Contributed by Dean Milliana, content coordinator interning with
| Ward Maedgen Accident Attorneys |
As one of the first lawsuits of its kind in the United States, a lawsuit was filed against John Oliver who called a 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 law firm. The program was entitled “Government Bullying” and included the following 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 the other day night`s show you can confirm this fact for yourself.
PB: I used to be happy to do so. Oliver: You won`t believe what I found when I viewed the decision detail records of everyone who called this number, week for the last, or for the last six weeks. (The segment went on for about 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 areas, remember that this is actually the government watching you, watching every move. PB: Thank you. Oliver: But of course, the part that really got people`s goat was the part where Oliver talked about the decision detail records for the last month. The ACLU`s complaint stated:
“Oliver took a clip of a month`s worth of phone records and displayed them on national television as a way of making a spot about the government`s desire for the private lives of citizens. It would be patently unconstitutional for an exclusive party to allow such disclosure, however the 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. Nonetheless it was wrong in its use of the past tense. The government hasn`t “looked” as of this information. They have obtained these details by a subpoena and the information 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 and look for information which may be used to embarrass, harm, or destroy the private individual. Oliver`s act isn`t 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 just the ACLU.”
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 used in part to make a point about the necessity for people to disclose their data when these are subpoenaed. So far as the Fourth Amendment can be involved, there is no such requirement. Oliver`s clip merely demonstrated the reality 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 even to look at the entire data set. A search warrant allows the government to examine someone`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 more detail in an earlier article, the key question is whether 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, and that 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 key bits of information he needed 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 finding 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 key bits of information he needed to corroborate his defense.
The key question is whether 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, and that 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 key bits of information he needed 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 is over 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 government does not need to prove that Oliver actually viewed the web page with the telephone records, only that Oliver viewed the web page. As many other writers have argued, Oliver is free to look at any website, including a web link to a page that will not include phone records, and which will not identify the data in question.
Oliver`s reliance on United States v. Pazant, where in fact the Supreme Court found 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 full 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, which included specific instructions to identify the source of the records which were sought. The national government, depending on United States 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 later retrieval, 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 a bookmark to aid him in accessing a foreign website. While it could be possible, with respect to the circumstances, that Oliver could 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 should be considered 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 allowed to stand.
I really do not find it essential to address this true point. The claim that Manning accessed a URL with the sole 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 had not been grounds for Manning to assert the defenses thus.
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 a 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`ll 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 must have designed to access the webpage with respect to his employer. And what do the known facts show? Manning accessed the page because he previously an urgent need to contact someone. It could have even been because he previously an urgent need to contact his wife. As such, he did not view the webpage for personal use, but viewed the webpage with respect to his employer instead. Therefore, he violated the Stored Policy. This decision appears 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. That is definitely 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 responsible for a subordinate`s access of the supervisor`s work computer. In that case, Cogent argued that supervisors had a duty of look after the subordinates they employed, and because the supervisor`s access to the task computer had not been for work related purposes, the supervisor cannot be liable. In that case, Cogent held the supervisor responsible for the subordinate`s access to the computer. But 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 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 chance 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 found that when the airline gave the passenger a ticket for a flight to be used for business purposes, the passenger had made use of 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 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 right to terminate Manning`s access. The court ruled that Stored hadn`t sent Manning an email of “instructions” to gain access to the computer.
The court found that the airline had sent Manning an email of “instructions” to gain access to the computer and that Manning had accessed the computer via the airline`s Internet system, not via Stored`s system. The court determined that Stored had not been responsible for Manning`s actions as it hadn`t given the passenger instructions to gain access to the system. Manning`s access to the system was terminated when the aircraft reached cruising altitude and Manning became aware that he was being videotaped by the security camera.