolve to take a look at any website, including a web link to a full page that does not include phone records, and which will not identify the info in question.
Oliver`s reliance on USA v. Pazant, where in fact the Supreme Court discovered that the use of a 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 computer 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 full case, the government obtained an order for Oliver`s call detail records pursuant to a grand jury subpoena, including specific instructions to identify the foundation of the records that were sought. The Government, counting on USA v. Pazant, decided that Oliver`s conduct of looking at a URL within the browser`s address bar was insufficient for him to say 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 later retrieval, he could not assert the defenses afforded by the Stored Communications Act.
The Court of Appeals, and the district court in this full case, have rejected arguments that Oliver should be permitted to say his state`s wiretap claim as a function of his use of a bookmark to assist him in accessing a foreign website. While it may be possible, depending on the circumstances, that Oliver would have a claim against the government if he accessed the webpage, the claims asserted by the government weren`t founded on a use of a URL within the browser`s address bar.
Rather, the government argued that Oliver`s access of the URL is highly recommended a use of the Stored Communications Act. As the government relied on that reasoning, the claim was denied and the wiretap case against Manning was permitted to stand.
I do not find it essential to address this true point. The claim that Manning accessed a URL with the sole purpose of accessing a foreign website had not been the kind of access that entitled Manning to say the defenses provided by the Stored Communications Act, but was instead a second use of the URL, and had not been grounds for Manning to say the defenses thus.
As the Stored Communications Act allows plaintiffs to say defenses based on the circumstances of their access to the webpage, a primary use defense is not required. In fact, I think that needs to be the standard. The principal purpose of the use of a URL is defined as “the main one intended by the web site operator in directing users to the URL.” However, if the defendant initiates the use of the URL, then it will only be accessible to the defendant`s usage, not the intended use of the web site operator.
I disagree with the Court of Appeals` decision. It had been wrong on both legal theory and history.
Initially, this seems such as a slam dunk case. The court`s reasoning is apparently that because Manning accessed the webpage because he was on a work computer and on work premises, he will need to have designed to access the webpage on behalf of his employer. And what do the facts show? Manning accessed the page because he previously an urgent need to contact someone. It may have even been because he previously an urgent need to contact 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. Then again, this is actually the first-time this decision has been passed down in an injury context. It is certainly subject to a different interpretation than when it was passed down in the telecommunications context. For the reason that context, Stored Communications (later known as Cogent Communications) was trying to decide the issue of if a supervisor could be liable for a subordinate`s access of the supervisor`s work computer. If so, Cogent argued that supervisors had a duty of care for the subordinates they employed, and because the supervisor`s access to the task computer had not been for work related purposes, the supervisor could not be liable. If so, Cogent held the supervisor liable for the subordinate`s access to the computer. However in this full 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 decided to send a contact to a customer support agent, explaining his actions. The court relied on your choice 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 chance to use the airport`s terminal, and informed the passenger that they could not be held accountable for any actions on the passenger`s behalf if the passenger did not do anything, the airline lost the 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 utilized for business purposes, the passenger had used the airline`s facilities for work related purposes, and the airline retained the 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 chance 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 to terminate Manning`s access. The court ruled that Stored hadn`t sent Manning a contact of “instructions” to access the computer.
The court discovered that the airline had sent Manning a contact 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 system. Manning`s access to the system was terminated when the aircraft reached cruising altitude and Manning became aware that he had been videotaped by the security camera.
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