The next Generation Communications Privacy Act

University of Pennsylvania Law Review

Volumn 162, Issue 2, 2014, Pages 373-419

  Kerr, Orin S ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 84893393570     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (142)

1. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986)
2. codified as amended in scattered sections of 18 U.S.C..
3. See generally 2 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE §§ 4.5-4.8(e) (3d ed. 2007).
4. See Charlie Savage, Panel Approves a Bill to Safeguard Email, N.Y. TIMES, Nov. 30, 2012, at B7 (noting that ECPA "is widely seen as outdated");
5. see also Brendan Sasso, Consensus Builds for Requiring Warrant for Email Searches, HILL'S HILLICON VALLEY (Mar. 19, 2013), http://thehill.com/blogs/ hillicon-valley/technology/289035-consensus-builds-for-requiringwarrant- for-email-searches (quoting Representative Jim Sensenbrenner as saying that ECPA's requirement of only a subpoena for access to email records is "outdated and probably unconstitutional").
6. Brendan Sasso & Jennifer Martinez, OVERNIGHT TECH: House to Consider Email Privacy Bill, THE HILL'S HILLICON VALLEY (Feb. 27, 2013), http://thehill.com/blogs/hilliconvalley/ technology/285397-overnight-tech-house- to-consider-email-privacy-bill;
7. see also Sen. Patrick Leahy, Chairman, S. Judiciary Comm., The Agenda of the Senate Judiciary Committee for the 113th Congress (J an. 16, 2013), available at http://www.leahy.senate.gov/press/113-sjcagenda- speech ("[A]s Chairman of the Judiciary Committee, I will keep pushing to update our privacy laws to address emerging technology and the Internet, including the Electronic Communications Privacy Act and cybersecurity laws.").
8. See Christopher Beauchamp, Who Invented the Telephone? Lawyers, Patents, and the Judgments of History, 51 TECH. & CULTURE 854, 855-67 (2010) (noting that patent litigation surrounding the telephone's origins clouds the question of who invented the telephone).
9. See SAMUEL DASH ET AL., THE EAVESDROPPERS 25-34 (1959) (tracing phone wiretapping back to the 1890s and highlighting its growth as a practice into the 1950s);
10. see also Heutsche v. United States, 414 U.S. 898, 899 (1973) (Douglas, J., dissenting) ("[W]e live in a regime where the 'dirty business' of wiretapping runs rampant.").
11. See Berger v. New York, 388 U.S. 41, 46 (1967) (highlighting an 1895 Illinois law outlawing wiretapping and similar legislation enacted ten years later in California).
12. Pub. L. No. 73-416, 48 Stat. 1064
13. codified as amended at 47 U.S.C. §§ 151-609 (1934).
14. For example, the relevant provision of the Communications Act of 1934 stated that "[n]o person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person." Pub. L. No. 73-416, § 605, 48 Stat. 1064, 1104
15. codified at 47 U.S.C. § 605 (1934).
16. The Wiretap Act is sometimes referred to as "Title III" because it was passed as the third title of the Omnibus Crime Control and Safe Streets Act of 1968. Pub. L. No. 90-351, 82 Stat. 197 (1968).
17. The Wiretap Act is codified as amended at 18 U.S.C. §§ 2510-22 (2006 & Supp. V 2012).
18. See 18 U.S.C. § 2511(1)(a) (2006) (stating that anyone who "[i]ntentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication" commits a crime).
19. 388 U.S. 41, 57-60 (1967).
20. 18 U.S.C. § 2518(7) (2006).
21. See Scott v. United States, 436 U.S. 128, 142-43 (1978) (concluding that conversations between the defendant and her mother were reasonably intercepted by government agents);
22. see also United States v. Glover, 681 F.3d 411, 420 (D.C. Cir. 2012) (noting that "determining the reasonableness of minimization efforts is a fact-specific inquiry").
23. See 18 U.S.C. § 2517 (2006).
24. See SEC v. Rajaratnam, 622 F.3d 159, 175 (2d Cir. 2010) (stating that, with respect to material gathered from wiretapped investigations, "the USAO [United States Attorney's Office] may not be authorized to provide these materials to [another] civil enforcement agency").
25. OFFICE OF TECH. ASSESSMENT, U.S. CONG., FEDERAL GOVERNMENT INFORMATION TECHNOLOGY: ELECTRONIC SURVEILLANCE AND CIVIL LIBERTIES (1985), available at http://www.fas.org/ota/reports/8509.pdf [hereinafter "OTA REPORT"].
26. The Wiretap Act also prohibits the interception of "oral communications," which effectively prohibits the use of secret audio recording devices to record the human voice. 18 U.S.C § 2511(1)(a) (2006);
27. United States v. Seidlitz, 589 F.2d 152 (4th Cir. 1978).
28. At the time, the leading precedent on this point was United States v. Turk, 526 F.2d 654 (5th Cir. 1976).
29. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986).
30. This amendment was Title I of ECPA, and it amended 18 U.S.C. §§ 2510-22 (2006).
31. This amendment was Title III of ECPA, and it was codified at 18 U.S.C. §§ 3121-27 (2006).
32. Id. For a helpful discussion of the Pen Register Statute, see In re Order Authorizing Installation of Pen Register, 846 F. Supp. 1555, 1558-61 (M.D. Fla. 1994).
33. The Stored Communications Act was enacted as Title II of ECPA, and it is codified at 18 U.S.C. §§ 2701-11 (2006).
34. 18 U.S.C. § 2702 (2006).
35. 18 U.S.C. § 2702(a)(1) (2006).
36. S. REP. NO. 99-541, at 10-11 (1986).
37. 18 U.S.C. § 2702(a)(2) (2006).
38. In the current version of the statute, the rules on compelled disclosure are found in 18 U.S.C. § 2703
39. while the rules on voluntary disclosure are found in 18 U.S.C. § 2702.
40. See 18 U.S.C. § 2702(c) (2006) (allowing a provider to "divulge a record or other information pertaining to a subscriber").
41. See Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 GEO. WASH. L. REV. 1264, 1298 (2004) (arguing that the SCA along with the Pen Register Act fell short of requiring minimization procedures among other privacy protections).
42. See, e.g., 18 U.S.C. § 2518(6) (2006) (holding that agents may be required to give progress reports to a court).
43. 18 U.S.C. § 2702(b) (2006).
44. See Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: The Big Brother That Isn't, 97 NW. U. L. REV. 607, 611-13 (2003) (discussing the distinction between content and envelope information across different technologies).
45. 18 U.S.C. § 2703(a) (1988).
46. See, e.g., 18 U.S.C. § 2703(c) (1988) (highlighting lower requirements for government access to records like payment information, names, and addresses from remote computing services).
47. Communications Assistance for Law Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994).
48. See United States v. Perrine, 518 F.3d 1196, 1202 (10th Cir. 2008)
49. stating that "the 'specific and articulable facts' standard [in 18 U.S.C. § 2703(d)] derives from the Supreme Court's decision in Terry".
50. From 1986 to 2001, a "pen register" was defined by the statute as "a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached." 18 U.S.C. § 3127(3) (1988).
51. 18 U.S.C. § 3127(3) (2006).
52. The corporate members of the group include a virtual "who's who" of the Internet world. Who We Are, DIGITAL DUE PROCESS, http://digitaldueprocess.org/index.cfm?objectid= DF652CE0-2552-11DF- B455000C296BA163 (last visited Nov. 22, 2013).
53. The Coalition's website explains this proposal in detail: A governmental entity may require an entity covered by ECPA (a provider of wire or electronic communication service or a provider of remote computing service) to disclose communications that are not readily accessible to the public only with a search warrant issued based on a showing of probable cause, regardless of the age of the communications, the means or status of their storage or the provider's access to or use of the communications in its normal business operations. Our Principles, DIGITAL DUE PROCESS COALITION, http://digitaldueprocess.org/index. cfm?objectid=99629E40-2551-11DF-8E02000C296BA163 (last visited Nov. 22, 2013).
54. 18 U.S.C. § 2703(a) (2006).
55. This may be true for two reasons. First, the email may be in electronic storage for more than 180 days, and thus may be covered under 18 U.S.C. § 2703(b).
56. Alternatively, some courts have held that opened email that is stored on a server is held in the provider's capacity as a remote computing service, and thus becomes covered under § 2703(b) immediately after it is opened and the copy is stored. Jennings v. Jennings, 736 S.E.2d 242, 245 (S.C. 2012).
57. See generally About Google Drive, GOOGLE, http://www.google.com/drive/ about.html (last visited Nov. 22, 2013).
58. 18 U.S.C. § 2703(c) (2006 & Supp. V 2012).
