FALL 2010
Course No.: 9200-710 (& 810)-001
Course ID:  85723 & 85725
Time: M, W 4:45-6:15 p.m.
Room TBD
Professor Jay Dratler, Jr.
Across from Room 231D (IP Alcove)
Home: 330-835-4537
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2010  Jay Dratler, Jr.  
For permission, see CMI.

Problems on Electronic Communications Privacy Act

1.  Paul, a gay man who lives in a small town in Northeastern Ohio, is infected with HIV.  He is taking drugs to suppress the virus, and the treatment appears to be successful.  Paul is apparently healthy and leading a normal life.

Paul works for the local public library and has good medical insurance provided by his employer.  No one knows about his infection or his sexual orientation except his closest friends.
    (a)  Deborah is a co-worker of Paul's at the local public library.  One day, while she is visiting Paul's home for lunch, Paul excuses himself to take a telephone call.  While Paul is on the telephone in another room, Deborah picks up an extension telephone in the dining room.  She overhears a conversation in which Paul is discussing his sexual orientation and his infection with a friend.  Paul does not know that Deborah has overheard the conversation.
    The next day, Deborah tells her boss at the library, Delia, about Paul's conversation that she overheard.  Delia, who is married to the head of the small town's HMO, tells him.  As a result of these disclosures, Paul loses his job at the library and his health insurance.
    Analyze the criminal and civil liability of Deborah, Delia, the library, and the HMO.  Does the telephone company have any potential liability?
    (b)  Same facts as in part (a), except that Deborah is also Paul's neighbor.  She uses a short-wave "scanner," which she lawfully purchased at Radio Shack in 1990, to overhear her neighbors' cordless telephone conversations.  The scanner can pick up the radio transmissions from the "base units" of cordless telephones to the handsets.  Instead of listening on Paul's extension telephone, Deborah learns about Paul's sexual orientation and infection by using her scanner, one evening, to eavesdrop on a telephone conversation between Paul and a friend on Paul's cordless telephone.

2.  Duncan is a long-time computer nerd and a dedicated computer "hacker."  He works for Netwide Corp., a local Internet service provider (ISP), during the day and surfs the Web at night.

Duncan has developed a high-speed program to "crack" computer security systems.  His program uses random-number generators, intelligent algorithms, and intuitive "guesswork" to find passwords that will give him access to almost any computer system.

Late one night, while working on one of Netwide Corp.'s computers on its premises, Duncan "cracks" the computer security for a vital Internet "router" run by an independent firm, Web, Inc.  (A router is a high-speed switch that routes Internet and World Wide Web communications on their way, sometimes by "caching" them, or storing them locally, for short times during periods of high traffic.)  Duncan gains access by using his program to generate a password that works, i.e., someone else's password properly authorized by Web's computer system.

After gaining access to Web's computers, Duncan finds on Web's computers a series of "cached" e-mail messages between Compnet, Inc. and its customers.  Compnet is one of Netwide's principal competitors in the local ISP market.

Most of the messages are communications relating to the establishment of new customer accounts with Compnet. Duncan downloads the e-mail messages to his computer at Netwide.  Although he does not specifically try to erase the messages from Web's router, Duncan's downloading process accidentally has that effect.  As a result, none of the messages ever reaches its intended destination.

Consequently, over 100 customers who had tried to sign up for Compnet service were unable to do so.  Duncan, however, sends them all return e-mail messages touting Netwide's services, and most of them signed up with Netwide instead.

None of Netwide's managers know of these activities of Duncan, including his nocturnal use of Netwide's computers or his hacking activities in general.  Netwide, Web, and Compnet are separate and independent firms, with no overlaps in ownership or management.

Analyze Duncan's and Netwide's criminal and civil liability under the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act.  What different would it make, if any, if the router from which Duncan had downloaded the e-mail messages were owned and operated by Compnet's bank, Noreast Financial Corp., rather than by Web, Inc., an Internet hub provider?

3.  You are the District Attorney for Summit County.  You have just received a rather frantic telephone call from Pauline, the investigative head of the Terrorism and Organized Crime Task Force for the State of Ohio.

Pauline tells of a current threat to blow up the E.J. Thomas Hall during a popular concert.  A credible informant, she says, has revealed a sophisticated plot by a shadowy terrorist group to plant and explode a car bomb outside the main entrance at 8:15 p.m. this Friday, just after the concert starts.  According to her informant the bomb is designed to injure or kill a maximum number of people.

The informant believes that 30 people, most of them foreigners, are involved in the plot.  However, the informant was able to identify only one, who Pauline believes is the ringleader.  The informant was able to provide a name (which may be fake), a car license plate, and the cell phone number of a car phone allegedly used by the ringleader.  The informant believes that the ringleader uses the cell phone, speaking in an obscure foreign language, to contact co-conspirators while traveling in Ohio, Pennsylvania, Indiana and Northern Kentucky.

It is now Wednesday afternoon, and, if the informant is right, the bomb will go off Friday evening.  The best and quickest way to investigate the suspected plot is to eavesdrop on the cell phone line that the informant has identified.  There is no time to involve federal authorities.

What steps do you take, as "chief prosecutor on the spot," to begin the investigation, try to stop the plot, and, at the same time, maximize the chances of successfully prosecuting all those eventually implicated?  How successful do you expect those steps to be (legally), and under what circumstances?

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