CIPP-US > Government and Court Acces to Private-sector Information > Flashcards

Government and Court Acces to Private-sector Information Flashcards

Learn how laws such as the PATRIOT Act and ECPA govern government and judicial access to private-sector data. (99 cards)

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1
Q

What does the Fourth Amendment protect against?

A

Unreasonable searches and seizures by the government.

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2
Q

What must a warrant be based on to be valid under the Fourth Amendment?

A
  • Probable cause
  • Supported by oath or affirmation
  • Must describe the specific place and items to be searched or seized
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3
Q

What is the ‘exclusionary rule’ under the Fourth Amendment?

A

Evidence gathered in violation of the Fourth Amendment cannot be used in court.

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4
Q

What is the historical origin of the Fourth Amendment?

A

Colonial opposition to British general warrants that allowed broad searches without targeting specific individuals or locations.

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5
Q

How did the Supreme Court describe the function of the Fourth Amendment in Schmerber v. California (1966)?

A

To protect personal privacy and dignity against unwarranted state intrusion.

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6
Q

What law provides privacy protections for banking customers?

A

Right to Financial Privacy Act of 1978

(RFPA)

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7
Q

What did the Supreme Court rule about banking records?

A

Banking records are property of the bank, not the customer.

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8
Q

To whom does the RFPA apply?

A
  • Federal agency requests
  • Financial institutions
  • Individual or small partnership (fewer than 5 individuals)
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9
Q

What are the conditions for government access under RFPA?

A

Record reasonably described and one of:

  • Customer authorization
  • Subpoena
  • Warrant
  • Government request
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10
Q

What rights do customers have under RFPA?

A

Advance notice of request and right to challenge disclosure.

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11
Q

What penalties are outlined under the RFPA?

A
  • Actual damages
  • Punitive damages
  • Attorney’s fees
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12
Q

What does the Electronic Communications Privacy Act do?

(ECPA)

A

Extends government data collection restrictions to electronic data transmitted by computers.

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13
Q

What laws amended the ECPA?

A
  • CALEA
  • USA PATRIOT Act
  • FISA
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14
Q

When does HIPAA permit disclosure without patient consent?

A
  • Court order
  • Grand jury subpoena
  • Administrative request
  • Crime
  • Emergency, or
  • If required by law
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15
Q

What are the conditions for HIPAA disclosures under Section 512(f)?

A

Data must be:

  • Relevant
  • Material
  • Specific
  • Limited, or
  • De-identified
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16
Q

What is the Bank Secrecy Act?

(BSA)

A

Requires record keeping and reporting of transactions over $10,000.

Also known as the Currency and Foreign Transaction Reporting Act (1970).

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17
Q

What is the purpose of the BSA?

A

To prevent money laundering and detect illegal activities by requiring financial institutions to keep records and report certain transactions.

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18
Q

Which entities does the BSA apply to?

A
  • Banks
  • Securities brokers/dealers
  • Money service businesses
  • Telegraph companies
  • Casinos
  • Card clubs
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19
Q

What types of transactions does the BSA cover?

A
  • Currency transactions
  • Transportation of monetary instruments
  • Purchases of currency-like instruments
  • Checks
  • Money orders
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20
Q

How long must records be retained under the BSA?

A

5 years for records considered to have a high degree of usefulness.

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21
Q

What is a Suspicious Activity Report?

(SAR)

A

Filed with FinCEN to alert the government about potentially suspicious transactions.

FinCEN: Financial Crimes Enforcement Network

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22
Q

When must a SAR be filed?

A
  • Insider threat
  • Crime involving $5,000+ (with identification)
  • Crime involving $25,000+, or
  • Money laundering over $5,000
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23
Q

What act expanded BSA in 2001?

A

The International Money-Laundering Abatement and Anti-Terrorist Financing Act (part of the USA PATRIOT Act).

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24
Q

What authority did the 2001 Act give to the Secretary of the Treasury?

A

Authority to issue rules implementing modified ‘Know Your Customer’ (KYC) requirements.

