Vol 7 No 1 - Roger Williams University School of Law

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II. CONSTITUTIONAL ANALYSISA. Constitutional Issues PresentedThe Fourth Amendment to the United States Constitutionprovides that:[T]he right of the people to be secure in their persons,houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated, and nowarrants shall issue, but upon probable cause, supportedby oath or affirmation, and particularly describing theplace to be searched, and the persons or things to beseized.26The traditional judicial interpretation of a FourthAmendment search of persons, houses, papers and effects requiredsome type of physical invasion on the part of the government.27However, the scope and interpretation of Fourth Amendmentapplication was broadened in 1967 when the Supreme Court of theUnited States determined that a search, as defined by theAmendment, could be accomplished via government orchestratedelectronic surveillance.28 Thus, the constitutional implicationscreated by the utilization of the Carnivore surveillance devicemust be analyzed and reviewed in such context. The primaryFourth Amendment concerns raised by Carnivore can be narrowedto two issues.Issue 1 – Warrantless Search of Persons Not Named In CourtOrderBecause the FBI has conceded Carnivore’s inability to isolatea target suspect’s transmissions as they flow through its firstfiltering point,29 is the device able to conduct an unauthorized,warrantless search of communications of persons not subject tothe authorized surveillance?26. U.S. Const. amend. IV (emphasis added).27. See Olmstead v. United States, 277 U.S 438 (1928); see also Clifford S.Fishman, Electronic Tracking Devices and the Fourth Amendment: Knotts, Karo andthe Questions Still Unanswered, 34 Cath. U.L. Rev. 277, 286 (1985).28. See Fishman, supra note 27, at 395.29. See Dempsey, supra note 19, at AO3.
Issue 2 – General Warrant Search of Target SuspectBecause the FBI has stated Carnivore copies and reviews, insome manner, all electronic transmissions attributable to asuspect named in a court order,30 does the device conduct ageneral search of the suspect’s electronic communications notspecified in the order?1. Examination of Fourth Amendment ConcernsThe FBI has established that the Carnivore device readscertain “addressing” and “transactional” information fortransmissions flowing through Carnivore’s first filter point.31Much of this information is not authorized in a valid court orderand has no connection to the approved purpose of the electronicsurveillance.32 The IITRI report seems to confirm that whenCarnivore is used for trap-and-trace surveillance to interceptsimply the “to” and “from” information on an e-mail, the softwaregives investigators more information than may be permitted bythe court order, including the length of e-mail messages.33Carnivore intercepts such material in one of two ways. First,the device may receive the data without examining the actualbody of the transmission.34 Second, the system may view theaddressing information only in conjunction with the body of thecommunication.35As an initial matter, an individual raising a FourthAmendment challenge to a government search must show that theactions of the government infringed upon his legitimateexpectation of privacy.36 If the individual does not establish thisreasonable expectation, no Fourth Amendment search, andtherefore violation, has occurred. The judicially created test fordetermining whether an individual has a reasonable expectationof privacy in an electronic communication is a two-prong30. Id.31. Hearings 2, supra note 22.32. Id.33. Jon Baumgarten, Official Report on Carnivore Supports E-Mail Surveillance,5 Cyberspace Law. 23 (2001).34. Carnivore’s Challenge, supra note 6.35. Id.36. See Skok, supra note 1, at 71.
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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Page 258 and 259: FBI’s Carnivore: Is the Governmen
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