B. Page ECPA & Modern Comms.pdf


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tracked; or by leaving a copy at the person's residence or usual

Authorizing the Use of a Pen Register and Trap and Trace, 2005

place of abode with an individual of suitable age and discretion

WL 3471754 (S.D.N.Y., 2005); In the Matter of the Application of

who resides at that location and by mailing a copy to the person's

the United States for an Order Authorizing the Installation and

last known address. Upon request of the government, the judge

Use of a Pen Register and Trap and Trace Device and Authorizing

may delay notice as provided in Rule 41(f)(3).”).

Release of Subscriber Information and/or Cell Site Information,

(3) Delayed Notice. Upon the government's request, a magistrate

2006 WL 244270 (W.D.La., 2006.).

judge--or if authorized by Rule 41(b), a judge of a state court of

212

record--may delay any notice required by this rule if the delay is

Fourth-Parties to Launder Data about 'The People' (September

authorized by statute.”).

2009) Colum. Bus. L. Rev., Vol. 2009, No. 3, p. 950.

200

Id. at 1222.

213

201

Id. (because the email is in multiple locations at once, there has

Travel Data is Analytic Superfood! (August 2009) available at

Simmons, Joshua L., Buying You: The Government's Use of

Jeff Jonas Your Movements Speak for Themselves: Space-Time

been no meaningful interference with the property and no notice is

http://jeffjonas.typepad.com/jeff_jonas/2009/08/your-movements-

triggered under FRCP 41).

speak-for-themselves-spacetime-travel-data-is-analytic-

202

Id. at 1224.

superfood.html

203

California v. Greenwood, 486 U.S. 35, 41 (1988).

214

204

United States v. Freitas 800 F.2d 1451, 1455 (9th Cir., 1986)

Surveillance Act of 1978 Statement on Signing S. 1566 Into Law,

John Woolley and Gerhard Peters, Foreign Intelligence

(discussing that Rule 41(h) is not limited to tangible items).

The American Presidency Project (October 1978) available at

205

18 U.S.C. § 2518 (8)(d) (WL Oct. 1998).

http://www.presidency.ucsb.edu/ws/index.php?pid=30048 (“This

206

In Re U.S. for an Order Authorizing Installation and Use of a

is a difficult balance to strike, but the act I am signing today strikes

Pen Register, 415 F.Supp.2d 211, 214 (W.D.N.Y., 2006).

it. It sacrifices neither our security nor our civil liberties. And it

207

18 U.S.C. § 3122(b)(2) (WL 1996).

assures that those who serve this country in intelligence positions

208

47 U.S.C. § 1002(a)(2) (WL1998) (“[e]xpeditiously isolating

will have the affirmation of Congress that their activities are

and enabling the government, pursuant to a court order or other

lawful.”).

lawful authorization, to access call-identifying information that is
reasonably available to the carrier…..except that, with 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 (except to the extent that the location may be
determined from the telephone number.”).
209

18 U.S.C. § 2703(d) (WL 2009).

210

In Re, at 215.

211

See In re Application of the United States of America for an

Order for Disclosure of Telecommunications Records and

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