E-Commerce Law Week, Issue 368

Search Warrant Based on Web-Group Membership Sets "Dangerous Precedent," Court Warns, But Upholds It Anyway
On August 18, in U.S. v. Coreas, a panel of the U.S. Court of Appeals for the Second Circuit upheld a search warrant of a private home, the basis of which was an FBI affidavit whose central allegations, the court believed, were “knowingly or recklessly false."  Without those allegations, the only basis for the warrant was the defendant's membership in a web group that fostered the dissemination of child pornography.  While expressing its concern that its ruling both violated First Amendment protection against guilt by association and “made a mockery” of the Fourth Amendment, the court held that it was bound by stare decisis to follow an earlier Second Circuit panel decision to uphold a search warrant in a similar case.  In reaching its decision, the court made clear that it felt the earlier decision -- U.S. v. Martin -- had been wrongly decided and set “a dangerous precedent.”  But since the Martin case had been heard first, the court held, it was compelled by the circuit's rules to affirm the defendant’s conviction.  If, as seems likely, this case is reheard en banc , it may provide guidance on when membership alone in a web group that fosters illegal activity is sufficient to justify a search warrant of an individual's home or business.  Moreover, whatever the final outcome of this case, the Coreas panel's scathing opinion of the government's actions could cause law enforcement to seek more evidence from Internet service Providers ("ISPs) about e-group members' activities -- such as by monitoring web traffic and requesting data about users' email preferences -- before seeking warrants to obtain evidence directly from a suspect.

ACLU Challenges Constitutionality Of The "Other" Library Provision
Perhaps it’s time for civil libertarians to reconsider their use of the term “library provision” to describe Section 215 of the USA PATRIOT Act (“Patriot Act”).  After all, this section doesn't even contain the word "library" (it refers to court orders "requiring the production of any tangible things" sought for a counterterrorism or espionage investigation, which of course can include but are not limited to library records).  And it apparently has still never actually been used to obtain any library records.  But thanks to a recent complaint filed by the American Civil Liberties Union (ACLU), we now know that Section 505 has been used to seek library records.  This section amends section 2709 of the Electronic Communications Privacy Act (ECPA), which authorizes the FBI to issue “National Security Letters” (NSLs) requiring electronic communication service providers to disclose subscriber, billing, and transactional information (but not the content of communications).  In its complaint filed under seal before the U.S. District Court for the District of Connecticut on August 9 -- and made public in redacted form on August 25 -- the ACLU challenges the constitutionality of the FBI’s use of a section 2709 NSL to demand  from an unnamed organization records concerning library patrons.  The complaint asserts that section 2709 of ECPA is unconstitutional both on its face and as applied.  It asks the court for a declaration that section 2709 violates the First, Fourth, and Fifth Amendments and for an injunction prohibiting further use of NSLs against either the current unnamed plaintiff or others.

Disclosing Subscriber Info to Law Enforcement Could Violate First Amendment, Court Says
A recent federal court decision in Freedman v. America Online, Inc. , sends a mixed message to ISPs concerned about liability for improper disclosure of subscriber data to law enforcement.  On the one hand, the U.S. District Court for the District of Connecticut held that the disclosure of subscriber information by an ISP in response to an unsigned warrant does not violate the affected customer's Fourth Amendment right to privacy.  On the other hand, the court ruled that state constitutional rights could afford broader privacy protection to subscriber information than the federal Fourth Amendment.  In the absence of state precedent on the issue, however, the court certified the state law question to the Connecticut Supreme Court.  In addition, the court held that the disclosure of subscriber information may have violated the affected subscriber's First Amendment right to anonymous speech.  If the court ultimately finds a violation of the state constitution or the First Amendment of the federal Constitution, it could raise the stakes considerably for ISP's dealings with law enforcement.

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