10. THIRD-PARTY INFORMATION AND THE CLOUD

0.    This chapter treats several interconnected topics, on which there is a great deal of scholarship. Here is a sampler of relevant sources.
       Subpoenas: Christopher Slobogin, “Subpoenas and Privacy,” DePaul L. Rev. 54 (2005): 805; William J. Stuntz, Commentary, “O. J. Simpson, Bill Clinton, and the Trans-Substantive Fourth Amendment,” Harv. L. Rev. 114 (2001): 842.
       Electronic Communications Privacy Act (ECPA): Patricia L. Bellia, “Surveillance Law Through Cyberlaw’s Lens,” Geo. Wash. L. Rev. 72 (2004): 1375; Orin S. Kerr, “A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It,” Geo. Wash. L. Rev. 72 (2004): 1208; Orin S. Kerr, “Lifting the ‘Fog’ of Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law,” Hastings L.J. 54 (2003): 805; Dierdre K. Mulligan, “Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act,” Geo. Wash. L. Rev. 72 (2004): 1557.
       Cell phone location tracking: Brian L. Owsley, “The Fourth Amendment Implications of the Government’s Use of Cell Tower Dumps in Its Electronic Surveillance,” U. Pa. J. Const. L. 16 (2013): 1; Haley Plourde-Cole, “Back to Katz: Reasonable Expectation of Privacy in the Facebook Age,” Fordham Urb. L.J. 38 (2010): 571; Ian James Samuel, Note, “Warrantless Location Tracking,” N.Y.U. L. Rev. 83 (2008): 1324.
       National Security Letters (NSLs): Andrew E. Nieland, Note, “National Security Letters and the Amended Patriot Act,” Cornell L. Rev. 92 (2007): 1208.
       Encryption: Steven M. Bellovin, Matt Blaze, Sandy Clark, and Susan Landau, “Lawful Hacking: Using Existing Vulnerabilities for Wiretapping on the Internet,” Nw. J. Tech. & Intell. Prop. 12 (2014): 1; Christopher Soghoian, “Caught in the Cloud: Privacy, Encryption, and Government Back Doors in the Web 2.0 Era,” J. Telecomm. & High Tech. L. 8 (2010): 359; Steven M. Bellovin, Matt Blaze, Sandy Clark, and Susan Landau, “Going Bright: Wiretapping Without Weakening Communications Infrastructure,” IEEE Security & Privacy, Jan./Feb. 2013, at 62, available at www.cs.columbia.edu/~smb/papers/GoingBright.pdf.

0.    See Sogohian, “Caught in the Cloud: Privacy, Encryption, and Government Back Doors in the Web 2.0 Era,” supra note 1, at 424 (noting that the combination of the third-party doctrine and the widespread adoption of cloud computing services makes it very easy for law enforcement to obtain digital data).

0.    In re § 2703(d) Order, 787 F. Supp. 2d 430 (E.D. Va. 2011); In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 121 (E.D. Va. 2011). The government’s order also sought account information for each account registered to or associated with WikiLeaks; Julian Assange; and Bradley Manning. Only Appelbaum, Gonggrijp, and Jonsdottir fought the D-order in this case.

0.    See “Who Has Your Back?,” Elec. Frontier Found., 2011, www.eff.org/who-has-your-back-2011 (grading technology companies on defense of consumer privacy from government intrusions); Interview by Barry Friedman with Ben Lee, June 2, 2015 (hereafter Lee Interview).

0.    In re § 2703(d) Order, 787 F. Supp. 2d at 434 (secret court filing); In re Application, 830 F. Supp. 2d at 139 (“[It is difficult] to oppose an order because the individual does not know about it.”); Scott Shane and John F. Burns, “Twitter Records in Wikileaks Case Are Subpoenaed,” N.Y. Times, Jan. 9, 2011, at A1 (front-page news); Barton Gellman, “Twitter, Wikileaks and the Broken Market for Consumer Privacy,” Time, Jan. 14, 2011, http://techland.time.com/2011/01/14/twitter-wikileaks-and-the-broken-market-for-consumer-privacy/. It is Twitter’s policy to disclose law enforcement requests to its users, but this is unusual; most requests remain secret. Somini Sengupta, “Twitter’s Free Speech Defender,” N.Y. Times, Sept. 3, 2012, at B1 (profiling Twitter’s erstwhile head lawyer and describing Twitter’s defense of user privacy as a business policy; contrasting other social networks and tech giants that have violated user privacy to comply with government demands); Declan McCullagh, “DOJ Sends Order to Twitter for WikiLeaks-Related Account Info,” CNET, Jan. 7, 2011, http://news.cnet.com/8301-31921_3-20027893-281.html (recounting Gonggrijp’s belief that, unlike Twitter, other companies quietly complied with requests for information without notifying users).

0.    In re § 2703(d), 787 F. Supp. 2d at 435, 437, 439.

0.    In re Application, 830 F. Supp. 2d at 129 (ruling Twitter lacked standing); Lee Interview, supra note 4; Memorandum in Support of Non-Party Twitter, Inc.’s Motion to Quash § 2703(d) Order at 1, People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct., May 7, 2012), 2012 WL 1644956 (“Twitter will often know little or nothing about the underlying facts…”); Naomi Gilens, ACLU Speech, Privacy and Technology Project, “Twitter Forced to Hand Over Occupy Wall Street Protester Info,” Sept. 14, 2012, 5:28 p.m., www.aclu.org/blog/twitter-forced-hand-over-occupy-wall-street-protester-info (commenting on third-party companies in the context of another case in which Twitter was forced to supply the tweets of a protester to facilitate his prosecution).

0.    That said, Twitter played a key role in the Arab Spring, and in the Occupy movement in the United States, as well as in many protests around officer-involved shootings. The profound importance of social networking and mass texts to the nascent Egyptian revolution in 2011 led to the government’s ill-fated attempt to undermine protests by shutting down Internet access. See, e.g., Matt Richtel, “Egypt Halts Most Internet and Cell Service, and Scale of Shutdown Surprises Experts,” N.Y.Times, Jan. 29, 2011, at A13.

0.    In re Application, 830 F. Supp. 2d at 133.

0.  See Alex Kozinski and Eric S. Nguyen, “Has Technology Killed the Fourth Amendment?” Cato Sup. Ct. Rev. 2011–2012: 18–19; Soghoian, “Caught in the Cloud,” supra note 1, at 424. Some privacy advocates have noted the potentially invasive use of energy data. See, e.g., Matthew Cagle, ACLU Blog, “Call Logs? Try Kilowatts: Reports Reveal Demands for California Energy Data,” June 18, 2013, 4:34 p.m., www.aclu.org/blog/call-logs-try-kilowatts-reports-reveal-demands-california-energy-data (reporting thousands of requests for customer energy usage data disclosed by California utility companies pursuant to legal demands).

0.  In re Application, 830 F. Supp. 2d at 117 (“The purpose of a criminal investigation is to find out whether crimes have occurred.”); People v. Harris, 945 N.Y.S.2d 505, 512 (Crim. Ct. 2012) (“[T]he legal threshold for issuing a subpoena is low,”); James B. Comey, Director, Federal Bureau of Investigation, Remarks at the Brookings Inst., Oct. 16, 2014, www.fbi.gov/news/speeches/going-dark-are-technology-privacy-and-public-safety-on-a-collision-course (hereinafter Comey Remarks).

0.  Sengupta, “Twitter’s Free Speech Defender,” supra note 5; Interview by Barry Friedman with Marc Rotenberg, Sept. 18, 2015 (hereinafter Rotenberg Interview).

0.  Hoffa v. United States, 385 U.S. 293, 302–303 (1966) (“The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.” (quoting Lopez v. United States, 373 U.S. 427, 465 (1963) (Brennan, J., dissenting))); see also United States v. White, 401 U.S. 745, 764–65, (1971) (Douglas, J., dissenting) (“I can imagine nothing that has a more chilling effect on people speaking their minds and expressing their views on important matters. The advocates of that regime should spend some time in totalitarian countries and learn firsthand the kind of regime they are creating here.”).

