Background. This is a criminal case in which Dale Bach was prosecuted in federal court for violation of various child pormography statutes. However, the subject of the appeal is the procedure used for obtaining evidence from an ISP, Yahoo.

The mother of a minor reported to the city police in St. Paul, Minnesota that an anonymous person had improper communications with her son in a Yahoo chat room. The city police investigated, and ultimately obtained a warrant issued by the state of Minnesota for the search of Yahoo e-mail records. Yahoo is located in the state of California. The warrant, and its method of service (facsimile) and execution (by Yahoo employees) complied with California law. Yahoo searched its records, and provided responsive records to the police.

District Court. Later, Bach was indicted by a federal grand jury. The evidence against him included material obtained from Yahoo. Bach moved to suppress evidence on the grounds that since a police officer was not present for the execution of the warrant it violated his Fourth Amendment right to be free from unreasonable searches and seizures.

The District Court agreed. It held that 18 U.S.C. § 3105 and sections 626.13 and 626A.06 of the Minnesota Statutes, which require officer presenc, codify the Fourth Amendment. The prosecution appealed.

Appeals Court Holding. The Appeals Court reversed the District Court. It wrote that "The Fourth Amendment does not explicitly require official presence during a warrant's execution, therefore it is not an automatic violation if no officer is present during a search."

The Court continued that the "The Fourth Amendment is governed by a ``reasonableness´´ standard. ... This standard is flexible and should not be read to mandate rigid rules that ignore countervailing law enforcement interests. ... Official presence should simply be one of many factors considered in determining the reasonableness of the execution of a search warrant. ... Other relevant factors are the scope of the warrant, the behavior of the searching agents, the conditions where the search was conducted, and the nature of the evidence being sought." (Citations omitted.)

The Court provided this analysis: "We consider several factors in this case to determine whether the search and seizure of Bach's e-mail from Yahoo!'s server by Yahoo! technicians violated Bach's Fourth Amendment rights, including the fact that no warrant was physically ``served,´´ no persons or premises were searched in the traditional sense, and there was no confrontation between Yahoo! technicians and Bach. ... Other factors crucial to our decision include: (1) the actual physical presence of an officer would not have aided the search (in fact may have hindered it); (2) the technical expertise of Yahoo!'s technicians far outweighs that of the officers; (3) the items ``seized´´ were located on Yahoo!'s property; (4) there was a warrant signed by a judge authorizing the search; and (5) the officers complied with the provisions of the Electronic Communications Privacy Act, 18 U.S.C. § 2701. All of these factors weigh in favor of the government and we therefore find that the search was constitutional under the Fourth Amendment's reasonableness standard."

Expectation of Privacy. The Court ducked the issue of whether there is an expectation of privacy in stored e-mail communications. That is, there can only be a Fourth Amendment search and seizure violation if there is a legitimate expectation of privacy. There is an issue here because the e-mails at issue were not in Bach' possession. Rather, he had entrusted them to a third party -- Yahoo.

The Court wrote that "we first note that in order to find a violation of the Fourth Amendment, there must be a legitimate expectation of privacy in the area searched and the items seized. Smith v. Maryland, 442 U.S. 735, 740 (1979). If there is no legitimate expectation of privacy, then there can be no Fourth Amendment violation. Id. While it is clear to this court that Congress intended to create a statutory expectation of privacy in e-mail files, it is less clear that an analogous expectation of privacy derives from the Constitution. Even though ordinarily we would need to determine whether there is a constitutional expectation of privacy in e-mail files in order to proceed, we decline to decide this issue because even if there is such an expectation, we find on other grounds that this particular search did not violate Bach's Fourth Amendment rights."

Amicus Brief. The Electronic Privacy Information Center (EPIC) had submitted an amicus brief [PDF] in which it argued, unsuccessfully, that "The search warrant at issue in this case was served without a police officer being present, in direct violation of 18 U.S.C. § 3105, which mandates officer presence at the service of a warrant. Formal procedures -- including the requirement of an officer's presence at the service of a search warrant -- have been in place since the1700s to safeguard individuals from unwarranted intrusion upon their privacy by government officials, and to discourage governmental abuse of power by ensuring guarantees of trustworthiness and accountability."

The EPIC also asserted that ISP's subscribers have an expectation of privacy in their e-mail transmitted by their ISPs.

Recent Legislation. The Congress has just amended federal statutes regarding federal procedure for service and execution of search warrants.

The House passed HR 2215, the 21st Century Department of Justice Appropriation Authorization Act, by a vote of 400-4 on September 26. See, Roll Call No. 422. The Senate passed this bill on October 3. The President signed it on November 2. The bill does far more than authorize appropriations for the Department of Justice (DOJ). It is also the vehicle for passage of numerous other tech related items.

Under current law, 18 U.S.C. § 3105 covers persons authorized to serve search warrants. It specifies "an officer authorized by law". Section 11010 of HR 2215 would add a new subsection to 18 U.S.C. § 2703. This section is a part of Title 121, which pertains to "Stored Wire and Electronic Communications and Transactional Records Access". This title was revised last year by the USA PATRIOT Act.

The new subsection 2703(g) provides, in full, that "(g) PRESENCE OF OFFICER NOT REQUIRED. -- Notwithstanding section 3105 of this title, the presence of an officer shall not be required for service or execution of a search warrant issued in accordance with this chapter requiring disclosure by a provider of electronic communications service or remote computing service of the contents of communications or records or other information pertaining to a subscriber to or customer of such service."

Thus, federal law enforcement authorities will be able to serve search warrants on ISPs by fax, without having to travel in person around the country, and then allow the ISP personnel to perform the searches. Likewise, ISPs will be more able to keep law enforcement officers off of their premises.

Similar language had also been in HR 3482, the Cyber Security Enhancement Act, sponsored by Rep. Lamar Smith (R-TX). This bill passed the House last summer. But then, it did not initially move in the Senate. However, Sen. Orrin Hatch (R-UT) was successful in having much of its content inserted into HR 5710, the bill creating a new Department of Homeland Security, earlier this month. But, this section of HR 5710 does not include language regarding officer presence at service and execution of warrants. It did not have to; the provision was already passed in the DOJ authorization bill.

See, for example, HR 3482 as adopted by the House Judiciary Committee on May 8, 2002. It stated that "Section 3105 of title 18, United States Code, is amended by adding at the end the following: ``The presence of an officer is not required for service or execution of a warrant under section 2703 when the provider of electronic communications service or remote computing service produces the information required in the warrant.´´"

The report is wide ranging, and contains numerous findings and recommendations. One of its key recommendations is that "spectrum policy must evolve towards more flexible and market oriented regulatory models." However, it recommends moving towards a market system, rather than transforming into a market system. Nevertheless, this report evidences a quantum leap away from the way the FCC viewed spectrum management just a few years ago.

Much of the report focuses on the implications of new technologies. It finds that "Advances in technology create the potential for systems to use spectrum more intensively and to be much more tolerant of interference than in the past." Moreover, "In many bands, spectrum access is a more significant problem than physical scarcity of spectrum, in large part due to legacy command and control regulation that limits the ability of potential spectrum users to obtain such access."

The report labels the FCC's historic control and planning of spectrum use as the "command and control" model. The report advocates continuing this model for some spectrum uses, such as broadcasting and public safety, but also recommends using two other models. It states that the FCC should also allow "the granting of exclusive spectrum usage rights through market based mechanisms" and "spectrum commons".

The "commons" model would allow "unlimited numbers of unlicensed users to share frequencies, with usage rights that are governed by technical standards or etiquettes but with no right to protection from interference." This is the WiFi model.

The report recommends expanding the use of both the exclusive use model and the commons model.

The report deals with interference at length. It recommends "a more quantitative approach to interference management based on the concept of ``interference temperature.´´ The interference temperature metric would establish maximum permissible levels of interference, thus characterizing the ``worst case´´ environment in which a receiver would be expected to operate."

The report also recommends that the FCC "should consider applying receiver performance requirements for some bands and services, either through incentives, regulatory mandates, or some combination of incentives and mandates."

The report also finds that spectrum is under utilized. "Preliminary data and general observations indicate that many portions of the radio spectrum are not in use for significant periods of time, and that spectrum use of these ``white spaces´´ (both temporal and geographic) can be increased significantly."

