President Obama Signs Directive Expanding Whistleblower Protections

To the delight of many concerned about civil liberties and government accountability, President Obama recently issued a directive expanding rights of employees in the intelligence community who report waste, fraud and abuse[1].  These “whistleblower” protections have come into focus in light of the Julian Assange wiki-leaks scandal.  There have been numerous prosecutions in recent years under the Espionage Act[2].  Civil liberties groups expressed concern for the rights of intelligence community workers.

The directive applies to employees serving in the Intelligence Community, particularly the Central Intelligent Agency, Defense Intelligence Agency and National Security Agency, or employees who are eligible for access to classified information.  It protects the rights of the aforementioned employees, mandates review procedures, and emphasizes agency accountability.  Some of the key elements of the directive include:

  • Prohibits retaliation of a protected disclosure by an Intelligence Community employee
  • Prohibits retaliatory actions against employees’ security clearances and other personnel actions
  • Requires each agency to implement a review process and consistent due process rights
  • Provision of appeal rights
  • Requirement of agency programs for outreach, education and counseling on new rights.

Despite the directive, a chorus of groups has called for great employee protection and more action from Congress.  It is in Congress’s discretion to statutorily enact President Obama’s directive and expand the workers covered by the directive.

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Sixth Circuit Authorizes Warrantless GPS Tracking

United States v. Melvin Skinner, Slip Op (6th Circuit) (Aug. 14, 2012)

By: Wassem Amin

On August 14, 2012, Constitutional Fourth Amendment protections took a leap backwards in an illogical ruling by the Sixth Circuit. The case involved a marijuana courier, who used two disposable GPS-equipped cell phones, which were subsequently tracked by the Drug Enforcement Agency. The DEA obtained a 2703(d) order, not a warrant, for real-time GPS tracking information from the defendant’s cell phone carriers, which led to the defendant’s arrest.

In a decision that, in this writer’s opinion, misapplies the law, the Court held that law enforcement agents do not require a warrant to obtain tracking information from a GPS-equipped cell phone, analogizing it to a license plate.

In reaching this holding, the Sixth Circuit erroneously used two distinct technologies interchangeably–namely cell-site data and GPS tracking. By doing so, the Court neglected the fact that there are two different statutes that apply to each of the foregoing–Federal Rules of Criminal Procedure Rule 41 (“Rule 41”) and the Stored Communications Act (“SCA”). In fact, the Court never even mentions either one of the statutes within the opinion. To obtain access to information from a tracking device, the Government must obtain a warrant from the court after making a showing of probable cause, using Rule 41. On the other hand, § 2703(d) of the SCA, which requires a clerk magistrate’s order and a showing much less than probable cause, is used to obtain Cell Site Location Information (“CSLI”). Although the opinion never attempts to make this critical distinction, the DEA in this case used two 2703(d) orders to obtain the cell phone’s tracking information.

Information exchanged between a cell phone and the nearest cell phone tower—called Cell Site Location Information (“CSLI”)—allows service providers to triangulate a customer’s location. In a densely populated area, the triangulation could be fairly precise—usually within a few hundred feet. The SCA “addresses access to stored wire and electronic communications and transactional records. It . . . protects privacy interests in personal and proprietary information while protecting the Government’s legitimate law enforcement needs.”

The portion of the SCA relevant to CSLI disclosure is that which addresses the disclosure of “record[s] or other information pertaining to a subscriber of [an electronic communication] service.” To obtain a 2703(d) order, the government must provide an affidavit showing “specific and articulable facts that there are reasonable grounds to believe” that the information sought from the cell phone provider “is relevant and material to an ongoing investigation.” The judge then signs the ex-parte order if he finds that the requisite factual showing has been made.

On the other hand, GPS location information requires that a cell phone be equipped with a GPS chip–and allows the precise real-time tracking of a cell phone. Information from a GPS-equipped cell phone is classified as a tracking device and thus requires a warrant. The definition of a tracking device in Rule 41 is a device “which permits the tracking of the movement of a person or object.” The term tracking device is nowhere to be found in the SCA, making it apparent that legislature never intended it to so apply.

The Sixth Circuit uses the terms “cell-site data” and “GPS” several times throughout the opinion interchangeably. In reality, these two technologies are governed by two different statutes. The Court stated that “[the defendant] does not have a legitimate expectation of privacy in cell site data….” A couple of paragraphs down, it then says the “Government’s argument is strengthened by the fact that the authorities sought court orders to obtain information from [the defendant’s] location from the GPS capabilities of his cell phone.” Nowhere in the opinion does it distinguish between the different standards required. In fact, it appears that the Sixth Circuit is unaware that such a distinction exists.

This distinction is critical for one important reason–the Fourth Amendment, as expressly set out through Rule 41, requires a warrant to obtain tracking device information. Therefore, the defendant in this case should have succeeded in his motion to suppress because the Government never obtained a warrant. It is baffling how the Sixth Circuit completely ignored this basic distinction.

The Sixth Circuit’s holding demonstrates the need for the United States Supreme Court to clarify the Fourth Amendment’s applicability in this area–an opportunity it side-stepped in US. v. Jones. The ambiguity of the current law necessitates that the inquiry be answered on a case-by-case basis by thousands of different magistrate judges—many of whom who have their own understandings as to what is private or not and may lack the necessary technological expertise to ascertain what kind of information is disclosed.

The full opinion can be found here.

 

*The opinions expressed in this blog entry are those of the author and do not necessarily reflect the Firm’s view.

Consumer Protection: First Circuit Holds that ZIP Codes Are Private Customer Information Protected By Statute

ZIP codes are personal identification information under Mass. General Law c. 93, § 105(a), which prohibits writing such information on credit card transaction forms. Tyler v. Michaels Stores, Inc., 2012 WL 32208 (2012).

Summary: As a matter of first impression, the First Circuit completed its construction of G.L. c. 93, § 105(a), which prohibits any entity from causing personal identification information to be written on a credit card transaction form when such information is not required by the credit card issuer and is not required for shipping, delivery, or installation. The Plaintiff in the case was asked for her ZIP code by a sales employee at Michaels Arts & Crafts when she made a purchase. Michaels used this information in conjunction with a commercial database to locate customers’ full address and send them unsolicited marketing materials. The Court held that Michaels’ action constituted a violation of § 105(a), but also held that the Plaintiff failed to sufficiently allege a causal connection between Michaels’ violation of the statute and any cognizable injury necessary for recovery under G.L. c. 93A, § 9(1). The Court also held that the Plaintiff failed to sufficiently allege a claim for unjust enrichment.

Discussion: The Court held that a ZIP code can constitute a personal identification information under Section 105(a) because it may be necessary to the credit card issuer to identify the card holder in order to complete a transaction, meaning that a ZIP code can potentially be used to assume the identity of the individual for fraudulent purposes. The Court also held that a retailer’s electronic card terminal at the point-of-purchase may contain a credit card transactional form within the meaning of Section 105(a), regardless of whether such form is electronic or paper.

However, the First Circuit held that the Plaintiff failed to allege a cognizable injury because there was no allegation that Michaels’ deceptive act caused her unreasonable risk of fraud, put her in a worse and untenable position, or diminished her creditworthiness. The Court further held that receiving unwanted commercial advertising in the mail was the not a cognizable injury under 93A, since Section 105(a) was enacted to prevent fraud, not harassment.

Unjust enrichment typically implies a circumstance in which reasonable people would expect payment by the defendant to the plaintiff for some benefit conferred by the plaintiff on the defendant. Court rejected the Plaintiff’s unjust enrichment claim because she did not sufficiently argue that a reasonable person would expect compensation for providing a ZIP code to a merchant, or that had she been fully informed, she would have requested payment for divulging her ZIP code.

Implication: To prove a violation of § 105(a) – credit cards; checks; personal identification information – the Plaintiff had to show that the Defendant (1) wrote or caused to be written, (2) personal identification information, (3) on a credit card transaction form, (4) which information is not required by the credit card issuer.

105(d) provides that “any violation of the provision of [105(a)] shall be deemed to be an unfair and deceptive trade practice as defined in section 2 of chapter 93A.

Under 93A, a successful claim requires a showing of (1) a deceptive act or practice on the part of the defendant; (2) an injury or loss suffered by the consumer; and (3) a causal connection between the defendant’s deceptive act or practice and the consumer’s injury.

To succeed in a claim for unjust enrichment, a plaintiff must show (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the benefit; and (3) acceptance or retention by the defendant of the benefit under circumstances inequitable without payment for its value.