Monday, December 30, 2019

University of Florida Levin College of Law 


The Specter of Warrantless Governmental Intrusion Is a Phantom that Has Achieved Greater Life in the Ether of Internet Communications 

Featured Article 
Vania Mia Chaker*

* A.B., Stanford University; M.B.A., Columbia Business School; M.B.A., University of California, Berkeley Haas School of Business; J.D., University of California, Berkeley School of Law.


The privacy rights[2] of American citizens have been eroding with metronomic regularity given the sharp rise in the government’s reliance on surreptitious electronic surveillance, warrantless digital searches, and deliberately engineered cybersecurity vulnerabilities,[3] all of which have occurred with the sort of ubiquity that few could ever have previously imagined. The dangers of unfettered government searches and seizures are pervasive and grave. A world without a strong footing in the democratic principles and ideals of the Enlightenment upon which our country was founded would be a dark world indeed. 

This Article analyzes the constitutionality of the United States government’s use of emerging technology to conduct warrantless searches of private citizens and companies, including their digital transmissions and stored electronic data. The analysis begins with an examination of the legal background of the Fourth Amendment, focusing on Katz v. United States[4] and its progeny, including a review of the most recent U.S. Supreme Court cases in the area of privacy and the Fourth Amendment: Carpenter v. United States,[5] Riley v. California,[6] and United States v. Jones.[7] While evaluating the government’s actions with respect to warrantless searches and surveillance in the post-Katz era, this Article turns to specific examples of surreptitious governmental monitoring programs that likely run awry of the rule of law and the United States Constitution.

This Article then considers the greater normative and policy implications of the government’s arguably extralegal conduct, including the potential for the derision of democratic values and ideals that may, in turn, result in the weakening of our country’s political framework and cybersecurity infrastructure. Sacrificing the ideals of our democracy in order to ostensibly protect it may instead serve to lead us down a road of dangerous folly. Such constitutional erosion could steer the United States toward a dangerously precipitous decline. For the greater good, it may be wise if the government were to carefully heed the maxims “respice finem” and “obsta principiis[8] before it strays from its fundamental democratic mandates.


I am deeply grateful to all of the gracious and esteemed individuals who have assisted me with this project, but especially long-time mentors, Dean Emeritus Jesse Choper, the Honorable Tom Campbell, and the Honorable Christopher Cox. Without their invaluable assistance and interest in my work, this Article would never have reached fruition.

I owe a profound debt of gratitude to all of my beloved mentors, my esteemed advisors in academia and law, and my inspiring Stanford professors, including the Honorable Edwin Meese III, the Honorable Christopher Cox, the Honorable Tom Campbell, the Honorable Lane Evans, the Honorable Rudi M. Brewster, the Honorable Mitchel R. Goldberg, the Honorable Dick Thornburgh, the Honorable Robert W. Naylor, Professor Lawrence M. Friedman, all of the distinguished Senior Fellows at the Hoover Institution who I was extremely privileged to have worked with and known, and my esteemed preparatory school advisor, Ralph N. Schmidt.

A special, heartfelt thank you goes to Jonathan A. Sebastiani, Donald L. Lucas, Sr., and Kimberly R. Hauser.

I also thank Ryan G. Baker, Matthew M. Mahoney, Phil Burkhardt, Jaime Marquart, Charles L. Deem, and William V. Whelan, all exceptionally-talented and stellar attorneys, for their steadfast and loyal support, as well as Rebekah M. Allison, Editor in Chief, for her wonderful and tireless assistance on this project.

I am extremely fortunate and grateful to have had the encouragement and support of all of these fine individuals, as well as others, during my career. 


Saturday, March 3, 2018

Warrantless Governmental Surveillance through the Use of Emerging Technology Has Become a Mainstay of Governmental Investigation ... By Vania M. Chaker, Esq.

Warrantless Governmental Surveillance through the Use of Emerging Technology Has Become a Mainstay of Governmental Investigation
By Vania M. Chaker, Esq.
            The United States government enjoys awesome technological capabilities.[1]  It can facilely monitor electronic communications and surreptitiously retrieve stored information on private computer systems.  Technology that was once the stuff of science fiction is now routinely used in real life to monitor the activities of citizens, corporations, even foreign nationals in foreign nations.[2]  Telephone conversations, text messages, electronic transmissions, and even corporate network traffic have been subject to surreptitious warrantless government surveillance by executive order under the mandate of heightened national security concerns in the “Post-9/11 Era.”[3]  Moreover, in addition to the fully-stocked arsenal of highly-advanced equipment and sophisticated technology the government enjoys, it can also rely upon lofty justifications such as “national security” and “the public good” to persuade or issue seemingly-reasonable directives to large private companies, such as the behemoth firms of AT&T, Verizon, and Bell South, to assist the government with warrantless investigations of private citizens and entities.[4] 
           The Federal Bureau of Investigation (“FBI”) routinely uses computer programs such as Magic Lantern,[5] a secretly-installed key logger software, to spy on every keystroke made on a target’s computer – even if the communications occur inside the sanctity of one’s home.[6]  Another highly intrusive FBI software program, the Computer and Internet Protocol Address Verifier (“CIPAV”),[7] is a data gathering software program that can track every email sent, every internet site visited, every software application installed by an individual or private company.  It can also track the location of a computer through its IP address.  Other government programs about which the public has extremely limited information include ESCHELON,  “Cyber Knight,” and Carnivore,[8],[9] and other FBI-developed software programs used to monitor electronic communications. 
           The government uses additional surreptitious data collection techniques and devices to warrantlessly investigate targets.  The government may also, for example, remotely install a “Trojan Horse” virus, “rootkit” virus, or other sorts of spyware onto a target’s computer system.  Doing so could allow an outsider to control an individual’s computer system remotely, monitor computer usage and transmissions, and remotely control a computer camera to spy on private activities.[10]  Other United States agencies, such as the National Security Agency, [11] continue to develop additional tools with which to monitor citizens and private companies,[12] such as cookies,[13] web bugs,[14] surreptitiously-installed spyware,[15] and Radio Frequency Identification (“RFID”) tags.[16]  
Unfortunately, such powerful governmental capabilities have not been tempered by the countervailing protective judicial or legislative safeguards necessary to offset the greatly increased potential for improper government intrusiveness. 
By Vania M. Chaker, Esq.