While the report makes numerous recommendations regarding reducing regulatory constraints, allowing more flexibility of use, and increasing regulatory certainty, it does not advocate a system of property ownership in spectrum. Entities that use spectrum would still be licensees, not owners, and still be subject to FCC regulation, except in the case of unlicensed users, who would not be owners either.

Indeed, the words "property", "owner", and "ownership" are barely used in the report, and usually only in the context of making clear that the report is not recommending a system of property ownership. Also, while the word "rights" is used frequently throughout the report, it is usually coupled with words that dilute its meaning. For example, the report refers to "spectrum users' rights and obligations", "spectrum rights and obligations", "Spectrum Rights and Responsibilities", and "flexible rights ... and clarity in the rules".

The report articulates several paragraphs on the meaning of spectrum rights. It states that "all spectrum users require clear rules governing their interactions with the Commission and other spectrum users. Regardless of how or to whom particular rights are assigned, ensuring that all rights are clearly delineated is important to avoiding disputes, and provides a clear common framework from which spectrum users can negotiate alternative arrangements."

The report further states that "the Commission must clearly define the following basic spectrum rights parameters for all licensed and unlicensed spectrum uses: 1. Designated frequency range and bandwidth; 2. Geographic scope of right to operate; 3. Maximum RF output, both in-band and out-of-band; and 4. Interference protection, i.e. the maximum level of noise/interference that the spectrum user must accept from other RF sources."

It adds that "the rules should be written to define spectrum rights in terms of spectrum uses that are excluded, prohibited, or limited. Thus, the Commission’s approach should be that licensees and unlicensed users are allowed to do anything not explicitly prohibited by the Communications Act, the Commission's rules, Commission orders, licenses or authorizations, rather than the presumption being that anything not affirmatively authorized requires a rule change or waiver before it can be done."

It proposes that FCC organize "a series of large-scale, two-sided spectrum auctions in which all spectrum incumbents can voluntarily offer the spectrum they now control, along with spectrum held by the FCC."

The paper has nothing kind to say about the current system of government control of spectrum. It states that "The current administrative allocation of spectrum has led to shortages and waste." It adds that "A consensus is forming that the current process of allocating radio spectrum by administrative decision making is in serious need of reform. ... Billions of dollars of cumulative loss to the U.S. economy have been attributed to inefficient spectrum allocations under the current system. The solution, according to most economists, is to replace the current administrative allocation with a spectrum market." (Footnote omitted.)

The report even compares the current situation to the failed communist systems of the former Soviet Union and eastern Europe. It states that "Reforming spectrum policy is like reforming planned economies. The form of the transition from central planning to markets matters, as we have seen in Eastern Europe and Russia. Markets do not create themselves. The central planners can't just not show up for work one day and expect an efficient transition to markets to occur spontaneously."

But then, this paper was written by economists, not lawyers.

This paper proposes "a means to speed the transition from the current restricted spectrum allocation to an efficient market allocation."

The report summarized its proposal as follows: "A key aspect of the proposal is the use of a two-sided auction in which the FCC would offer unassigned spectrum in a band (sometimes referred to as ``overlay licenses´´ or ``white space´´) simultaneously with encumbered spectrum offered by existing licensees. The simultaneous auction of encumbered and unencumbered spectrum in a band would allow bidders to acquire highly complementary spectrum assets quickly in a single event rather than through the current sequential process consisting of an FCC auction followed by post-auction negotiations with incumbents. Ideally, all technically fungible spectrum, e.g., everything from 300 to 3000 MHz, would be included in a single auction. This ideal scenario would also include spectrum now reserved for government use6 and bands that might be used for the relocation of incumbents. However, practical considerations that we will discuss below constrain us to propose something more limited as an initial implementation. The nature of current use also suggests that certain bands will be more suitable for this approach than others. Taking these factors into account we propose an initial implementation that we believe is practical yet large enough to provide significant benefits. If implemented, it could make available in as little as two to five years 438 MHz of very desirable spectrum for such potentially high value uses as next generation mobile services. Assuming satisfactory results from the initial application of this approach, we propose that it be extended more broadly across a wide range of spectrum to bring about a permanent, systemic solution to the spectrum allocation problem." (Footnotes omitted.)

The report adds that "For our proposal to work, incumbents must participate in the auction. To encourage such participation, we propose that incumbents be allowed to keep all proceeds from the sale of encumbered spectrum. To further encourage participation, we propose that the spectrum encumbered by an incumbent who does not participate in the auction be frozen in its current allocation for five years. Participation would thus become a quid pro quo for incumbents' receiving flexibility of use, and what could be a substantial windfall from transfer of their spectrum to a higher valued use. We propose to further protect incumbents by allowing them to bid on their own licenses in the auction. This would ensure an incumbent's spectrum is not sold for less than its value to the incumbent. Since the cost to participate in the auction should be small relative to potential gains from flexibility of use, a high level of participation is likely."

The FCC's Spectrum Policy Task Force (SPTF) report (see accompanying story), which was released on the same day, offers the following legislative recommendation: "Consider amending Section 309(j) of the Communications Act to provide the Commission authority to conduct two-sided auctions and simultaneous spectrum exchanges."

The proposal contained in this report goes further than the proposals contained in the SPTF report in creating a spectrum market. It states that "removing barriers to flexible use isn't enough to achieve a rapid transition to the market allocation of spectrum for several reasons. It doesn't make spectrum held by FCC (and NTIA) available for flexible use. It doesn't reconfigure existing spectrum rights into tradable, flexible rights. It doesn't solve the coordination problem of ensuring that all interdependent spectrum is up for sale at the same time. And, it doesn't solve the incentive problems that may prevent efficiency enhancing trades." It adds that "all restrictions unrelated to interference would be removed."

Both authors, Kwerel and Williams, are also members of the FCC's SPTF. Evan Kwerel is a Senior Economist in the FCC's OPP. He can be reached at 202 418-2045 or ekwerel@fcc.gov. John Williams can be reached at 202 418-2050 or jwilliam@fcc.gov. See also, FCC release [PDF].

This case involves the Foreign Intelligence Surveillance Act (FISA) and the specialized courts that it created, the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCOR). The case is the first ever for the FISCOR.

The FISA is codified at 50 U.S.C. §§ 1801-1862. It sets out rules for the collection of information categorized as foreign intelligence surveillance. It is a regime distinct from the "Title III" regime for the issuance of warrants in criminal proceedings.

The FISA was enacted in 1978, and has been amended several times since, most recently by the USA PATRIOT Act passed in late 2001.

Pursuant to the FISA, the government applied to the FISC for a surveillance order for a United States person who the government contends is aiding, abetting, or conspiring with others in international terrorism. The FISC granted the order on May 17, but also imposed restrictions upon the government, which are the subject of the present appeal. See, Memorandum Opinion of May 17 of the FISC.

The FISC wrote in May that "law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances. Additionally, the FBI and the Criminal Division [of the Department of Justice] shall ensure that law enforcement officials do not direct or control the use of the FISA procedures to enhance criminal prosecution, and that advice intended to preserve the option of a criminal prosecution does not inadvertently result in the Criminal Division’s directing or controlling the investigation using FISA searches and surveillances toward law enforcement objectives."

The FISCOR's opinion of November 18 further characterizes the FISC's May ruling: "To ensure the Justice Department followed these strictures the court also fashioned what the government refers to as a ``chaperone requirement´´; that a unit of the Justice Department, the Office of Intelligence Policy and Review (OIPR) (composed of 31 lawyers and 25 support staff), ``be invited´´ to all meetings between the FBI and the Criminal Division involving consultations for the purpose of coordinating efforts ``to investigate or protect against foreign attack or other grave hostile acts, sabotage, international terrorism, or clandestine intelligence activities by foreign powers or their agents.´´ If representatives of OIPR are unable to attend such meetings, ``OIPR shall be apprized of the substance of the meetings forthwith in writing so that the Court may be notified at the earliest opportunity.´´"

The FISCOR wrote that the FISC "apparently believes it can approve applications for electronic surveillance only if the government’s objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity. But the court neither refers to any FISA language supporting that view, nor does it reference the Patriot Act amendments, which the government contends specifically altered FISA to make clear that an application could be obtained even if criminal prosecution is the primary counter mechanism."

The FISCOR reversed the FISC's orders to the extent that they imposed conditions upon the government, and remanded the matter to the FISC.

Attorney General John Ashcroft gave a speech in which he praised the FISCOR opinion. He stated that "the court issued an opinion that affirmed President Bush's and Congress's call for greater cooperation and coordination in the war on terror. In intelligence, in counter intelligence, and counter terrorism investigations, the court's ruling confirmed the Department of Justice's legal authority to integrate fully the functions of law enforcement and intelligence."

He added that it "revolutionizes our ability to investigate terrorists and prosecute terrorist acts. The decision allows the Department of Justice to free immediately our agents and prosecutors in the field to work together more closely and cooperatively in achieving our core mission, the mission of preventing terrorist attacks."

Sen. Charles Grassley (R-IA), a senior member of the Senate Judiciary Committee, stated in a release that "This ruling should untie the government's hands and help prevent terrorist attacks. The outdated rules on information sharing hurt our counter terrorism efforts, and now we can move forward to protect national security while respecting rights and abiding by built-in safeguards. Congress should continue close oversight of the FISA process and the Patriot Act."

This was not an adversarial proceeding. The target of the surveillance was not a party to the proceeding. Moreover, since the government, which is the only party, prevailed before the FISCOR, the prospects for an appeal to the Supreme Court are slim.

The FISCOR did, however, receive and reference two amicus curiae briefs that urged affirmance of the FISC. See, amicus brief [PDF] of the Electronic Privacy Information Center (EPIC) and other groups, and amicus brief [PDF] of National Association of Criminal Defense Lawyers (NACDL).

The FISC is comprised of seven District Court judges appointed by the Chief Justice of the United States. The FISCOR was comprised of three Appeals Court judges on senior status, Ralph Guy (6thCir), Laurence Silberman (DCCir), and Edward Leavy (9thCir).

9:30 AM - 12:00 PM. The Department of State's (DOS) Office of the Coordinator for International Communications and Information Policy will host a public meeting to receive comments regarding the role of International Mobile Satellite Organization (IMSO) with respect to the Global Maritime Distress and Safety System (GMDSS), aeronautical safety services, and service to rural and remote areas of developing countries, including the principle and the legal methodology of a possible extension or expansion of IMSO's mandate. See, notice in the Federal Register . For more information, contact Brian Hunt at 202 647-5832 or huntbj@state.gov. Location: DOS, 2201 C Street NW.

12:15 PM. The FCBA's Common Carrier Committee will host a brown bag lunch. The speakers will be the FCC Commissioners' wireline competition advisors. Location: Willkie Farr & Gallagher, 1875 K Street, 2nd Floor, NY Conference Room.

12:30 PM. Pam Olson, Assistant Secretary of the Treasury for Tax Policy, will deliver a luncheon speech to the National Foreign Trade Council. Location: St. Regis Hotel, 923 16th Street, NW.

5:30 - 6:45 PM. Richard Posner, Judge of the U.S. Court of Appeals (7thCir), will give a lecture titled "The Political Economy of Intellectual Property Law" at an AEI-Brookings Joint Center event. A wine and cheese reception will follow at 6:45 PM. See, online registration page. Location: AEI, Wohlstetter Conference Center, 12th Floor, 1150 17th Street, NW.

6:00 - 8:00 PM. The FCBA will host a CLE seminar titled "The FCC’s Triennial Review of Unbundled Network Elements: How Significant are UNE-P and other UNEs to Local Competition?" Registrations and cancellations due by 5:00 PM on November 15. Location: Dow Lohnes & Albertson, Suite 800, 1200 New Hampshire Avenue, NW.

Deadline to submit reply comments to the FCC regarding its request to refresh its record regarding customer proprietary network information (CPNI) implications when a carrier goes out of business, sells all or part of its customer base, or seeks bankruptcy protection. This is the FCC's Third Further Notice of Proposed Rulemaking in CC Docket Nos. 96-115, 96-149 and 00-257. See, notice in the Federal Register.

Deadline to submit applications for planning and construction grants to the NTIA for public television facilities under the Public Telecommunications Facilities Program (PTFP). See, notice in the Federal Register.