59. The Pen Register statute might be thought to regulate prospective access to location information, but Congress indicated a contrary intent in a section of the Communications Assistance to Law Enforcement Act. See 47 U.S.C. § 1002(a)(2)(B) (2006) ("[W]ith regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in section 3127 of title 18), such call-identifying information shall not include any information that may disclose the physical location of the subscriber.").
60. Lower courts are not uniform on this point, but it is the majority view and, in my view, the correct one. See generally In re Application of U.S. For & Order: (1) Authorizing the Use of a Pen Register & Trap & Trace Device; (2) Authorizing Release of Subscriber & Other Info.; and (3) Authorizing Disclosure of Location-Based Servs., 727 F. Supp. 2d 571, 577-78 (W.D. Tex. 2010).
61. 18 U.S.C. § 3122(2)(b)(2) (2006).
62. 18 U.S.C. § 2703(c)(2) (2006 & Supp. V 2012).
63. I have also testified about the Digital Due Process Coalition principles before the House Judiciary Committee. See Electronic Communications Privacy Act Reform: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 33-42 (2010) (Statement of Orin S. Kerr) (highlighting some of the criticisms of the Coalition's principles presented in this Article).
64. 388 U.S. 41, 59 (1967).
65. See R.J.T. Morris & B.J. Truskowsi, The Evolution of Storage Systems, 42 IBM SYS. J. 205, 205-06 (2003) (examining the evolution of data storage systems and their costs).
66. See 18 U.S.C. §§ 2510-22 (2006) (extending the minimization requirements of the Wiretap Act from telephone to data transmissions).
67. John Villasenor, Recording Everything: Digital Storage as an Enabler of Authoritarian Governments, BROOKINGS INST. 3 (Dec. 14, 2011), http://www.brookings.edu/~/media/research/files/papers/2011/12/ 14%20digital%20storage%20villasenor/1214-digital-storage- villasenor.pdf.
68. See Paul Festa, Google to Offer Gigabyte of Free Email, CNET NEWS (Apr. 1, 2004), http://news.cnet.com/2100-1032-5182805.html (highlighting how Gmail's jump to one gigabyte of storage dwarfed previous storage limits of email providers).
69. Nathan Ingraham, Google Unifies Gmail, Drive, and Photo Storage: All Users Now Get 15GB of Shared Space, VERGE (May 13, 2013), http://www.theverge. com/ 2013/5/13/4326994/google-unifies-gmail-photo-and-drive-storage.
70. Indeed, the amount of space provided to Gmail users rose from 10GB to 15GB in between drafts of this Article. See Chris Ziegler, Gmail Bumps Free Storage to 10GB, VERGE (Apr. 24, 2012), http://www.theverge.com/2012/4/24/ 2971885/gmail-bumps-free-storage-to-10gb (reporting on the increase to 10GB and predicting that, "as always," the amount of free storage will continue to "creep up over time").
71. Mike Barton, How Much Is Your Gmail Account Worth?, WIRED (J uly 25, 2012), http://www.wired.com/insights/2012/07/gmail-account-worth.
72. See Carly Carioli, When the Cops Subpoena Your Facebook Information, Here's What Facebook Sends the Cops, PHOENIX (Apr. 6, 2012), http://blog.thephoenix.com/ blogs/phlog/archive/2012/04/06/when-police-subpoena- your-facebook-information-heres-whatfacebook- sends-cops.aspx (noting, among other things, how Facebook reveals little of its involvement in subpoenas from investigators or how many the site serves).
73. See Subpoena: Philip Markoff's Facebook Account, SCRIBD, http://www.scribd.com/ fullscreen/88465177?access-key=key-247mvzrfrh1m1azdsoai (last visited Nov. 22, 2013).
74. See Samantha Felix, This Is How Facebook Is Tracking Your Internet Activity, BUS. INSIDER (Sept. 9, 2012), http://www.businessinsider.com/this-is- how-facebook-is-tracking-your-Internetactivity- 2012-9?op=1 (noting how Facebook uses cookies to both track users and store their information).
75. See ADMINISTRATIVE OFFICE OF THE U.S. COURTS, Report of the Director of the Administrative Office of the United States Courts on Applications for Orders Authorizing or Approving the Interception of Wire, Oral, or Electronic Communication, (2013), available at http://www.uscourts.gov/ Statistics/WiretapReports/wiretap-report-2012.aspx (providing the annual report online).
76. Report of the Director of the Administrative Office of the United States Courts on Applications for Orders Authorizing or Approving the Interception of Wire, Oral, or Electronic Communication, ADMIN. OFFICE OF THE U.S. COURTS, at tbl.6 (June 2013), http://www.uscourts.gov/uscourts/Statistics/WiretapReports/ 2012/Table6.pdf.