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25
What are the **key elements of KYC** requirements?
* Verify identities * Assess risk profiles * Monitor transactions
26
What is the **purpose** of the Foreign Account Tax Compliance Act? | (FATCA)
Targets U.S. taxpayers with foreign accounts to **deter tax evasion** and increase income withholding.
27
What does FATCA require **from financial institutions**?
More detailed **KYC documentation**.
28
How are companies engaged in **cryptocurrencies** classified under the BSA?
As **money service businesses** (MSBs), if they provide hosted wallets, P2P exchanges, or anonymizing services.
29
What types of **crypto-related institutions** may be exempt from BSA classification as MSBs?
Decentralized exchanges and mining pools.
30
What was the ruling in **Olmstead v. United States** (1928)?
**No warrant** required for wiretaps on telephone wires **outside a suspect's building**.
31
How did **Katz v. United States** (1967) change wiretap law?
* Overruled Olmstead * Required warrants for surveillance where a person has a reasonable expectation of privacy
32
What are the **2 elements** of a '**reasonable expectation of privacy**' established in Katz?
1. Subjective expectation of privacy 2. Society recognizes it as reasonable
33
What is the **third-party doctrine**?
If information is **voluntarily disclosed to a third party**, there is **no reasonable expectation of privacy**.
34
Give examples where the **third-party doctrine** applies.
* Public activities * Phone numbers dialed * Bank transactions
35
What was the ruling in **United States v. Jones** (2012)?
* Warrant required for GPS tracking of a car * Changed application of public and third-party exceptions
36
What did the Supreme Court decide in **Riley v. California** (2014)?
Warrant needed to search **contents of a cell phone**.
37
What was the impact of **Carpenter v. United States** (2018)?
* Limited third-party doctrine * Warrant required to access mobile location data
38
What does **Title III of the 1968 anti-crime law** prohibit?
**Wiretaps** on wire, **oral**, or **electronic communications** without meeting an exception.
39
What are **exceptions** to Title III wiretap prohibitions?
* Party to the call * Consent * Ordinary business use ## Footnote Does not preempt stricter state laws.
40
What does the **Stored Communications Act** prohibit? | (SCA)
**Unauthorized collection**, **modification**, or **obstruction** of access to electronic communications in storage.
41
What are **exceptions** to the Stored Communications Act?
Access **authorized** by a service provider or the user. ## Footnote Example: party consent
42
What is a **preservation order** under surveillance laws?
Requires providers to **preserve records or evidences** upon government's request.
43
What is a **pen register**?
Records **outbound** telephone calls.
44
What is a **trap-and-trace**?
Records **inbound** telephone calls.
45
How did the **ECPA** affect pen register and trap-and-trace orders?
Allowed under a lenient standard if **relevant to an ongoing investigation**.
46
What **changes** did the USA PATRIOT Act and USA FREEDOM Act **make to pen register and trap-and-trace**?
* PATRIOT Act expanded use * FREEDOM Act banned bulk collection, limited to specific selectors.
47
What does **CALEA** stand for?
Communications Assistance for Law Enforcement Act
48
What is the **nickname** for CALEA?
Digital Telephony Bill
49
What is the **main objective** of CALEA?
Ensure telecoms support **lawful** law enforcement **interception**.
50
What are **telecoms** required to do under CALEA?
Design systems to enable **lawful** government access.
51
What **agency** implements CALEA?
FCC via rule-making process.
52
What is the **Foreign Intelligence Surveillance Act**? | (FISA)
A 1978 law **authorizing foreign intelligence wiretaps** and establishing surveillance checks and balances.
53
What are FISA's **main objectives**?
Set standards and procedures for **collecting foreign intelligence** in the U.S.
54
When is a FISA order **issued**?
When the main goal is foreign intelligence and there's probable cause **the target is a foreign power** or agent.
55
What is the **role** of the Foreign Intelligence Surveillance Court? | (FISC)
Issues FISA orders. ## Footnote Is briefed by privacy experts called amicus curiae.
56
What **types of surveillance** does FISA authorize?
* Wiretaps * Pen registers * Trap-and-trace orders * Video surveillance
57
What does the **USA Freedom Act require** regarding FISA transparency?
* Annual government reports * Companies can publish FISA and NSL statistics
58
What did the **2008 FISA Amendments Act** introduce? | (FISAA)
**Section 702** for targeted collection of electronic communications for foreign intelligence.
59
How does **Section 702** surveillance work?
* Set by DNI and AG * Certified by FISC * Targets non-U.S. persons abroad for foreign intelligence purposes
60
What are the **two main** Section 702 programs?
* PRISM (selector-based access via U.S. firms) * Upstream (internet traffic monitoring)
61
What was the **purpose** of the USA PATRIOT Act (2001)?
**Expanded FISA powers** post-9/11 to address stateless terrorist threats.
62
What **changes** did the 2008 FISA Amendments introduce?
* Allowed surveillance when one party is abroad * Granted telecom immunity * Added reporting requirements
