Contributed by Dean Milliana, content coordinator interning with Ward Maedgen Accident Attorneys - Dallas.

Among the first lawsuits of its kind in the United States, a lawsuit was filed against John Oliver who called a program on the government run tv network PBS, entitled “Last Week Tonight” on the date of April 18, 2010. The complaint was filed by the American Civil Liberties Union, a public interest law firm. The program was entitled “Government Bullying” and included the following dialogue:

That is a scary fact: the common American is watched by six government agencies. Six. I want to make this flawlessly clear, if you watch the other day night`s show you can confirm this fact for yourself.

PB: I had been happy to do this. Oliver: You will not believe what I found when I viewed the call detail records of everyone who called this number, for the last week, or going back six weeks. (The segment continued for about fifteen seconds, and the caller hung up following the phone call was completed) Oliver: The next time you are tempted to assault a stranger in public, remember that this is the national government watching you, watching every move. PB: Thank you. Oliver: But of course, the part that really got people`s goat was the part where Oliver talked about the call detail records going back month. The ACLU`s complaint stated:

“Oliver took a clip of a month`s worth of phone records and displayed them on national tv as a means of making a spot about the government`s curiosity about the private lives of citizens. It would be unconstitutional for a private party to permit such disclosure patently, however the government does not have an identical interest. The Supreme Court has held that the Fourth Amendment protects people not the contents of their communications. In this respect, the ACLU was right. Nonetheless it was wrong in its use of the past tense. The federal government hasn`t “looked” at this information. It has obtained this information with a subpoena and the info in Oliver`s clip is lawfully on its files. Oliver`s clip was a form of fishing expedition. A fishing expedition is where private individuals enter somebody else`s property to check out information which might be used to embarrass, harm, or destroy the private individual. Oliver`s act isn`t only wrong; it is in bad taste and a bad taste act can cause you personal injury. Oliver needs to be reminded about the Fourth Amendment, not just the ACLU.”

The clip did spark an important debate on the use of past data in forensic examination, but was Oliver`s use of that “past data” legal? The ACLU and Oliver both claim that the clip was found in part to make a point about the need for people to reveal their data when they are subpoenaed. As as the Fourth Amendment can be involved far, there is no such requirement. Oliver`s clip merely demonstrated the reality that whenever a person answers a subpoena to make a piece of information, the government sometimes needs to get a search warrant to get any additional information, or to look at the whole data set. A search warrant would allow the government to examine someone`s data. Oliver did not obtain a warrant to examine a month`s worth of phone records.

In Oliver`s context, that is clearly a fact. But Oliver`s context is irrelevant to the relevant standard for finding a search warrant in a federal case. As discussed in greater detail within an earlier article, the main element question is whether the government used the “unidentified source” of Oliver`s data. Here, the government claimed that Oliver`s call detail records were an “unidentified source” of the FBI`s call detail records, and that Oliver`s use of a clip of those records was unprotected conduct. So, Oliver`s use of the clip was protected, and it did not help Oliver that he did not have the main element pieces of information he needed to corroborate his defense. Oliver had not reviewed the call detail records actually. He knew nothing about any subpoenas to produce the records.

However, Oliver`s use of the clip did donate to the government`s finding a search warrant to examine a month`s worth of phone records. Oliver`s use of a clip was therefore legal, and it did not hurt Oliver that he did not actually have the main element pieces of information he needed to corroborate his defense.

The key question is whether the government used the “unidentified source” of Oliver`s data. Here, the government claimed that Oliver`s call detail records were an “unidentified source” of the FBI`s call detail records, and that Oliver`s use of a clip of those records was unprotected conduct. Oliver`s use of a clip was therefore legal, and it did not hurt Oliver that he did not actually have the main element pieces of information he needed to corroborate his defense. Oliver had not actually reviewed the call detail records. He knew nothing about any subpoenas to produce the records.

As discussed within an earlier article, the government`s claim has ended his conduct of taking a look at a clip of phone records in a browser window. As other writers have argued, this argument may fail because the government does not need to prove that Oliver actually viewed the web page with the telephone records, only that Oliver viewed the web page. As much other writers have argued, Oliver is absolve to look at any website, including a link to a full page that will not include phone records, and which will not identify the info in question.

Oliver`s reliance on United States v. Pazant, where in fact the Supreme Court discovered that the use of a URL to conduct a search of an out-of-court conference call had not been protected expression, is misplaced. In that full case, the Court upheld an indictment for accessing a pc situated on a foreign government website, even though Pazant had entered the URL of the web site into his personal computer`s URL bar.