77. Transparency Report: United States, GOOGLE, http://www.google.com/ transparencyreport/userdatarequests/US (last visited Nov. 22, 2013).
78. See Peter Swire, From Real-Time Intercepts to Stored Records: Why Encryption Drives the Government to Seek Access to the Cloud 7 (Ctr. for Interdisciplinary Law & Policy Studies at the Moritz College of Law, Working Paper No. 175, 2012), available at http://papers.ssrn.com/id=2038871 (noting that logistical and technical issues are driving the emphasis on stored communication).
79. See Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1214 (2004) (outlining areas of coverage limitation for the SCA).
80. Tim Berners-Lee invented the World Wide Web in 1990, and the first browser was introduced in 1994. See TIM BERNERS-LEE & MARK FISCHETTI, WEAVING THE WEB: THE ORIGINAL DESIGN AND ULTIMATE DESTINY OF THE WORLD WIDE WEB 69 (1999);
81. see also NICHOLAS CARR, THE BIG SWITCH: REWIRING THE WORLD, FROM EDISON TO GOOGLE 17 (2008) (describing the introduction of the mosaic browser and the intention of gearing toward maximizing the number of users).
82. See, e.g., ComScore Releases March 2012 U.S. Search Engine Rankings, COMSCORE (Apr. 11, 2012), http://www.comscore.com/Insights/Press-Releases/2012/ 4/comScore-Releases-March-2012-U.S.-Search-Engine-Rankings (displaying the total searches in February and March of 2012).
83. Thomas Crampton, Google to Cut Back on How Long It Keeps Search History, N.Y. TIMES (June 12, 2007), http://www.nytimes.com/2007/06/12/business/ worldbusiness/12iht-google.4.6113031.html?-r=0.
84. 18 U.S.C. § 2510(15) (2006) defines an ECS as "any service which provides to users thereof the ability to send or receive wire or electronic communications." This limits ECS providers to providers of connectivity or messaging of covered wire or electronic communications.
85. The Senate Report accompanying the passage of ECPA offered the following explanation of the concept of a "remote computing service": In the age of rapid computerization, a basic choice has faced the users of computer technology. That is, whether to process data in-house on the user's own computer or on someone else's equipment. Over the years, remote computer service companies have developed to provide sophisticated and convenient computing services to subscribers and customers from remote facilities. Today businesses of all sizes- hospitals, banks and many others-use remote computing services for computer processing. This processing can be done with the customer or subscriber using the facilities of the remote computing service in essentially a time-sharing arrangement, or it can be accomplished by the service provider on the basis of information supplied by the subscriber or customer. S. REP. NO. 99-541, 10-11 (1986).
86. At least one major search engine, Google, claims to be covered by the SCA on the ground that it provides RCS. In litigation over the disclosure of Google search queries, Google argued that its services are protected by the SCA: Google processes search requests as directed by, and for, its users who in turn retrieve the search results of their choosing from Google's index, or Google sends the results by email or text messages to individuals, to wireless phones or other designated mobile devices. Said in plain language, users rely on the remote computer facilities of Google to process and store their search requests and to retrieve by elecelectronic transmission their search results. Google's Opp'n to the Gov't's Motion to Compel at 12, Gonzales v. Google, 234 F.R.D. 674 (N.D. Cal. 2006) (No. 06-80006)
87. 2006 WL 543697, at 12 (citation omitted).
88. See Paul Ohm, The Fourth Amendment in a World Without Privacy, 81 MISS. L.J. 1309, 1314 (2012) (describing the "always on" nature of modern communications devices).
89. See FACEBOOK, http://facebook.com. As if any cite were necessary.
90. See Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 STAN. L. REV. 1005, 1019-22, 1034-35 (2010) ("To apply the Fourth Amendment to the Internet in a technologically neutral way, access to the contents of communications should be treated like access to evidence located inside. . . . [and] access to noncontent information should be treated like access to evidence found outside.").
91. 631 F.3d 266 (6th Cir. 2010).
92. In re Applications for Search Warrants for Info. Associated with Target Email Address, 2012 WL 4383917, at 5 (D. Kan. Sept. 21, 2012) ("The Court finds the rationale set forth in Warshak persuasive and therefore holds that an individual has a reasonable expectation of privacy in emails or faxes stored with, sent to, or received through an electronic communications service provider.").
