Police Blotter: Verizon forced to turn over text messages

TalkBack 31 of 32:

Next »

« Previous

• Thread View
• Flat View

RE: Police Blotter: Verizon forced to turn over text messages

Regardless of one's policy views on civil liberties and constitutional rights, the outcome you have described should not come as a surprise to anyone who is familiar with federal and state laws governing subpoenas and other pretrial discovery procedures in both criminal and civil proceedings. If you are suggesting that the case you have described represents a major new development heralding an unprecedented loss of personal privacy or constitutional rights, your view is simply not consistent with established law. Federal Rules of Criminal Procedure Rule 17, Federal Rules of Civil Procedure Rule 45, and other provisions of federal and state law, have for many years granted courts, criminal prosecutors, and even counsel in civil cases legal authority to compel through subpoenas the production of written and electronic communications, including but by no means limited to correspondence, memoranda, e-mail, and other forms of communication such as text messages, in both criminal and civil cases. The federal statute cited in this case, 18 USC ?2703, makes a fairly straightforward distinction with regard to criminal investigations. Under ?2703(a), if an electronic message has been in an electronic communications system for less than 180 days, government officials have to get a search warrant in order to obtain it. Under ?2703(b), though, if an electronic message has been in such a system for more than 180 days, all they have to do is issue a subpoena authorized by federal or state law. Under ?2703(d), they also have the alternative of obtaining a court order from any federal or state court of competent jurisdiction, upon a showing that the communications are relevant and material to an ongoing criminal investigation. While ?2703 has been amended a number of times in recent years, the basic provision was enacted in 1986 by Public Law 99-508, and thus appears to have been on the books for about 21 years now. With regard to the attempt by the defendant in this case to assert attorney-client privilege, that privilege is far narrower than appreciated by most non-lawyers, and is construed in a narrow and fairly technical manner by most courts. By no means all communications between client and counsel are privileged, courts regularly review such communications in order to rule one way or the other on claims of privilege, and courts regularly order the disclosure in civil as well as criminal cases of communications between client and counsel that do not meet the detailed requirements of federal and state law for the applicability and scope of the attorney-client privilege. This is not anything new, and it is not the result of any recent policy initiatives. It is simply the way that the federal and state courts have routinely handled such matters for a number of years, under longstanding federal and state law governing criminal and civil court proceedings. While reasonable people might differ regarding the constitutional and policy issues underlying FRCrP Rule 17, FrCP Rule 45, 18 USC ?2703, or other federal or state statutes bearing on such matters, it is simply not accurate to characterize the outcome in this case as a new development or a sudden departure from prior law. It appears to be a routine application of laws that have been on the books for a number of years.

Posted by: 02Pete   Posted on: 12/06/07 You are currently: a Guest | Members login | Terms of Use

Alert moderator to an offensive message

Subscribe to this discussion via Email or RSS

SponsoredWhite Papers, Webcasts, and Downloads

• Building the Virtualized Enterprise with VMware Infrastructure VMware VMware virtualization software has been adopted by over 120,000 enterprise ... Download Now
• Building the Virtualized Enterprise with VMware Iinfrastructure VMware VMware virtualization software has been adopted by over 120,000 enterprise ... Download Now
• Why Isn't Server Virtualization Saving Us More? A Few Small Changes May Dramatically Increase Your Efficiency VMware Companies have rapidly adopted server virtualization over the past few ... Download Now