0.  United States v. Miller, 425 U.S. 435, 436–37, 442–43 (1976).

0.  Id. at 438.

0.  Smith v. Maryland, 442 U.S. 735, 737 (1979).

0.  Id. at 744–45.

0.  Smith, 442 U.S. at 748 (Stewart, J., dissenting). On Katz v. United States, 389 U.S. 347 (1967), see supra Chapter 9.

0.  See In re Application of the United States of America for Historical Cell Site Data, 724 F.3d 600, 611–13 (5th Cir. 2013) (using Smith as a basis for permitting location tracking); Liberty and Security in a Changing World: Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies (2013), 83, www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf (noting Congress’s reliance on Smith in authorizing the Foreign Intelligence Surveillance Court to order phone service providers to enable call information tracking, but acknowledging that “there is some question today whether [Smith is] still good law); Memorandum from Jack L. Goldsmith, III, Ass’t Att’y Gen., for the Att’y Gen., Review of the Legality of the STELLAR WIND Program, May 6, 2004, at 101, 106–107, https://fas.org/irp/agency/doj/olc/stellar.pdf (citing Smith in justification of NSA collection of email metadata); Eric Lichtblau, “More Demands on Cell Carriers in Surveillance,” N.Y. Times, July 9, 2012, at A1 (cell phone companies); Michael Isikoff, “FBI Tracks Suspects’ Cell Phones Without a Warrant,” Newsweek, Feb. 18, 2010, 7:00 p.m., www.newsweek.com/fbi-tracks-suspects-cell-phones-without-warrant-75099 (quoting Sprint Nextel’s “manager of electronic surveillance”).

0.  Miller, 425 U.S. at 437 (emphasis added).

0.  United States v. Morton Salt Co., 338 U.S. 632, 642–43 (1950) (“merely on suspicion”); Branzburg v. Hayes, 408 U.S. 665, 701 (1972) (quoting United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970) (“not fully carried out”)); United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991) (“broad brush”); In re Application, 830 F. Supp. 2d at 117 (“The purpose of a criminal investigation is to find out whether crimes have occurred.”). On the history of grand juries, see generally Mark Kadish, “Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process,” Fla. St. U. L. Rev. 24 (1996): 5–6; Roger Roots, “If It’s Not a Runaway, It’s Not a Real Grand Jury,” Creighton L. Rev. 33 (2000): 830.

0.  Roots, “If It’s Not a Runaway, It’s Not a Real Grand Jury,” supra note 21, at 822; Hale v. Henkel, 201 U.S. 43, 59 (1906) (“most valuable function”).

0.  Kadish, “Behind the Locked Door of an American Grand Jury,” supra note 21, at 11 (Zenger); Kevin K. Washburn, “Restoring the Grand Jury,” Fordham L. Rev. 76 (2008): 2344 (Stamp Act); Roots, “If It’s Not a Runaway, It’s Not a Real Grand Jury,” supra note 21, at 833 (Boss Tweed).

0.  See United States v. Dionisio, 410 U.S. 19, 23 (1973) (Douglas, J., dissenting) (“It is, indeed, common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive.”); Roots, “If It’s Not a Runaway, It’s Not a Real Grand Jury,” supra note 21, at 823–27 (describing the waning independence of grand juries); Stuntz, “O. J. Simpson, Bill Clinton, and the Trans-Substantive Fourth Amendment,” supra note 1, at 864n81. The “ham sandwich” saying originates with Chief Judge Sol Wachtler of the New York Court of Appeals, and was first quoted in Marcia Kramer and Frank Lombardi, “New Top State Judge: Abolish Grand Juries and Let Us Decide,” N.Y. Daily News, Jan. 31, 1985, at 3 (“Wachtler, who became the state’s top judge earlier this month, said district attorneys now have so much influence on grand juries that ‘by and large’ they could get them to ‘indict a ham sandwich.’”).

0.  Slobogin, “Subpoenas and Privacy,” supra note 1, at 814–16 (explaining the development of administrative subpoenas as a means of allowing regulators to enforce business laws); Stuntz, “O. J. Simpson, Bill Clinton, and the Trans-Substantive Fourth Amendment,” supra note 1, at 859–60 (noting the historical requirement that administrative officials have probable cause to investigate); 18 U.S.C. § 3486 (2012) (authorizing administrative subpoenas; Doe v. United States, 253 F.3d 256, 260–61 (6th Cir. 2001) (financial records, patient records, lists of magazines and journals they read, information about courses they take, and the financial records of their children)); In re Subpoena Duces Tecum 228 F.3d 341, 347 (4th Cir. 2000) (warrant-subpoena comparison).

0.  See Nieland, “National Security Letters and the Amended Patriot Act,” supra note 1, at 1209–12, 1214 (narrating the origins of NSL authority through stages of congressional legislation and highlighting the expanding license granted the FBI at each stage); Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 201, 100 Stat. 1848, 1867 (1986) (“specific and articulable facts”); 18 U.S.C. § 2709(a)–(b) (2012) (setting forth the current requirements for NSLs); Office of the Inspector Gen., U.S. Dep’t of Justice, A Review of the Federal Bureau of Investigation’s Use of National Security Letters (2007), xvi–xvii, https://oig.justice.gov/special/s0703b/final.pdf (reporting the number of NSLs); Office of the Inspector Gen., U.S. Dep’t. of Justice, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records (2010), 2, https://oig.justice.gov/special/s1001r.pdf; Liberty and Security in a Changing World, supra note 19, at 92 (discussing “exigent letters”).

0.  Liberty and Security in a Changing World, supra note 19, at 91, 93; see also Nieland, “National Security Letters and the Amended Patriot Act,” supra note 1, at 1202.

0.  See, e.g., Doe v. Gonzales, 500 F. Supp. 2d 379, 409 (S.D.N.Y. 2007) aff’d in part, rev’d in part, and remanded sub nom. John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), as modified (Mar. 26, 2009) (“[T]he best protection against abuse of the FBI’s discretion in certifying nondisclosure is to ensure that such discretion is checked by meaningful and reasonably expeditious judicial review.”)

0.  See, e.g., Morton Salt Co., 338 U.S. at 652 (“It is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant”); Stuntz, “O. J. Simpson, Bill Clinton, and the Trans-Substantive Fourth Amendment,” supra note 1, at 864 (“blank check”).

0.  In re Search Warrant for [Redacted]@hotmail.com, 74 F. Supp. 3d 1184, 1185 (N.D. Cal. 2014). For laws with such “gag” provisions, see, for example, 18 U.S.C. §§ 2703(d), 2709(c) (2012).

0.  Nieland, “National Security Letters and the Amended Patriot Act,” supra note 1, at 1209 (describing early recognition of the need for legislation); Mulligan, “Reasonable Expectations in Electronic Communications,” supra note 1, at 1561–62 (noting the pre-ECPA asymmetry between the “superwarrant” requirement for wiretaps and the vulnerability of email and other electronic communications); H.R. Rep. No. 99-647, at 26–27 (1986) (“At the state level, some states have placed limits on access to telephone toll records by state and local law enforcement. Colorado, California, Pennsylvania, and New Jersey have all required that a court order be obtained before access to telephone-created transactional information can be granted.”) (citations omitted); 132 Cong. Rec. H4045-46 (daily ed. June 23, 1986) (statement of Rep. Kastenmeier) (citing support from a “coalition of business, Government and civil liberties groups”).

0.  Electronic Communication Privacy Act of 1986, Pub. L. No. 99-508 § 201, 100 Stat. 1848, 1867 (1986) (codified as amended in scattered sections of 18 U.S.C.); Orin S. Kerr, “Internet Surveillance Law After the USA Patriot Act: The Big Brother That Isn’t,” Nw. U. L. Rev. 97 (2003): 611–12, 620, 662; 18 U.S.C. § 2703(d) (requiring “specific and articulable facts” showing the information is potentially “relevant and material” to a criminal investigation).