93. United States v. Ali, 870 F. Supp. 2d 10, 39 n.39 (D.D.C. 2012) (recognizing a reasonable expectation of privacy in the content of emails).
94. See State v. Hinton, 280 P.3d 476, 483 (Wash. Ct. App. 2012) ("While Warshak does not aid Hinton, its comparison of emails with traditional forms of communication is helpful and we adopt it to hold that text messages deserve privacy protection similar to that provided for letters.").
95. R.S. ex rel. S.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F. Supp. 2d 1128, 1142 (D. Minn. 2012) ("The Court agrees that one cannot distinguish a password-protected private Facebook message from other forms of private electronic correspondence.").
96. See Hinton, 280 P.3d at 483.email
97. In re Applications for Search Warrants, 2012 WL 4383917, at 5.
98. United States v. D'Andrea, 497 F. Supp. 2d 117, 121-22 (D. Mass. 2007).
99. See, e.g., United States v. Bowen, 689 F. Supp. 2d 675, 682 (S.D.N.Y. 2010);
100. United States v. Cioffi, 668 F.Supp.2d 385, 396 (E.D.N.Y. 2009);
101. United States v. McDarrah, 2006 WL 1997638, at 9-10 (S.D.N.Y. July 17, 2006)
102. aff'd, 351 F. App'x 558 (2d Cir. 2009).
103. But see In re Applications for Search Warrants, 2012 WL 4383917, at 3-5 (discussing the Fourth Amendment question).
104. See United States v. Jacobsen, 466 U.S. 109, 113 (1984) (noting that the Fourth Amendment does not regulate private searches).
105. See United States v. Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008) (holding that noncontent information such as IP addresses and the to-from information of email addresses is not protected by the Fourth Amendment).
106. See generally Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 805, 857-87 (2004) (discussing the "institutional limitations of judicial rulemaking" and the "significant institutional advantage" of legislatures with respect to the regulation of "criminal investigations involving new technologies").
107. 480 U.S. 340, 342 (1987).
108. I discussed how the Krull good-faith exception has delayed the case law on the Fourth Amendment implications of government access to email in Orin S. Kerr, Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States, 2011 CATO SUP. CT. REV. 237, 257 (2011).
109. See, e.g., Maryland v. Garrison, 480 U.S. 79, 84-85 (1987) (stating that the particularity requirement allows only warrants that offer particular and specific descriptions of places that are to be searched).
110. U.S. CONST. AMEND. IV.
111. The report is available at http://www.scribd.com/fullscreen/88465177? access-key=key-247mvzrfrh1m1azdsoai.
112. See, e.g., In re U.S. ex rel. Order Pursuant to 18 U.S.C. § 2703(d), Nos. 12-670, 12-671, 12- 672, 12-673, 2012 WL 4717778, at 1 (S.D. Tex. Sept. 26, 2012) (noting how the lack of government protocol on collecting information from cell tower dumps raises privacy issues).
113. 18 U.S.C. § 2703(c)(1) (2006).
114. See In re U.S. ex rel. Order Pursuant to 18 U.S.C. § 2703(d), 2012 WL 4717778, at 4.
115. In re Applications for Search Warrants for Info. Associated with Target Email Address, 2012 WL 4383917, at 10-11 (D. Kan. Sept. 21, 2012).
116. See United States v. Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008) (holding that the Fourth Amendment does not protect noncontent information such as IP addresses and the to- from information of email addresses).
117. See Reno v. ACLU, 521 U.S. 844, 849-50 (1997).
118. See United States v. Peterson, 812 F.2d 486, 492 (9th Cir. 1987) (holding that the Wiretap Act "has no extraterritorial force");
119. U.S. v. Toscanino, 500 F.2d 267, 279-80 (2d Cir. 1974) (finding that the "federal statute governing wiretapping and eavesdropping has no application outside the United States" (citation omitted)).
120. United States v. Cotroni, 527 F.2d 708, 711 (2d Cir. 1975).
121. F. Supp. 2d 1363, 1369 (N.D. Ga. 2001).
122. No. 08-1068, 2009 WL 4430297 (N.D. Cal. Dec. 2, 2009).
123. citing United States v. Peterson, 812 F.2d 486, 492 (9th Cir. 1987);
124. Stowe v. Devoy, 588 F.2d 336, 341 (2nd Cir. 1978);
125. United States v. Toscanino, 500 F.2d 267, 279 (2d Cir. 1974).
126. See Zhang, 2009 WL 4430297, at 3 ("ECPA did not amend the portion of the Wiretap Act that made no provision for obtaining authorization for wiretaps in a foreign country, nor did ECPA, in amending the Wiretap Act and creating the SCA, reference in any manner activities occurring outside the United States.").
