Return to Cyberlaw Home Page and Contents
Return to Nicholas Johnson Home Page
III. Global Telecommunications Firms Already in Hong Kong
IV. The U.S. Commerce Department: Services Valuable to GTME as a Global Firm
B. Bureau of Export Administration (BXA)
C. International Trade Administration (ITA)
D. National Telecommunications and Information Administration (NTIA)
V. 3D-Mail is a Potential Billion-Dollar Bonanza
A. Potential Market for the 3D-Mail Package
B. The Specifics of 3D-Mail Technology
VI. Searches and Seizures Under the U.S. Constitution's Fourth Amendment
A. The First Inquiry: Is There a Search?
B. Application of the Federal Wiretap Act
C. Analogy Between Electronic Mail and a Telephone Call
D. Analogy Between Electronic Mail and Postal Packages
F. The Second Inquiry: The Reasonableness Standard of Searches and Seizures
VII. Rights of Hong Kong Citizens Against Search and Seizure
GTME seeks opportunities in emerging Asian markets. The economy of Hong Kong offers these enticing ingredients for an information technology boom:
The strength of the Hong Kong economy makes it an attractive market for investment, but there is uncertainty about the country's political future. In July 1997, Hong Kong ceased being a British territory and became a Chinese "Special Administrative Region." The Chinese government states a policy of "one country, two systems" and claims it intends to allow capitalism to continue unfettered. But, there are no guarantees. A specific GTME concern is whether the development of information technology, media and related services will be subject to greater regulation by Beijing than by the previous government.
This paper proposes that GTME develop an integrated e-mail software package called "3D-Mail." The service should have the potential to revolutionize business communication in the short run and personal communication over the long term. The 3D-Mail package would allow users to send electronic mail messages using text, audio and short video clips. All three media would be included in the same message, hence three "dimensions" of communication.
A number of legal and policy questions are raised by the 3D-Mail package. Privacy is likely to emerge as a key issue as electronic mail use increases. Protecting e-mail from government search and seizure of information may become an important concern for Hong Kong residents. Broad protections against search and seizure exist under a Basic Law guaranteeing civil liberties. However, there are unanswered questions about the durability of the Basic Law in post-handover Hong Kong.
In the United States, electronic mail communications have been seized by government officials while in storage at a central computer site. There are circumstances in which courts have ruled such an intrusion does not constitute a search or seizure under the Fourth Amendment of the U.S. Constitution. There is no reason to believe Chinese Law would offer Hong Kong residents more protection. Of course, Fourth Amendment electronic mail jurisprudence is still evolving. Fourth Amendment electronic mail jurisprudence is still evolving, though. As discussed, infra, in some cases the fact of search or seizure turns on the specifics of the technology involved.
Following is an outline of the Hong Kong/3D-Mail opportunity and an analysis of privacy concerns associated with it. Included are various recommendations about how GTME should proceed.
Hong Kong is a compact, urbanized combination of mainland and islands on the South China Sea, occupying 990 square kilometers, bordering the People's Republic of China. The United Kingdom retained nominal control over government, with Queen Elizabeth II as head of state, until June 30, 1997. A three-branch democratically elected government handled the vast majority of policy decisions in the British system. The capital city is Victoria. Its population in 1995 was 5,542,869. 1
Hong Kong is one of the world's top ten Big Emerging Markets, according to U.S. Commerce Department projections of economic activity over the next decade.2 The "Better Hong Kong Foundation," a public/private chamber of commerce on the web, boasts that Hong Kong is one of the world's "least regulated cities."3 Few tariffs hamper the export of manufactured goods, which make up the largest portion of the Hong Kong economy. More than 700 global businesses maintain regional offices in Hong Kong.
The basic unit of currency is the Hong Kong Dollar, which in 1995 traded at 7.8 HK$ per U.S. dollar.4 The Gross Domestic Product for 1995 was 136.1 billion U.S. dollars.5 Hong Kong is the world's eighth-largest merchandise-trading economy, and tenth-largest service economy. 6
Other indicators relevant to the GTME project include: electricity used, 33 billion kilowatt hours per year; number of television sets: 1.312 million (4.22 people per set); number of telephones: 3 million (1.84 people per phone); literacy rate - those age 15 and over who have attended school: 77 percent; infant mortality rate, 5.8 deaths for every 1000 live births.7
The robust Hong Kong economy is driven by a number of market sectors. Hong Kong is a leading financial center. More than 85 of the world's top 100 banks are there. The World Bank and International Monetary Fund will hold their 1998 global conference in Hong Kong.8 The financial industry is closely supervised by the Hong Kong Monetary Authority.9
Hong Kong is the world's fourth largest bullion market. Hong Kong gold is the centerpiece of the market. The gold trade appeals to U.S. and European investors because the time differential between the Atlantic and Hong Kong offers them the opportunity for 24-hour-a-day transactions. The Hong Kong stock market is second only to Tokyo's in shares traded among Asian stock markets. Even Chinese state-owned businesses are beginning to list with the Hong Kong market. At least 15 state-owned firms have been publicly traded since 1993. The Hong Kong futures market is a recent development, offering investors opportunities in interest rate, stock and gold futures. 10
More than 60 percent of the products flowing through Hong Kong have destinations in China.11 The Port of Hong Kong has long been an important link with mainland China. It is now the busiest container port in the world.
