Brinegar v United States 338 US 160 175 1948 82 United States v Forrester 512

Brinegar v united states 338 us 160 175 1948 82

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to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175 (1948). 82 United States v. Forrester, 512 F.3d 500, 511 (9 th Cir. 2007) (holding no reasonable expectation of privacy in the to/from line addresses of e-mails and IP address of websites visited); United States v. Christie, 624 F.3d 558, 574 (3 rd Cir. ) (holding no reasonable expectation of privacy in IP address); United States v. Perrine, 518 F.3d 1196, 1205 (10 th Cir.) (holding no reasonable expectation of privacy in Internet subscriber information given to Internet service provider). 83 United States v. Forrester, 512 F.3d at 511. A pen register is a device that records the numbers dialed from a telephone. 18 U.S.C. §3127(3). 84 Id. at 510. In Smith v. Maryland , the Court held that the use of a pen register—a device that obtains the telephone numbers dialed from a certain phone—was not a search under the Fourth Amendment. 442 U.S. 735, 745-46 (1979). 85 Forrester , 512 F.3d at 510. 86 United States v. Warshak, 631 F.3d 266, 287 (6 th Cir. 2010) (internal quotation marks omitted). 87 United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004). 88 City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010). 89 See Orin Kerr, Applying the Fourth Amendment to the Internet: A General Approach , 62 S TAN . L. R EV . 1005, 1022- 29) (2010) (analogizing the content/non-content distinction developed in the Fourth Amendment letter and telephone cases with Internet communications). 90 Ex parte Jackson, 96 U.S. 727, 733 (1878); Forrester , 512 F.3d at 511 (citing Ex parte Jackson, 96 U.S. at 733).
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Cybersecurity: Selected Legal Issues Congressional Research Service 14 obtain a warrant before examining the contents of a letter or sealed package. 91 The Court protected the inside contents of the letter, but held that the outside, non-content material was not entitled to (in modern parlance) a reasonable expectation of privacy. This same rule was carried over to the telephone context. 92 In Katz v. United States , the Court held that the contents of Katz’s conversation—the actual words spoken—were protected under the Fourth Amendment. 93 A decade later the Court completed the other side of the doctrine in Smith v. Maryland , and held that a person has no expectation of privacy in the non-content, routing information of the telephone call—the numbers dialed. 94 EINSTEIN 2 not only collects the routing, non-content portions of communications, such as e- mail header information, but also scans and collects the content of the communications, such as the body of e-mails. 95 Based on the reasoning of the Internet content cases, individuals most likely have a reasonable expectation of privacy in those electronic communications. 96 The EINSTEIN program requires a Fourth Amendment inquiry into two discrete classes of individuals: (1) federal agency employees who access federal networks while at work; and (2) private persons who either contact a federal agency directly or who communicate via the Internet with a federal employee.
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