[1] For example, the “Warrantless Surveillance Controversy” by the U.S. National Security Agency (“NSA”) involved the surveillance of individuals on domestic soil and only incident to Post-9/11 foreign intelligence investigations by the NSA.  This directive, termed the “Terrorist Surveillance Program” by the George W. Bush administration, was a component of the broader “President's Surveillance Program” which the NSA is authorized by executive order to monitor the communications of private citizens and companies without a warrant.  Phone calls, e-mails, internet activity, text messaging, and other communications involving one party that the NSA may believe to be outside the United States were subject to warrantless government surveillance even if the other party was located on domestic soil.  Widespread claims, however, indicate that such warrantless surveillance was conducted with respect to purely domestic communications.  Due to the highly sensitive nature of the program, its exact scope is not known, but it is reported that the NSA had broad, unsupervised access to all fiber-optic communications of many of the major telecommunication companies’ communications and telephony traffic. 
[2]    The National Security Agency (“NSA”) is charged with spying on and investigating foreign communications as part of its governmental directive. 
[3]   It has also been reported that such programs operated without the judicial oversight that was mandated by Foreign Intelligence Surveillance Act (“FISA”).
[4]    The case of Hepting v. AT&T (06-CV-01791-VRW) (2006) uncovered the widespread assistance of several large telecommunications companies (in addition to AT&T) which were illegally collaborating with the National Security Agency to unlawfully spy on private citizens and companies.  These companies were unlawfully monitoring the communications of the United States, including AT&T customers, businesses and third parties whose communications were routed through AT&T's network, as well as Voice over IP telephone calls routed via the internet.  Unfortunately, much of the details could not be learned since the government resisted efforts to learn about the scope of the operation and since discovery could not be completed because District Court Judge Vaughn Walker dismissed the case in 2006 after the government provided retroactive immunity for any telecommunications companies illegally assisting the government thereby rendering the lawsuit moot. 
[5]    Magic Lantern, a key logger software program developed by the Federal Bureau of Investigation, was first reported to be in existence on November 21, 2001. 
[6]    The FBI's use of key logging software is discussed in the case of United States v. Scarfo, 180 F.Supp.2d 572 (D.N.J. 2001).  See infra. 
[7]  “Computer spy programs such as “CIPAV,” a software data gathering tool that the Federal Bureau of Investigation uses to track and gather location data on suspects who are under electronic surveillance.  CIPAV captures location-related information of a computer, such as its IP address, MAC address, the programs which have been downloaded onto the computer, programs which are running on the program, the type of operating system, the installed application registration and version information, the default web browser, the URL of the last visited website.  CIPAV silently monitors all outbound communication, logs every IP address to which the computer connects, and time stamps each internet encounter from that computer.”  Wikipedia CIPAV page – 
[8]    See
[10]   See, e.g., Selena Larson, 2017 Year in Review: The Hacks that Left Us Exposed in 2017, CNN Tech (December 20, 2017: 9:11 AM ET), 
[11]   For example, the National Security Agency routinely eavesdrops on all conversations, which was the tactic used to locate Osama Bin Laden.  A NOVA documentary examined the high-tech eavesdropping carried out by the NSA. See “The Spy Factory – Examine the. Aired February 3, 2009 on PBS.”
[12]   Other programs also existed such as “COINTELPRO” (an acronym for Counter Intelligence Program) which was reported to have been a series of covert measures instituted by the FBI focused at investigating citizens and organizations within the United States during the Nixon administration. 
[13]   A cookie has been defined as: “cookie (also tracking cookie, browser cookie, and HTTP cookie) is a small piece of text stored on a user's computer by a web browser. A cookie consists of one or more name-value pairs containing bits of information such as user preferences, shopping cart contents, the identifier for a server-based session, or other data used by websites.”  See also “magic cookie.” 
[14]   Web bug has been defined as “an object that is embedded in a web page or e-mail and is usually invisible to the user but allows checking that a user has viewed the page or e-mail. One common use is in e-mail tracking. Alternative names are Web beacon, tracking bug, tracking pixel, pixel tag, 1×1 gif, and clear gif.”
[15]   Spyware has been defined and discussed as follows: “as a type of malware that is installed on computers and collects information about users without their knowledge. The presence of spyware is typically hidden from the user. Typically, spyware is secretly installed on the user's personal computer. Sometimes, however, spywares such as key loggers are installed by the owner of a shared, corporate, or public computer on purpose in order to secretly monitor other users.  While the term spyware suggests software that secretly monitors the user's computing, the functions of spyware extend well beyond simple monitoring. Spyware programs can collect various types of personal information, such as Internet surfing habits and sites that have been visited, but can also interfere with user control of the computer in other ways, such as installing additional software and redirecting Web browser activity.”
[16]   Radio-frequency identification (RFID) has been defined as “the use of an object (typically referred to as an RFID tag) applied to or incorporated into a product, animal, or person for the purpose of identification and tracking using radio waves. Some tags can be read from several meters away and beyond the line of sight of the reader.”