In contrast, in this full case, the government obtained an order for Oliver`s call detail records pursuant to a grand jury subpoena, which included specific instructions to recognize the source of the records that were sought. The Government, depending on United States v. Pazant, decided that Oliver`s conduct of taking a look at a URL within the browser`s address bar was insufficient for him to assert the defenses afforded by the Stored Communications Act. Because Oliver didn`t actually access or make a copy of the webpage, or save it for retrieval later, he cannot assert the defenses afforded by the Stored Communications Act.

The Court of Appeals, and the district court in this case, have rejected arguments that Oliver should be permitted to assert his state`s wiretap claim as a function of his use of a bookmark to aid him in accessing a foreign website. While it may be possible, with respect to the circumstances, that Oliver would have a claim against the government if he accessed the webpage, the claims asserted by the government weren`t founded on a use of a URL within the browser`s address bar.

Rather, the government argued that Oliver`s access of the URL is highly recommended a use of the Stored Communications Act. As the national government relied on that reasoning, the claim was denied and the wiretap case against Manning was permitted to stand.

I do not find it essential to address this aspect. The claim that Manning accessed a URL with the only real reason for accessing a foreign website had not been the type of access that entitled Manning to assert the defenses provided by the Stored Communications Act, but was a secondary use of the URL instead, and was thus not grounds for Manning to assert the defenses.

As the Stored Communications Act allows plaintiffs to assert defenses based on the circumstances of their usage of the webpage, an initial use defense is not needed. In fact, I believe that should be the standard. The primary purpose of the use of a URL is defined as “the one intended by the web site operator in directing users to the URL.” However, if the defendant initiates the use of the URL, then it will only be available to the defendant`s usage, not the intended use of the web site operator.

I disagree with the Court of Appeals` decision. It was wrong on both legal history and theory.
Initially, this seems such as a slam dunk case. The court`s reasoning appears to be that because Manning accessed the webpage because he was on a work computer and on work premises, he will need to have designed to access the webpage on behalf of his employer. And what do the known facts show? Manning accessed the page because he had an urgent need to get hold of someone. It could have even been because he had an urgent need to get hold of his wife. Therefore, he did not view the webpage for personal use, but viewed the webpage on behalf of his employer instead. Therefore, he violated the Stored Policy. This decision seems to support the court`s rationale. Again Then, this is the first time this decision has been handed down in an injury context. That is definitely at the mercy of a different interpretation than when it was handed down in the telecommunications context. For the reason that context, Stored Communications (later known as Cogent Communications) was trying to decide the issue of whether or not a supervisor could be liable for a subordinate`s access of the supervisor`s work computer.

In that case, Cogent argued that supervisors had a duty of care for the subordinates they employed, and because the supervisor`s usage of the task computer had not been for work related purposes, the supervisor cannot be liable. In that case, Cogent held the supervisor liable for the subordinate`s usage of the computer. But in this case, the court had a different position. The court ruled that Stored did not have the rights to terminate the access as it occurred. The access only became terminationable when Manning decided to send an email to a customer support agent, explaining his actions. The court relied on your choice in Newland v. United Airlines, Ltd. where in fact the court held that whenever a passenger was provided by an airline with a meal, ticket, boarding passes and the chance to use the airport`s terminal, and informed the passenger that they cannot be held accountable for any actions on the passenger`s behalf if the passenger did not do anything, the right was lost by the airline to terminate the meal, ticket, boarding passes, and terminal access when the passenger boarded the plane.

In Newland, the court discovered that when the airline gave the passenger a ticket for a flight to be used for business purposes, the passenger had made use of the airline`s facilities for work related purposes, and the airline retained the right to terminate access when the passenger operated the aircraft. When the airline terminated Manning`s usage of the computer, it had only given him the chance to access the computer for work related purposes. The court reasoned that, it was only the passenger`s act of actually accessing the web site that gave Stored the right to terminate Manning`s access. The court ruled that Stored had not sent Manning an email of “instructions” to access the computer.

The court discovered that the airline had sent Manning an email of “instructions” to access the computer and that Manning had accessed the computer via the airline`s Internet system, not via Stored`s system. The court determined that Stored had not been liable for Manning`s actions as it had not given the passenger instructions to access the machine. Manning`s usage of the machine was terminated when the aircraft reached cruising altitude and Manning became aware that he had been videotaped by the security camera.