127. See '60 Minutes' Report: How Online Gamblers Unmasked Cheaters, CNET.COM (Nov. 30, 2008), http://news.cnet.com/60-minutes-report-how-online-gamblers- unmasked-cheaters (reporting that members of the Mohawk Kahnawake nation register and service "more than 60% of the world's Internet gaming activity").
128. Gmail Usage Per Country, APPAPPEAL.COM, http://www.appappeal.com/maps/ gmail (last visited Nov. 22, 2013).
129. Quentin Fottrell, Facebook Loses 1.4 Million Active Users in U.S., MARKETWATCH (Jan. 15, 2013), http://articles.marketwatch.com/2013-01-15/finance/ 36346107-1-active-users-facebooksocial- media.
130. Courts have encountered similar questions while identifying the location of an intercept under the Wiretap Act for purposes of obtaining a wiretap order in a particular district. See United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997) (holding that a judge in Wisconsin was statutorily authorized to order a wiretap on a cellular phone regardless of whether the phone or listening post was located in Wisconsin).
131. Vivek Mohan & John Villasenor, Decrypting the Fifth Amendment: The Limits of Self- Incrimination in the Digital Era, 15 U. PA. J. CON. L. HEIGHT. SCRUTINY 11, 20-21 (2012) ("Google Docs or Amazon's cloud-based simple storage service . . . might sometimes choose to store multiple copies of a document, or to partition a single copy of the document into separately stored fragments.").
132. 671 F.3d 726, 729 (9th Cir. 2011) ("[T]he plain language of ECPA extends its protections to noncitizens. The Court is therefore obligated to enforce the statute as written.").
133. Tanguy Van Overstraeten & Ronan Tigner, Belgium-Yahoo! Saga Continues: Yahoo! Must Not Hand Over Personal Data to the Public Prosecutor, LINKLATERS (J an. 30, 2012), http://www.linklaters.com/Publications/ Publication1403Newsletter/TMT-Newsletter-January- 2012/Pages/9-Belgium-Yahoo!- saga-continues-Yahoo-personal-data-public-prosecutor.aspx (last visited Nov. 22, 2013).
134. See 18 U.S.C. § 2711(4) (2006).
135. See generally ORIN S. KERR, COMPUTER CRIME LAW 752-59 (3d ed. 2013) (discussing the legal regime for letters rogatory and mutual legal assistance in computer crime cases).
136. Notably, U.S. criminal laws have been expanded extraterritorially to enable U.S. assistance to foreign governments. By making a foreign crime also a crime inside the United States, investigators in the United States can open a domestic investigation and assist foreign governments when evidence happens to be located inside the United States. See Computer Crime and Intellectual Property Section (CCIPS), Field Guidance on New Authorities that Relate to Computer Crime and Electronic Evidence Enacted in the USA Patriot Act of 2001, CYBERCRIME.GOV (Nov. 5, 2001), http://web.archive.org/web/20011204213823/ (discussing the extraterritorial expansion of the Computer Fraud and Abuse Act as a way to assist foreign computer crime investigations).
137. See Susan Freiwald, Online Surveillance: Remembering the Lessons of the Wiretap Act, 56 ALA. L. REV. 9, 80-84 (2004) (arguing that Internet surveillance should adopt the highly protective standards of the Wiretap Act).
138. See, e.g., In re Applications for Search Warrants for Info. Associated with Target Email Address, Nos. 12-8119, 12-8191, 2012 WL 4383917, at 4-5 (D. Kan. Sept. 21, 2012) (applying Fourth Amendment protections to emails and faxes). Of course, Congress could enforce a particularity limit that is more restrictive than the constitutional limit.
139. 18 U.S.C § 2703(d) (2006).
140. S. REP. NO. 99-541, at 31 (1986).
141. See United States v. McGuire, 307 F.3d 1192, 1202 (9th Cir. 2002) ("We interpret Congress's 'common sense' idea of electronic minimization to mean that law enforcement in some circumstances may look at every communication. Congress intended that the pool of investigative material be filtered.").
142. See, e.g., Marketa Trimble, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 567, 586-99 (2012) (discussing how geolocation tools, which currently use IP addresses, can be used to determine an Internet user's physical location).