The telecommunications infrastructure includes communications satellites and "optical-fibre" cables connecting Hong Kong to other countries in the region.12 Two companies have launched three telecommunications satellites since 1992. Another satellite is planned for 1997. The telecommunications sector is among the economy's largest. This is reflected in the frequency with which residents make use of communications technology. There is one telephone in use for every 1.88 residents of Hong Kong, among the highest densities in the world.13 However, the market is regulated through licensing by the Office of Telecommunications Authority, and only four companies share the rights to local, long distance, data and fax service.14 Four companies operate seven systems for mobile telephones, serving more than 663,000 customers. 15
The government has been an aggressive -- and successful -- promoter of economic development. Growth of GDP averaged more than 5 percent annually for the last decade, topped by a 8 percent growth rate in 1987-88.16 Unemployment is below 2 percent. The Hong Kong Industrial Technology Centre Corporation is a government-sponsored incubator for high-tech industries, aimed at global companies seeking opportunities in Hong Kong.17 Its areas of focus are multimedia and networking, telecommunications, software and systems, and microelectronics and components. Through this effort, production of manufacturing technology has increased threefold in ten years.
The future of the Hong Kong economy is uncertain. The economic and political systems underwent a massive change in July 1997 when the People's Republic of China took control of Hong Kong from the United Kingdom.18 Although speculation abounds, no one -- perhaps not even those in Beijing's inner circles -- can know what the handover will mean for the Hong Kong economy over the next five to twenty years. The takeover could mean a tightening of economic controls by the Chinese government. However, China has signed an agreement with Britain to "respect" the culture and commerce of Hong Kong for 50 years following reversion to Chinese control. 19
The Hong Kong legal system under British rule was based on English common law. An unwritten constitution was replaced by the Basic Law enacted in 1990 in preparation for 1997. The Basic Law expands civil liberties and is intended as a guarantee of previously existing freedoms. 20 The fate of the Basic Law also is uncertain as the changeover approaches. The Chinese have indicated an intention to eliminate important protections of personal freedoms including the Hong Kong Bill of Rights and the Societies and Public Order Ordinances.21
A variety of Asia-based companies are operating in Hong Kong's telecommunications industry. The companies are involved in ventures ranging from cellular telephone to Internet services. An example is HK Super Net, an Internet service provider which makes news, business information, chat rooms and shareware available for subscribers.22 The effort is a joint project of several regional telecom companies. Another example is a consortium of seven cellular service providers authorized by the Hong Kong government to operate wireless systems.
Some of the world's largest companies already operate in Hong Kong. Apple Asia maintains a presence. AT&T Hong Kong is a subsidiary of the parent company. Motorola HK Ltd. wants a piece of the high-band cellular market if the government approves it, in a decision not expected before the changeover to Chinese control.23
An example of the pervasiveness of global companies is PC World Hong Kong magazine, published in Hong Kong in Chinese and English. Stories and advertising deal with products and services from companies around the world with, of course, an emphasis on the Hong Kong market. 24
Other companies operating in Hong Kong include: Olivetti Personal Computers, Hayes Modems, Microsoft, Epson, Sun Microsystems, Sybase, Inc., Three Principles Computer Systems, Inc., Famous Technology Company, Ltd., Nelson Electronics, Ltd., Voice Dynamics, Worldneed Computer Consultants, Ltd., Gemlight Computer Ltd. and Silicon Electronics Co. Ltd.25 All of these companies are involved in various sectors of computer sales, network construction for business, software sales and production, and some hardware production, as well as the Internet service business.
One of the important resources available to GTME as the company develops in Asia is the U.S. Commerce Department. It maintains five divisions or administrations involved in market research and direct assistance to firms seeking to introduce new technologies, including new computer software, into foreign markets.26 The Commerce Department has become a one-stop shop for global companies seeking new markets. Each of the relevant Commerce services is accessible via the World Wide Web.
The Technology Administration (TA) is an umbrella agency for all of the federal government's efforts to assist the development of innovative technologies. The agency provides research grants to companies developing new products and services.27 An additional component of the agency's mission is the development of technology policy by other nations. Within the Technology Administration, the office most directly involved in policy development is the Office of Technology Policy (OTP). The purpose of the OTP is to develop international science and technology agreements and policies that promote United States competitiveness worldwide. 28
This is an area in which Commerce Department activities may be directly relevant to GTME efforts to enter the Hong Kong market. As the United States and China negotiate trade agreements in coming years, GTME should actively voice its desire that any agreement on new communications technology include 3D-Mail and other electronic mail systems as a priority. GTME should begin working with the OTP immediately in order to secure protective agreements for GTME products in anticipation of the possibility that Hong Kong markets may be less welcoming to U.S.-based companies in the future.
The Bureau of Export Administration (BXA) develops U.S. export control policies, issues export licenses and prosecutes violators of trade agreements. Dealing with this department is a must, rather than an option, for most U.S.-based exporting companies. Of special importance with regard to the 3D-Mail software package is the BXA project on encryption control. The project's goal is a worldwide management infrastructure for encryption keys.29
The result of a successful encryption agreement would be that governments would share information about the encoding of communications including e-mail and 3D-Mail. Law enforcement would, in theory, have access to all transmissions, regardless of their origin and destination. Software-producing companies would be required to turn over the keys to encryption technology as a prerequisite to becoming licensed. Licensing already takes place in one segment of the United States software market. Under current BXA policy, companies are being licensed to develop higher quality (56-bit key length) encryption technology, on the condition that encryption keys be provided to BXA.30
The Commerce Department in fact maintains a special envoy for cryptography, whose function is the creation of international agreements on specific encryption regulations. The United States maintains that an international agreement is needed because governments must have the capacity to pierce encryption technology wherever it is used, when it is used by pornographers, drug cartels, spies and terrorists to avoid detection by law enforcement.31 GTME faces a policy decision about the use of encryption in our 3D-Mail software. For the time being, GTME should develop the higher level (56-bit key length) technology and move forward with production of the 3D-Mail software, but do so in careful compliance with BXA regulations.32
The mission of the International Trade Administration (ITA) is to assist trade and advocate on behalf of United States exporters by implementing a national export strategy focusing on identified emerging markets.33 The ITA also provides information to exporters about potential markets. Specifically, the administration maintains data on emerging markets which is available to potential exporters such as GTME. ITA officials use economic trends to identify "Big Emerging Markets," (or "BEMs") worldwide.34 The ITA then gathers economic and cultural data on each market, and makes the information available on-line. Included in ITA tracking of markets are: key economic indicators; emerging sectors of the economy ("information technology" is among the listed categories); market access and comparison information; a listing of relevant government regulations and key contact officials for each country.
Within the ITA, the Trade Information Center provides a single contact point for U.S. businesses seeking information about markets around the globe. GTME should access the Asia Business Information Center (ABIC), which is an information center designed to respond to questions about Asian markets.35 Included in the on-line presentation of the ABIC is the Asian Technology Connection World Wide Web page. This page serves as a potential contact point for ITA information on the business climate in Asia.36
A cursory investigation into the content of the World Wide Web site shows that Hong Kong is grouped with China and Taiwan into a Chinese trade region which, according to ITA estimates, has the greatest potential for growth in the next 10-15 years among all Asian markets.37 While the bulk of consumers in the market reside in China, Hong Kong has been a critical entry point for trade with the rest of China. More than 40 percent of goods flowing through the Port of Hong Kong are destined for China.38 Thus, Hong Kong likely will be a critical part of the Chinese Big Emerging Market in coming decades.
The ITA also operates an overseas U.S. presence which could become important to GTME's efforts to develop 3D-Mail. The Commercial Service is a sort of foreign service for trade, or an "economic embassy." U.S. Export Service Centers are operated in 134 countries. The overall purpose of the service is to help U.S. companies compete for overseas contracts. To the extent Hong Kong continues to incubate infotech companies, GTME may need to compete for contacts as an electronic mail software developer. A close relationship with Commercial Service officials would be helpful in this effort.
NTIA is an office which claims a much broader mandate than assisting U.S. businesses overseas, but it is involved in the information technology industry chiefly through the Institute for Telecom Sciences. The ITS maintains a World Wide Web page which makes available a variety of information about developments in the information technology industry as well as a catalog of links to other technology sites on the World Wide Web.39 The ITS page features information on domestic and international information policy, as well as technical background on a variety of subjects including digital television.
The patent office, in addition to dealing with intellectual property law, makes available on-line a significant volume of information aimed at information technology companies. GTME is likely to want a U.S. patent on our software, so contact with the patent office may be in the future of this project. However, the office also provides legal materials related to intellectual property law in the United States and other countries. The materials include reports on a 1996 international conference on the topic of "patent office operation in an electronic age," along with the full text of the International Patent Cooperation Treaty, which, if successful, could become important to the future of GTME projects in Hong Kong. (The issue of China's role in international patent issues is an important one. However, it is complex, especially with regard to Hong Kong. The issue is not addressed here. )40
GTME should develop a mutimedia electronic mail system software, which has been designated herein as "3D-Mail." The software package would incorporate text, graphics, real-time audio and short video clips incorporated into a user's electronic mail message. The package would operate in three media simultaneously, allowing users to create their own "three dimensional" or "3D" messages.
Because the software package would require a relatively large amount of the user's computer memory in order to generate and store a each message, 3D-Mail must make use of the best compression technology now available. GTME should begin working on the development of better data compression because even with the maximum compression now available, the video segment of the package is likely to make sending and receiving a time-consuming process.
Much of the technology needed to make the 3D-Mail package workable already exists. The Netscape company, which primarily markets its web browser software, is now marketing an electronic mail package that includes the capability to send color still photos which can be taken by a relatively inexpensive digital desktop camera.41 GTME should attempt to move ahead of Netscape in the market by providing a desktop hand-held full-motion video camera for use with the 3D-Mail software package. The GTME software must remain compatible with the less advanced still photography method but should make use of the higher level feature also.
At the outset the GTME marketing strategy should focus on the business community in Hong Kong. While insufficient market research exists at this time to produce a reliable target retail price range for the product, it seems likely that in the short run, purchase of the entire package will be cost-prohibitive for many consumers. However, the multi-billion-dollar domestic business economy provides no shortage of potential customers.
The prototypical use for the 3D-Mail system is the business project proposal or demonstration. Imagine this scenario: A Hong Kong company is in the business of providing graphic design services. It produces everything from annual reports to logos and T-shirt designs. When a company designer contacts a client regarding a proposed design, the designer uses 3D-Mail to videotape the product at the office and then includes the videotape in an e-mail to the client. The client is able not only to see a description of the graphic design on the left side of the computer screen, but is able to view the end result on the right side of the screen. All the while the graphic designer is providing an audio narration of the presentation, outlining the thinking behind the design. the concept is similar to that of a video conference with two exceptions: 3D-Mail includes a textual element; and 3D-Mail is a one-way technology rather than an interactive exchange between the parties.
The 3D-Mail technology is not merely useful in a business context. Imagine human rights activists filming government mistreatment of dissidents and making that video available in moments to audiences not only in Hong Kong but in Europe and the United States. Potentially the personal uses of 3D-Mail could outstrip the business uses, to the extent that sharing video with one another becomes another accepted part of societal interaction. Three-D Mail is a middle step toward the eventual unification of a number of disparate technologies. Television, videocassette players and the Internet could be joined to produce a completely new medium.
The 3D-Mail technology, like traditional electronic mail, links personal computers in a communications network using telephone lines and modems. Traditional e-mail is sent from one terminal to another, through links in a much broader worldwide network of computers. Large central computers, or "servers," provide switching stations for messages bouncing around the globe.42
Messages are wholly self contained. No link is maintained from the sending computer to the receiving one.43 The message is a digitized signal. It contains codes indicating the beginning and end of the message. E-mail has been described as a cross between a telephone call and a postcard. 44 Both 3D-Mail and e-mail utilize existing telephone transmission methods. These include local telephone lines, fiber-optics and wireless (cellular) transmissions. A distinction between existing e-mail software and the 3D-Mail proposal is that the new technology will take up much more storage space on a server due to the amount of data involved in the transmission of video clips. This raises issues concerning the storage of message data. Servers and personal computers may not have the memory capacity to retain the same number of 3D-Mail messages as they now retain of the less memory-heavy traditional e-mail messages.
Despite the nature of 3D-Mail as a purely digital communication, it would not consist of one unified signal, in contrast to other forms of communication including the telephone. There is variance in computer systems and their operation, but any e-mail system uses a number of component parts to transmit the message. These can include: 1) a "header" which provides the origin, path and destination of the message; 2) the transmission of data; 3) the encryption code which protects the content of the message; and 4) the content of the message itself. 45 These components in some ways resemble telephone transmissions, and in other ways traditional paper mail. Electronic mail cannot be satisfactorily analogized to any existing communications technology. It is a wholly new technology.
A variety of legal and policy questions may emerge as GTME develops 3D-Mail. Most likely to arise in the Hong Kong context are issues surrounding the right of government to interfere with communication technologies. Questions in this area include:
More specific legal issues are likely to be implicated by 3D-Mail. Freedom of speech issues would arise if the Chinese government were to place content-based restrictions upon the speech of users. Copyright issues would arise as they do in the current e-mail context whenever copyrighted text or other material is transmitted without permission. Intellectual property issues (more substantively, patent and trademark issues) are likely to surface involving not only GTME's patents, but any user who makes use of another's trademark in a 3D-Mail transmission. Issues involving the obscenity and indecency of 3D-Mail may arise.
The development of 3D-Mail is likely to heighten privacy concerns as users begin to send seemingly more personal visual images and audio messages they may not want others to see or hear. Privacy has two components: privacy as against other private actors and privacy as against government. While the former is an important concern, the analysis below is confined to the latter.
A key concern for 3D-Mail users in Hong Kong will be the privacy of their communications. Imagine a darkened office in which soldiers sit before computer terminals, coffee cup in one hand, mouse in the other, randomly monitoring the electronic communications of private citizens. Day after day, the soldiers click through the in-boxes of anyone and everyone. How far-fetched is this scenario in the Hong Kong of the future -- or even in the United States?
Law enforcement access to communications may be justified in some circumstances, but the right of the individual to be protected from "unreasonable search and seizure" is always an issue.46 In an age of rapidly developing technology, judicial attempts to analogize to older forms of technology can be problematic, as discussed below. In the United States, some degree of definition has been provided by courts regarding law enforcement's ability to search or seize an electronic mail transmission. Courts sometimes have allowed law enforcement officials access to the content of electronic messages while declaring that a seizure has not taken place at all. Some disturbing practical results can be contemplated.
The first test applied by the Supreme Court is a threshold test. Has a "search," as contemplated within the Fourth Amendment, taken place at all? In Katz v. United States in 1967,47 the Supreme Court found that electronic monitoring by the government of conversations involving the user of a pay telephone constituted a search and seizure within the meaning of the amendment. The inquiry as to whether a search has occurred involves the communicator's reasonable expectation of privacy in the transmission.48 This test involves both subjective and objective standards. The individual may, by his or her conduct, intend the communication to remain private, but the constitutional inquiry goes further: the expectation of privacy must be one that society is prepared to recognize as reasonable.49 If no privacy expectation is found, no search exists, and no judicial approval for the intrusion is required.
The Fourth Amendment, as it relates to telephone conversations, makes "information voluntarily turned over to third parties"50 non-private information. Once the telephone has been dialed, the fact of the call has been released. This interpretation led to judicial approval in Smith v. Maryland of a device used by law enforcement to track calls to and from a designated telephone number without first obtaining a warrant. "A pen register records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released."51 Thus, information about the fact that a telephone call between two telephone numbers took place can be obtained by law enforcement without performing a Fourth Amendment search or seizure.
Limits have been imposed by Congress on law enforcement access to new technologies and forms of communication. Shortly after the Katz decision, Congress addressed the question in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. 2510-2520), often referred to as the Federal Wiretap Act, which outlined the limits of law enforcement surveillance powers.52 The Act provided limited authorization for wiretaps if the government first obtained a court order. Relevant sections of the Wiretap Act were amended and updated in 1986, in part to take into account new technologies such as electronic mail.53
The original Wiretap Act had not taken into account the massive growth of technology and the new forms of communication that would follow the development of the personal computer, and by 1990, had begun to overwhelm telephone lines with data. Electronic mail was popularized, along with facsimile machines, pagers, voice-mail systems, and data on the Internet. The means of transmission changed, too. The traditional concept of a telephone line, as conceived in the original legislation, was replaced by fiber-optic cables, microwave transmissions and cellular systems.54
The result was the Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S. C. ¤¤ 2510-2521, which modified the Federal Wiretap Act to protect the content of e-mail messages.55
The ECPA provides in pertinent part:
"Except as otherwise provided in this chapter, any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral or electronic communications . . . shall be subject to suit as provided in subsection (5)."56
The statute divides communications into "wire," "oral" and "electronic" types. 3D-Mail would be an "electronic" communication within the meaning of 18 U.S.C. ¤ 2510(12). This is because it does not involve a human voice, so is not "wire" or "oral" communication. See ¤ 2510(1), (2), (18).57 The definition of an electronic communication under ECPA is ". . . any transfer of signs or signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system . . . "58
The ECPA issue giving rise to the most controversy is the interpretation of the word "intercept." Under the original Federal Wiretap Act, the word was defined to mean " aural . . . acquisition of the contents of any wire . . or oral communication through the use of any electronic, mechanical or other device."59 However, under the new legislation, e-mail can be accessed by law enforcement without being seized. This happens because the definition of "electronic communication" in the ECPA means "transfer" of the information but not its "storage." An electronic communication may be put into electronic storage, but the storage is not itself a part of the communication.60 The distinction leads to different treatment under the law based on the status of the message:
"When a transmitted communication is later electronically stored, [and] this is the case with both E-mail and voice mail messages . . . during the transmission phase, any protection against unlawful interception . . . is governed by ¤ 2511. On arrival in storage, the same messages are subject to ¤ 2701."61
In a 1994 case, Steve Jackson Games v. United States Secret Service , 36 F.3d 457 (5th Cir.1994), the Fifth Circuit Court of Appeals provided the most enlightening discussion to date of electronic mail search and seizure under the ECPA. In 1990, the U.S. Secret Service conducted an investigation into computer hacker activity which involved a powerful decryption scheme. In the wrong hands, it would have been was capable of bringing down emergency 911 telephone service. According to BellSouth, the decryption scheme also was capable of gaining access to information within the Defense Department.62 The director of a company called Network Security Technology, a Bell affiliate, reported that the decryption scheme had been posted on at least one bulletin board system, or BBS, in Illinois.
A suspect in the investigation was working for Steve Jackson Games in Texas, assisting in the operation of the company's BBS. The Illinois bulletin board's nickname was "Illuminati." The Secret Service suspected the decryption scheme was present on the "Illuminati." It obtained a search warrant for all of the Steve Jackson Games company's computer equipment, materials and data that related to the alleged hacker activity. The Secret Service gained control of the computer and all its stored information, prohibiting use of the server for more than three months.63 The computer provided the backbone of the Steve Jackson Games company.
When the computer was returned for use, the company discovered that information unrelated to the hacker suspect's alleged illegal conduct had been accessed and removed. This information included private electronic mail messages sent from one member of the bulletin board to another. The Secret Service said it did not review contents of the messages, saying that it merely had run "keyword searches" but the district court found that portions of the messages had been read and deleted.64
The Fifth Circuit affirmed the lower court's decision that the Secret Service taking of the central computer which housed a bulletin board system did not reach the level of "interception" of an electronic communication.65 The court said the Secret Service did not "intercept" the e-mail because there was no contemporaneous acquisition of it by the Secret Service with an electronic device as it was transmitted.66 This holding is in spite of the fact that the BBS computer, at the time of seizure, contained 162 unopened pieces of e-mail intended for the use of people affiliated with Steve Jackson Games. 67
Procedural requirements for obtaining a warrant, and time limits on the use of the warrant, are rendered meaningless by the court's interpretation of the ECPA. Law enforcement officials need only wait until the message passes out of the sender's PC, through the wire or cellular transmission, and into "storage" at the server. At that point the message may be legally seized without a search warrant. 68
One of the chief shortcomings of the Fifth Circuit analysis in Steve Jackson Games was its failure to recognize fundamental differences between "wire" communications and "electronic" communications, despite the distinction in the ECPA. 69 In determining the validity of e-mail searches, courts have relied upon an analogy between voice telephone calls and information transmitted digitally over telephone lines.70 There was no expectation of privacy in a police department e-mail system which stored incriminating messages on a central server.71 As a result, the police electronic mail system was found to raise a lessened expectation of privacy than an ordinary telephone call:
". . . [S]ome aspects of the system (its primary though not exclusive purpose, the restrictions placed on the contents of messages, the limited number of persons with whom one can communicate using it, and the fact that police departments routinely and properly record their communications) suggest that one should expect, when using it, less privacy than one might expect when, say, making a private telephone call, even from a police station. "72
The case involved a very public form of communication, that of police using official channels. The analysis is not directly applicable to the private e-mail context. However, the case illustrates flaws in the analogy between the voice call and e-mail. The two are not similar communications simply because they use the same technology (local telephone lines) to transmit messages. As discussed below, courts recently have begun to draw encouraging distinctions between pen register searches and e-mail seizures.
E-mail differs from telephone communication in that recording the number dialed accomplishes nothing in the electronic mail context. Devices often used to track telephone habits of suspected criminals, including the pen register and trap-trace device, in the e-mail context would record only the placing of a local telephone call to a computer server.73 These devices are available to law enforcement without first obtaining a warrant, under an exception codified in the ECPA.74 While these technologies are capable of recording the existence of an electronic message transmission, they are not effective at monitoring either content or final destination, and thus will be of little use in law enforcement attempts to track and monitor e-mail transmissions. This is true whether the individual under surveillance is sending or receiving information. In either case, the placing of a local telephone call to a widely used local computer server will be the sole indicator that an e-mail transmission has taken place.
No content is retrieved in the pen register context.75 By definition, the seizure of e-mail at a server site encompasses content. As yet no guidance has been provided in situations in which the e-mail message is intercepted in transit and the content reviewed by law enforcement. Language in Steve Jackson Games indicates such an interception might receive the same scrutiny and need for judicial approval needed for a traditional wiretap.76
E-mail differs from a telephone call in that any number of e-mail systems may be accessed by an individual through a given server. An individual user may maintain several e-mail accounts with one server, or be hooked up to multiple servers. It would be not at all uncommon for users to access one server from their workplace and another from home.
In a case where a user maintained more than one "screen name," or password, with a server, probable cause did not support the expansion of an authorized search of one screen name into others. (Law enforcement officials suspected child pornography had been transmitted via electronic mail by the user.)77 However, communications discovered in the prohibited search of a companion electronic mailbox were admissible under the "good faith" exception to the exclusionary rule, because the server had turned over communications from all boxes in response to a properly limited government request. 78
The case illustrates the problem of multiple boxes. While the user was the owner of both screen names, one can easily imagine a situation in which different people (perhaps roommates) access different boxes on the same server. The two users share a telephone line and dial the same number, but maintain their individual expectations of privacy in their communications. The problem has yet to be addressed.
Despite the inclusion of the word "mail" in electronic mail, there are critical distinctions between postal letters and the messages exchanged between personal computers. The Supreme Court requires a warrant when law enforcement officials seek to view the contents of a package in the mail. In Walter v. United States, the Court stated "sealed packages in the mail cannot be opened without a warrant . . . an officer's authority to examine a package is distinct from his authority to examine its contents."79
Even though investigators in the Walter case became suspicious because of the outside appearance of packages and their labels, a warrant nevertheless was required before the packages could be opened.80 Perhaps there is a useful parallel between electronic mail and traditional postal packages. A warrant is not required when no content is to be viewed by authorities, and a warrant is required when contents are to be viewed.
While no court has analyzed the issue at length, it seems likely that a key factual distinction would push electronic mail into a different category. The postal system in the United States has existed in a public or semi-public capacity for most of the nation's history. An element of public trust enters into deliveries conducted by the U.S. Postal Service. There exists no corresponding "U.S. Electronic Mail Service" through which a delivery can be made. Each server is a private entity, acting under its own guidelines. The objective expectation of privacy in electronic communications is thus lower than that in the postal context.
Analogies to other modes of message delivery, including telephones and postal packages, offer similarities but little clarity about the nature of electronic mail. Does e-mail better resemble a telephone call or a postcard? Perhaps the difficulty of analogizing to a new technology is the reason courts have struggled to develop a settled policy on search and seizure of electronic communications.
The encryption of data may result in traditional methods of search and seizure by law enforcement becoming less and less fruitful.81 Digital data can be scrambled in such a way as to render it useless to anyone but the intended recipient. Despite the efforts of the U.S. Commerce Department to create an international data encryption agreement and to regulate encryption domestically, the growth of the technology continues.82
The relevance of encryption to the policy debate is that encryption by its nature implies a heightened expectation of privacy, which is the starting point of the Fourth Amendment inquiry. In the Katz context this could mean that upon discovery of an encrypted message, a law enforcement official must obtain a warrant prior to decoding the message and viewing its contents. The Katz doctrine maintains a balance between the individual's subjective expectations of privacy and society's objective expectations of privacy. As a practical matter, encrypted messages may be beyond the ability of law enforcement to decode and thus the warrant question becomes more theoretical than practical.83
However, the inquiry into society's reasonable expectation of privacy in encrypted communications is an important one. There are economic factors favoring such an expectation including the protection of financial transactions like those conducted on stock and currency markets including Hong Kong's round-the-clock gold market. However, prosecutors may be able to introduce arguments based on criminal use of encryption that militate against any objectively reasonable expectation of privacy in some e-mail communications. The issue is one which remains to be resolved.
The second step in the Supreme Court's Fourth Amendment analysis is to inquire about the reasonableness of the search. Where a warrant has been required, the suspected content of the transmission has played some role in the determination of the reasonableness of the search. In one case, a warrant properly authorized search and seizure of stored computer files in computer on-line service accounts of suspects in a child pornography prosecution.84 There was reasonable cause to believe that some of the files contained forbidden depictions, and the actual content of the computer file could not be determined until it was opened using the appropriate application software stored on the desktop computer.85
It appears that even when the warrant requirement is applied to the search and seizure of electronic mail communications, law enforcement officials are able to obtain a search warrant by making a particularized showing of need for the e-mail content.86 The doctrine expressed the above case, United States v. Lamb, 945 F.Supp. 441 ( N.D. N.Y. 1996), restates ECPA strictures and Fourth Amendment law in other contexts, and in doing so leaves the practical result in an e-mail case unchanged from what it would have been had an older form of communication been involved.
Lamb, the most recent electronic mail seizure case, arose in the context of the Communications Decency Act of 1996. The CDA was intended to target purveyors of on-line pornography who may make their images available to minors. While the CDA calls up primarily First Amendment freedom of expression concerns, it also is impacting the Fourth Amendment context as law enforcement officials investigate suspected on-line pornographers and search or seize the computers and systems allegedly used to transmit pornography.87 It is possible the analysis of a court would be different in different circumstances.
Protections against search and seizure enjoyed by Hong Kong citizens are, in theory, as broad or more broad than those enjoyed by their American counterparts. Hong Kong statutes and common law were not a part of the research process behind this proposal to GTME, but the most fundamental of Hong Kong's laws were accessed. The 1990 Basic Law includes a section on search and seizure in Chapter III on Fundamental Rights and Duties of the Residents. Article 28 [Personal Freedom] opens with the statement "The freedom of the person of Hong Kong residents shall be inviolable."88 The breadth of this protection is narrowed considerably by the qualifications which follow it. The Article protects against "arbitrary or unlawful arrest, detention or imprisonment" and "arbitrary or unlawful search of the body of any resident."89 The phrase "arbitrary or unlawful" is not further defined in the Basic Law.
An agreement signed by Britain and China in 1984, as the two negotiated the 1997 changeover, provides for protection in seven general areas of concern. Among the guarantees contained in the treaty are assurances that Hong Kong citizens will see their "fundamental human rights" protected and an "independent" judiciary will be maintained.90
In recent months, though, China has suggested it may scrap the pieces of the Basic Law which guarantee civil liberties. China also intends to eliminate the popularly elected legislative body which enacted the wide-ranging protections. An appointed "Provisional Legislature" will take up lawmaking duties after the transfer of power.91 The independence of the judiciary has been maintained, to an extent. A court of final appeals will make decisions for Hong Kong, in effect creating a Hong Kong-specific common law. However judges on the high court will be appointed by the Beijing government.92 Christopher Patten, the current and last British governor of Hong Kong, openly attacks the Chinese plans:
"These threats to key provisions of Hong Kong's civil liberties legislation have been roundly condemned in Hong Kong and have generated negative publicity overseas. Hong Kong's legal profession has been united in its opposition. . . The question which everyone asks China and its supporters is 'why?' Why are these steps necessary?"
Patten suggests freedoms of speech, press and travel among others foster an openness which, as much as economic freedoms, have made Hong Kong a success story. 93 With regard to search and seizure and civil liberties generally, predictions made from our vantage point about specific actions the Chinese government is likely to take would be of little value. Hong Kong citizens face an uncertain future in many ways, but concerns about reductions in personal liberties can be said to be among their greatest concerns. Hong Kong attorney Zhao Zhang, a managing partner for Dorsey & Whitney Hong Kong, is a Beijing native who made the move to Hong Kong in 1995. In a presentation at Hong Kong University of Science and Technology,94 Zhang indicated "extreme concern" about the status of civil liberties.95 "Beijing has its own interpretation of freedom . . . the interpretation of the new legislature remains to be seen."96
While the opportunity to develop new technology should not be passed up, caution is advisable in the electronic mail area. The technology enjoys popular use, but is vulnerable to government intrusion. GTME should develop the 3D-Mail software, but take several cautionary steps with regard to its implementation both in Hong Kong and the United States.
In Hong Kong GTME should begin working now, prior to the changeover, to get cooperation from government officials charged with oversight of information technology development. GTME should work to place 3D-Mail on the list of important new projects, so that when the Chinese are in power it will be established as a priority. For now, GTME can use the U.S. Commerce Department services to make contacts in Hong Kong and to do research on large businesses which may have an immediate interest in the software package.
It should be understood that there remains a potential lack of privacy in the software package. At least two steps should be taken to deal with this concern. GTME should develop encryption technology for 3D-Mail. Whether this project is part of the Commerce Department's program for new technology is a decision for others at GTME. Also, a disclaimer should be developed for transmission along with each message on the 3D-Mail system, explaining that neither GTME nor the user's telephone carrier can prevent government access to the content of the message. This provides a consumer service in that it clarifies the expectation of privacy as it stands.
Though a few courts have made troubling rulings on electronic mail seizure, it should be encouraging that the law is still developing and that many courts, including the U.S. Supreme Court, have yet to squarely address the issue. Further, it should be noted that attempts have been made by the U.S. Congress to keep up with the development of new technologies and to include those technologies in federal wiretap legislation. GTME's substantial lobby resources should be directed toward the writing of federal legislation which protects the communications of 3D-Mail users.
This proposal is intended to have some effect on the ways GTME employees use our internal electronic mail system. Employees need to consider themselves on notice about the potential lack of privacy involved and carefully select the information exchanged via e-mail. The corporation's electronic mail could be very closely scrutinized not only by law enforcement, but potentially by a variety of other governmental agencies. Thus, some messages are best left unwritten.
a University of Iowa College of Law Cyberspace Law Seminar - Spring 1997. This paper does not address events occurring after June 30, 1997.
aa The author is a third-year student at the University of Iowa College of Law.
1 U.S. Central Intelligence Agency, CIA World Fact Book 1996 (visited April 23, 1997) <http://www.odci.gov/cia/publications/95fact/index.html>
2 United States Department of Commerce, Department of Commerce Home Page (visited Feb. 23, 1997) <http://www.doc.gov/commercehomepage.html>
3 Better Hong Kong Foundation, Hong Kong: Heart of Asia (visited Feb. 23, 1997) <http://www.bhkf.org/heart_of_asia.html>
4 See CIA World Factbook, supra note 1.
5 See Hong Kong: Heart of Asia, supra note 3.
6 See CIA World Factbook, supra note 1.
7 Id.
8 Hong Kong: Table of Contents (visited April 23, 1997) <http://www.tradecompass.com80/library/books/comguide/HongKong.tocc>
9 Id.
10 See Hong Kong: Heart of Asia, supra note 3.
11 Id.
12 See Hong Kong: Heart of Asia, supra note 3.
13 See CIA World Factbook, supra note 1.
14 Id.
15 Id.
16 Id.
17 Hong Kong Industrial Technology Centre Corporation, Technology Centre (visited Feb. 23, 1997) <http://202.64.114.108:80/trial/fl.html>
18 Chris Patten, Farewell to My Hong Kong, Newseek, March 3, 1997 at 38. Patten is the current and last British governor of Hong Kong.
19 Teleconference interview with Zhao Zhang, Hong Kong Managing Parter, Dorsey & Whitney (March 11, 1997).
20 U.S. House of Representatives Law Library, Hong Kong Special Administrative Region Basic Law (visited April 23, 1997) <http://law.house.gov/64.htm>
21 Patten, supra at note 17.
22 Hong Kong Super Net Limited, Hong Kong Super Net (last updated April 24) <http://www.hk.super.net>
23 Gloster, Peter, PC World Hong Kong On-Line (visited April 23, 1997) <http://www.pcworld.com.hk>
24 Id.
25 Hong Kong Business Web Ltd. Hong Kong Industry (last updated Oct. 8, 1996) <http://www.businessweb.com.hk>
26 United States Department of Commerce, supra at note 2.
27 McDade, Bill & U.S. Department of Commerce,Technology Administration (visited Apr. 24, 1997) <http://www.ta.doc.gov/>
28 U.S. Department of Commerce, Office of Technology Policy(visited Feb. 23, 1997) <http://www.ta.doc.gov/otphome>
29 Reinsch, Bill & U.S. Department of Commerce, Bureau of Export Administration (last updated April 17, 1997) <http://www.bxa.doc.gov>
30 Id.
31 Id.
32 Id.
33 U.S. Department of Commerce, International Trade Administration (visited Feb. 23, 1997) <http://www.ita.doc.gov/ita_home>
34 Id.
35 U.S. Department of Commerce, Asia Business Information Center (visited April 24, 1997) <http://infoserv2.ita.doc.gov/apweb.nsf>
36 Id.
37 See Hong Kong: Heart of Asia, supra note 3.
38 Id.
39 U.S. Department of Commerce, National Telecommunications and Information Administration (visited April 24, 1997) <http://www.ntia.doc.gov/>
40 U.S. Department of Commerce, Patent and Trademark Office , (last updated April 17, 1997) <http://www.uspto.gov/>
41 Netscape Communications Corp, Netscape's Home (visited April 24, 1997) <http://home.netscape.com/comprod/products>
42 Chris J. Katopis, "Searching" Cyberspace: The Fourth Amendment and Electronic Mail, 14 Temp. Envtl. L. & Tech. J. 175, 190 (1995).
43Id.
44 See "Searching" Cyberspace, supra note 41, at 190.
45 See "Searching" Cyberspace, supra note 41, at 196.
46 The U.S. Constitution's Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [U.S. Const. amend. IV (1791)].
47 Katz v. United States, 389 U.S. 347 (1967).
48 See Katz v. United States, supra note 45.
49 Smith v. Maryland, 442 U.S. 735, 735-736 (1979).
50 Id.
51 Id.
52 Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2510-2520 (1968) (as amended by the Electronic Communications Privacy Act of 1986).
53 Id.
54 Gregory L. Brown, Recent Development: Steve Jackson Games, Inc. v. United States Secret Service: Seizure of Stored Electronic Mail is not an "Interception" Under the Federal Wiretap Act, 69 Tul. L. Rev. 1381, 1386 (1995).
55 Electronic Communications Privacy Act, 18 U.S.C. 2510(12) (1986).
56 Id.
57 Id.
58 See ECPA, 18 U.S.C. 2510(4).
59 Id.
60 Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 461-62 (5th Cir.1994).
61 Thomas R. Greenberg, Comment: E-Mail and Voice Mail: Employee Privacy and the Federal Wiretap Statute, 44 Am.U.L.Rev. 219, 247-48 (1994).
62 Nicole Giallonardo, Casenote: Steve Jackson Games v. United States Secret Service: The Government's Unauthorized Seizure of Private E-Mail Warrants More Than the Fifth Circuit's Slap on the Wrist, 14 J. Marshall J. Computer & Info. L. 179, 187 (1995).
63 See Steve Jackson Games, 36 F.3d 457, supra note 59 at 461.
64 Steve Jackson Games, Inc. v. United States Secret Service, 816 F. Supp. 432, 439-41 (W.D. Tex. 1993), aff'd 36 F. 3d 457 (5th Cir. 1994).
65 See Steve Jackson Games, 36 F.3d 457, supra note 59 at 461.
66 See Steve Jackson Games, 36 F.3d 457, supra note 59 at 458.
67 Id.
68 See 69 Tul. L. Rev. 1381, 1390 supra note 53.
69 Id. at 1390.
70 See 14 Temp. Envtl. L. & Tech. J. 175, 190 supra note 41.
71 Bohach v. City of Reno, 932 F.Supp. 1232, 1235 (D.Nev.1996).
72 Id. at 1235.
73 See 14 Temp. Envtl. L. & Tech. J. 175, 190 supra note 41.
74 Id.
75 See Electronic Communications Privacy Act, 28 U.S.C. 2510(8).
76 See Steve Jackson Games, 36 F.3d 457, supra note 59.
77 United States v. Maxwell, 43 Fed R. Evid. Serv. 24, at 28 (A.F.Ct.Crim.App.1993).
78 Id. at 30.
79 Walter v. United States, 447 U.S. 649 , 654 (1980).
80 Id.
81 See 14 Temp. Envtl. L. & Tech. J. 175, 203 supra note 41.
82 Reinsch, Bill & U.S. Department of Commerce, Bureau of Export Administration, supra note 28.
83 See 14 Temp. Envtl. L. & Tech. J. 175, 203 supra note 41.
84 United States v. Lamb, 945 F.Supp. 441 ( N.D. N.Y. 1996)
85 Id.
86 Id.
87 Id.
88 Hong Kong Basic Law Ch. III Art. 28 ¤(1), available at <http://law.house.gov/64.htm>
89 Id. at Art. 28 ¤(2).
90 Zhang presentation. (Zhang read quoted material from an overhead presentation. Primary source documents were not available).
91 See Crhistopher Patten, Farewell To My Hong Kong, supra note 17.
92 See teleconference interview with Zhao Zhang, supra note 18.
93 Id.
94 Id.
95 Id.
96 Id.
Return to Cyberlaw Home Page and Contents
Return to Nicholas Johnson Home Page