63
What are **National Security Letters**? | (NSLs)
Subpoenas issued **without judicial approval** for counter-terrorism or intelligence; can be challenged in court.
64
What did the **Snowden revelations** expose?
Classified details about **mass surveillance** by the intelligence community.
65
What did the **USA Freedom Act** (2015) change?
* Ended Section 215 bulk data collection * Tightened judicial oversight of data requests
66
What is the **Judicial Redress Act** (2016)?
**Extended** some U.S. Privacy Act protections to **non-U.S. persons**.
67
What is the '**going dark**' problem?
Encryption **limits officials' ability** to access digital evidence.
68
What happened in **Apple v. FBI** (2016)?
* FBI ordered Apple to unlock a shooter's phone * Apple refused, citing security risks
69
What does the **Cybersecurity Information Sharing Act** of 2015 allow? | (CISA)
Allows the federal government to **share unclassified threat data** with telecom companies and encourages reciprocal sharing.
70
What **rights** does CISA grant to **private companies**?
They may **monitor their own networks** for cybersecurity threats.
71
What are the main tools to **protect sensitive information** in public court records?
* Protective Order * Qualified Protective Order (QPO) * redaction, Rule 5.2
72
What is a **protective order** and how is it granted?
Court order to **restrict access** using redaction or limited access. ## Footnote Requires a three-part test
73
What is a **Qualified Protective Order**? | (QPO)
* HIPAA rule **prohibiting PHI use outside litigation** * Requires **return** or **destruction** after case ends
74
What is **redaction** in the context of public court records?
The process of identifying and **removing or blocking sensitive data** from documents.
75
What does **Rule 5.2** of the Federal Rules of Civil Procedure require?
Redaction to show only: * Last 4 digits of SSN/TIN * Year of birth * Minor’s initials * Last 4 of accounts * City/state of home address
76
Are there exceptions to **Rule 5.2** redaction requirements?
Yes, when filings are made under seal without redaction if appropriate.
77
What are some laws that **require disclosure**?
* Bank Secrecy Act * Food, Drug, & Cosmetic Act * OSHA * HIPAA * State-level laws
78
What is **discovery** in litigation?
* Information disclosure prior to trial * Governed by civil/criminal procedure rules and supervised by judges
79
What happens if someone **fails to comply** with a subpoena?
They may be **held in contempt**, fined, or imprisoned.
80
What does the **USA PATRIOT Act** allow regarding **communication interception**?
Permits interception **with owner authorization** and **if relevant to an investigation**.
81
What is **evidentiary privilege**?
Right to withhold certain information from legal disclosure. ## Footnote Examples: attorney-client, doctor-patient
82
What are **exceptions** to evidentiary privilege?
Consent or the need to prevent imminent physical harm.
83
What case led to the creation of the **Privacy Protection Act** of 1980? | (PPA)
**Zurcher v. Stanford Daily** (1978), where police searched newspaper offices with a warrant.
84
What is the **main objective** of the PPA?
To **protect media from government search and seizure** of materials related to public communication.
85
What does the PPA require **instead of search and seizure**?
Government must use **subpoenas or cooperation** to obtain materials tied to First Amendment activities.
86
What are **exceptions** to the PPA protections?
* Probable cause of a crime (excluding possession-only crimes) * Prevent harm * Risk of destruction if subpoenaed
87
What is **e-discovery**?
The process of **turning over electronically stored information** (ESI) during litigation.
88
What **standards guide e-discovery** practices?
* 2006 FRCP revisions * Sedona Conference best practices and email guidelines
89
When does HIPAA **allow PHI disclosure in discovery**?
* Individual authorization * Court order * Qualified protective order (QPO)
90
What does the **CLOUD Act** stand for?
Clarifying Lawful Overseas Use of Data
91
What **problem** does the CLOUD Act address?
Access to data stored on servers **located overseas**.
92
What does **Part I of the CLOUD Act** cover?
How the DOJ can **access data from U.S.-based companies** regardless of where the data is stored.
93
What **court case** led to the CLOUD Act's Part I clarification?
United States v. Microsoft (2018)
94
What does **Part II** of the CLOUD Act involve?
How foreign governments can **access data from U.S. providers** via executive agreements.
95
What **legal tools** were used before the CLOUD Act for foreign access to data?
Mutual Legal Assistance Treaties | (MLATs)
96
What is the **Budapest Convention** formally known as?
The Council of Europe Convention on Cybercrime (2004)
97
What are countries **required to do** under the Budapest Convention?
* Outlaw certain cybercrimes * Enact evidence-gathering rules * Cooperate in cross-border investigations
98
What is the goal of the **Second Additional Protocol to the Budapest Convention**?
To assist with **global access** to electronic evidence.
99
What does the Second Additional Protocol **allow law enforcement** to do?
Request subscriber and traffic data **directly from service providers** and expedite emergency requests.
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