CSP Legal & Ethical Surveillance Practices 3 — Questions and Answers
Question 1: A court order authorizing a pen register allows law enforcement to collect:
- Content of telephone conversations
- Dialing, routing, addressing, and signaling information only (Correct answer)
- Text message content
- Email body content
Correct answer: Dialing, routing, addressing, and signaling information only
A pen register captures only metadata such as numbers dialed and call duration, not the actual content of communications.
Question 2: Which constitutional amendment is MOST directly implicated when government surveillance collects location data from a suspect's vehicle without a warrant?
- First Amendment
- Fourth Amendment (Correct answer)
- Fifth Amendment
- Sixth Amendment
Correct answer: Fourth Amendment
The Fourth Amendment protects against unreasonable searches and seizures, and the Supreme Court in Carpenter v. United States extended this to digital location tracking.
Question 3: In the context of corporate investigations, attorney-client privilege over surveillance findings is MOST likely preserved when:
- The surveillance report is shared with HR before the attorney reviews it
- The investigation is directed by legal counsel in anticipation of litigation (Correct answer)
- The investigator has a law degree
- The findings are marked 'confidential'
Correct answer: The investigation is directed by legal counsel in anticipation of litigation
Attorney-client privilege and work product protection apply when investigations are conducted at an attorney's direction in anticipation of litigation.
Question 4: Ethical surveillance guidelines generally require that surveillance objectives be:
- Kept secret from all stakeholders to maintain operational security
- Proportionate to the threat or investigative need being addressed (Correct answer)
- Approved by a majority vote of affected employees
- Unlimited in duration once legally authorized
Correct answer: Proportionate to the threat or investigative need being addressed
Proportionality is a core ethical principle requiring that the intrusiveness of surveillance be balanced against the legitimate need it serves.
Question 5: The 'third-party doctrine' as applied to surveillance law means:
- Surveillance evidence requires three independent witnesses to be admissible
- Information voluntarily shared with third parties loses Fourth Amendment protection (Correct answer)
- Three government agencies must approve major surveillance operations
- Third-party vendors cannot store surveillance footage
Correct answer: Information voluntarily shared with third parties loses Fourth Amendment protection
Under the third-party doctrine, information shared with banks, phone companies, or other third parties is not protected by the Fourth Amendment because the person assumed the risk of disclosure.
Question 6: A surveillance professional is ethically obligated to disclose which of the following to a client before beginning an investigation?
- The identities of all surveillance personnel who will be used
- Any conflicts of interest that could affect objectivity or outcomes (Correct answer)
- Specific surveillance techniques that will be employed
- The exact daily schedule for surveillance activities
Correct answer: Any conflicts of interest that could affect objectivity or outcomes
Conflicts of interest must be disclosed before engagement to allow the client to make an informed decision about whether to proceed with that investigator.
Question 7: Under the Stored Communications Act (SCA), a government entity generally needs what to compel disclosure of stored email content older than 180 days from a service provider?
- A subpoena only
- A court order under 18 U.S.C. § 2703(d)
- A search warrant based on probable cause (Correct answer)
- Written consent from the account holder
Correct answer: A search warrant based on probable cause
Following the Sixth Circuit ruling in United States v. Warshak and subsequent DOJ policy, a search warrant is required for stored email content regardless of age.
CSP Legal & Ethical Surveillance Practices 3
A court order authorizing a pen register allows law enforcement to collect: