Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations

usdoj.gov ^

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2. Orders Not to Disclose the Existence of a Warrant, Subpoena, or Court Order

18 U.S.C. § 2705(b) states:

A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703(b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications

service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in--

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

18 U.S.C. § 2705(b).

This language permits agents to apply for a court order directing network service providers not to disclose the existence of compelled process whenever the government itself has no legal duty to notify the customer or subscriber of the process. If the relevant process is a § 2703(d) order or § 2703(a) warrant, agents can simply include appropriate language in the application and proposed order or warrant. If agents instead seek to compel information using a subpoena, they must apply separately for this order.

3. The Cable Act, 47 U.S.C. § 551

The Cable Act restricts government access to cable operator records only when the records relate to ordinary cable services. It does not restrict government access to records relating to Internet access or telephone service provided by a cable operator.

In 1984, Congress passed the Cable Communications Policy Act ("the Cable Act"), 47 U.S.C. § 551, setting forth a restrictive system of rules governing law enforcement access to records possessed by a cable company. Under these rules, even a search warrant was insufficient to gain access to cable company records. The government could obtain "personally identifiable information concerning a cable subscriber" only by overcoming a heavy burden of proof at an in-court adversary proceeding, as specified in 47 U.S.C. § 551(h).

Subsequent to the 1984 passage of the Cable Act, cable companies began to provide Internet access and telephone service. Some cable companies asserted that the stringent disclosure restrictions of the Cable Act governed not only their provision of traditional cable programming services, but also their provision of Internet and telephone services. Congress responded in the 2001 USA PATRIOT Act by amending the Cable Act to specify that its disclosure restrictions apply only to records revealing what ordinary cable television programming a customer purchases, such as particular premium channels or "pay per view" shows. See PATRIOT Act § 211, 115 Stat. 272, 283-84 (2001). In particular, cable operators may disclose subscriber information to the government pursuant to ECPA, Title III, and the Pen Register/Trap and Trace statute, except for "records revealing cable subscriber selection of video programming." 47 U.S.C. § 551(c)(2)(D). Records revealing subscriber selection of video programming remain subject to the restrictions of 47 U.S.C. § 551(h).

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