10:00 AM - 12:00 NOON. The House Science Committee will meet to mark up several bills that are not related to information technology. It will then proceed with a hearing titled "The 2001 Presidential Awardees for Excellence in Mathematics and Science Teaching: Views from the Blackboard". Webcast. Location: Room 2318, Rayburn Building.

12:00 NOON. The FCBA's Transactional Practice Committee will host a brown bag lunch on the Sarbannes Oxley Act. RSVP to Donna Farber at donna.farber@lw.com. Location: Latham & Watkins, Lincoln Square Bldg., Suite 1000, 555 Eleventh St., NW.

12:30 PM. The FCBA will host a luncheon. The speaker will be NFL Commissioner Paul Tagliabue. The price is $45 for members, $35 for government & law student members, and $55 for non-members. Registrations and cancellations are due by 5:00 PM on November 15. For more information, call 202 293-4000. Location: JW Marriott Hotel, 1331 Pennsylvania Avenue, NW.

12:15 PM. The FCBA's Global Telecommunications Development Committee and International Practice Committee will host a brown bag lunch. The topic will be "Financing Telecom Projects in Developing Countries: The Role of OPIC, Export Import Bank, and the International Finance Corporation (IFC)". The speakers will be Roger Cohen (Export Import Bank), Brian Christaldi (OPIC), and Jean-Francois Dupuy (IFC). For more information, contact Janet Hernandez at 202 736-1814. RSVP to Julie Ilett at jilett@coudert.com or 202 736-1819. Location: Coudert Brothers, 1627 Eye St., NW, 11th floor.

CANCELLED. 12:15 PM. The FCBA's Cable Practice Committee will host a brown bag lunch. The speakers will be John Wong and Michael Lance (Division Chief and Deputy Division Chief of the FCC Media Bureau's Engineering Division). For more information call Lisa Cordell at 202 939-7934. RSVP to Wendy Parish at wendy @fcba.org. Location: NCTA, 1724 Massachusetts Ave., NW.

3:00 PM. Uma Suthersanen will speak on "Copyright and Human Rights in Europe". She is a Senior Research Fellow at the Queen Mary Intellectual Property Research Institute in London. For more information, contact Robert Brauneis at rbraun@main.nlc.gwu.edu or 202 994-6138. Location: Faculty Conference Center, 5th Floor of Burns, George Washington University Law School, 2000 H Street, NW.

6:30 - 10:00 PM. The FCBA will host a charity auction. For more information, contact Heidi Kurtz (FCBA) at 202 293-4000. Admission is free, and it is open to the public. The event features a live auction, silent auctions, raffles, hours d’oeuvres and a cash bar. Location: Capitol Hilton Hotel, 16th and K Streets, NW.

Deadline to submit comments to the The FCC in response to its requests for comments regarding whether to revise, clarify or adopt any additional rules in order to more effectively carry out Congress's directives in the Telephone Consumer Protection Act of 1991 (TCPA). See, notice in the Federal Register, October 8, 2002, Vol. 67, No. 195, at Pages 62667 - 62681.

Deadline to submit a request to participate in roundtable meetings hosted by the U.S. Patent and Trademark Office (USPTO) regarding small business views on foreign patent challenges. The USPTO is seeking comments, and holding roundtable meetings, pursuant to a recommendation contained in a General Accounting Office (GAO) report [PDF] titled "Federal Action Needed to Help Small Businesses Address Foreign Patent Challenges". This report was released on August 22, 2002. See also, story titled "GAO Reports Foreign Patent Challenges Facing Small Businesses" in TLJ Daily E-Mail Alert No. 497, August 23, 2002. See, notice in the Federal Register, October 28, 2002, Vol. 67, No.208, at Pages 65786 - 65787.

11/18. The U.S. Court of Appeals (7thCir) issued its opinion [PDF] in AM General Corporation v. Daimler Chrysler, a trademark infringement and dilution case involving the front grilles on SUVs.

11/15. Bruce Mehlman, Assistant Secretary for Technology Policy at the Department of Commerce, gave a speech titled "Technology Led Economic Development in the Post Bubble, Post 9/11, Post Enron America". He spoke in Baton Rouge, Louisiana.