CST Fourth Amendment & Privacy Laws 3 — Questions and Answers
Question 1: Under the one-party consent rule for recording conversations, surveillance may be conducted legally when:
- All parties to the conversation consent
- At least one party to the conversation consents (Correct answer)
- A court order is obtained in advance
- The recording is for law enforcement purposes only
Correct answer: At least one party to the conversation consents
Federal law and many states allow recording of a conversation when at least one party to that conversation has given consent.
Question 2: A CST is asked to install a covert audio recorder in a corporate conference room in California. Why does California law make this especially problematic?
- California prohibits audio recording in any commercial building
- California is an all-party (two-party) consent state for audio recording (Correct answer)
- California requires a licensed PI to operate any audio recorder
- California's privacy laws only apply to government actors
Correct answer: California is an all-party (two-party) consent state for audio recording
California Penal Code §632 requires all parties to a confidential communication to consent before it may be recorded.
Question 3: The Foreign Intelligence Surveillance Act (FISA) authorizes electronic surveillance targeting:
- Domestic criminal suspects with probable cause of a felony
- Foreign powers and their agents for intelligence purposes (Correct answer)
- Any person whose communications transit U.S. infrastructure
- Private companies suspected of espionage
Correct answer: Foreign powers and their agents for intelligence purposes
FISA establishes a separate legal framework for intelligence surveillance of foreign powers and their agents inside the United States.
Question 4: When law enforcement uses a sting ray (cell-site simulator) to locate a suspect's phone, which legal framework most directly applies?
- Title III wiretap statute because it intercepts content
- The Pen Register Act because it captures dialing/routing information (Correct answer)
- FISA because it mimics a foreign cell tower
- The SCA because data is stored by the device
Correct answer: The Pen Register Act because it captures dialing/routing information
Stingrays capture signaling/routing information rather than call content, placing them under the Pen Register Act's framework, though some courts now require warrants.
Question 5: In Carpenter v. United States (2018), the Supreme Court ruled that accessing historical cell-site location information (CSLI) requires:
- A subpoena certified as relevant to an investigation
- A warrant supported by probable cause (Correct answer)
- Consent from the cellular carrier only
- Notification to the target within 90 days
Correct answer: A warrant supported by probable cause
Carpenter held that the third-party doctrine does not apply to historical CSLI because it reveals a detailed chronicle of a person's movements and requires a warrant.
Question 6: An employer wants to monitor employee emails on a company-issued device using the company email server. Under the SCA, this is generally:
- Prohibited without a court order regardless of ownership
- Permissible because the employer is the service provider (Correct answer)
- Permissible only if employees sign a general employment agreement
- Prohibited unless the state has adopted a specific employer monitoring law
Correct answer: Permissible because the employer is the service provider
The SCA's provider exception allows a company operating its own email service to access communications stored on its systems without violating the Act.
Question 7: Which of the following best describes 'minimization' as required under Title III wiretap orders?
- Limiting the physical size of surveillance equipment installed
- Limiting interception of communications unrelated to the criminal investigation (Correct answer)
- Reducing the number of officers who may access surveillance data
- Restricting surveillance to the minimum number of days authorized
Correct answer: Limiting interception of communications unrelated to the criminal investigation
Minimization requires agents to limit the interception of innocent or unrelated communications to the extent practicable during a wiretap operation.
CST Fourth Amendment & Privacy Laws 3
Under the one-party consent rule for recording conversations, surveillance may be conducted legally when: