The pandemic has brought many changes to the practice of law, but perhaps the biggest is the ubiquity of video calls to replace meetings and regular phone calls. There are definite upsides: less travel and lower bills to clients as a result, more face-to-face(ish) contact, and the ability to share and view documents during a conversation.
Sitting on a video call the other day, though, I started thinking about whether and how the government would turn its investigative techniques to this new form of communication. Imagine a juror during a trial getting not only to hear the recording of phone call among the defendants who are planning a crime but to watch a recording of a video call. That would be powerful evidence.
Apart from a video call itself, there is other data associated with these communications: the date/time of a call, who participated and the associated IP addresses that may reveal physical locations, a chat or messaging function that could contain communications, whiteboarding during a call, saved files, call transcripts and so forth.
The government can use the existence of a call among certain people at a certain time as evidence of a crime—insider trading and price-fixing cases are investigated this way all the time.
All in all, video calls present a possible treasure trove of information for the government. So, what data and information can the government obtain? And what would could the government try to obtain?
It seems to me that there are three possibilities here:
- The government obtains a wiretap that allows for agent to secretly watch and record a “live stream” of video calls (very unlikely under current law and possibly technologically impossible)
- The government obtains a subpoena to obtain video recordings saved by Zoom/Microsoft/Cisco (possible)
- The government obtains a subpoena/search warrant for Zoom/Microsoft/Cisco for information about the dates and times of, and participants in, video calls (very possible).
The Wiretap Statute – Listening to Live Calls
The Wiretap Act or Title III (more formally, “Title III of the Omnibus Crime Control and Safe Streets Act of 1968”) prohibits private citizens and the government from intercepting “wire, oral, or electronic communications” without consent. Basically, this is the statute that prevents the government from listening to everything you say.
Of course, there is an important exception: the government can follow specific procedures to obtain a warrant to authorize a wiretap.
These statutes are codified, inter alia, at 18 U.S.C. § 2510, et seq.
The statute defines “wire communication” very broadly:
“Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce.
The key word phrase is “aural transfer.” It seems like that would mean no video, right? Only what you can hear? Eh, not so fast. “Aural transfer” is defined as “a transfer containing the human voice at any point between and including the point of origin and the point of reception.” A transmission of a video call would “contain” the “human voice”; it would also contain images and so forth.
There is a complex set of provisions allowing for a wiretap, but basically, it allows the government to apply (secretly) to a judge to “authorize or approve interception of wire, oral, or electronic communications” if “the judge determines on the basis of the facts submitted by the applicant that . . . (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter.”
Section 2516 includes a range of crimes, including white collar crimes like: wire fraud, bank fraud, money laundering, bribery, and obstruction of justice.
As far as I can tell, nothing in the statute refers to video at all. It’s all focused on oral communications. But, tellingly, nothing in the statute prohibits obtaining video recordings this way. It’s an open question.
Electronic Communications Privacy Act – Obtaining Info about Past Calls
I’ve written about the EPCA before in the context of the government’s ability to obtain emails. The EPCA allows requests for information to the “providers of electronic communications service,” so this would certainly include Zoom and the others.
If the government wanted to get information about your Zoom calls, such as when calls occurred, how long they lasted, who was on the call, perhaps even the IP address from which each participant dialed into the video call—this is the governing statutory scheme. It is far easier for the government to get information through a § 2703 request than wiretap authorization under Title III.
Does Video Change Things?
I don’t know enough about the technology of video calls to know whether it is possible for the government obtain a type of wiretap that would allow it to watch and record a “live stream” of a video call through a wiretap without the people on the call knowing what is happening. On a typical Zoom or Teams call, of course, you can see who is participating. Presumably if a little black box showed up that said, “FBI Agent Smith,” you’d probably end the call.
So, let’s assume it is possible to record a live call, does that create any other legal issues?
I think it does. In a video call, the other participants can see your location, what you look like, other people in the room, and other objects in the room. These are all things that recording a telephone call would never reveal. They are only things that would be revealed if the government were actually inside your house or office—secretly watching you.
Title III doesn’t authorize anything close to a secret camera in someone’s house to watch them while they are on a call. And the Fourth Amendment would seem to prevent that too. Law enforcement can watch and record you in public and in areas that are visible from public areas (there are cases about cameras on utility poles outside of someone’s house, for example). A camera outside your house, however, is very different from having a camera recording you during what you think is a private call from your house or office.
What Would Zoom, Cisco (WebEx), and Microsoft (Teams) Do If They Receive a Subpoena?
Let’s start with the basics: You should not record video calls unless there is some regulatory requirement to do so, such as a public utility meeting. The problem with recording calls is that then the company who conducted the recording—Zoom or Cisco or Microsoft—has a copy of that call stored on its servers. That means that if the government issued a subpoena for those recordings, Zoom would likely produce them to the government.
These types of companies do have policies about how they will respond to a government request. Keep in mind that companies generally want to cooperate with the government and have very little interest in pushing back on the government.
Here are the highlights of the Zoom policy (published here):
Zoom differentiates between “content” and “non-content data”:
- Non-content data includes basic subscriber information, such as an email address, name, state, country, postal code, and IP address information; “IP connection history, and credit card or other billing information.”
- Content data is described as follows: “Zoom’s users create, communicate and choose to store on or through Zoom services, which can include cloud recordings, transcripts, chat and instant messages, files, whiteboards, and voicemails for Zoom Phone users.”
Zoom will produce non-content data if it receives a valid subpoena under 18 U.S.C. § 2703.
Zoom will produce content data only if it receives a search warrant and “upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, videos, timeline posts, and location information.”
As a general matter, Zoom will disclose requests to the user, so you will hear about the government’s request and have time to challenge it: “Our policy is to notify users of requests for their information, which includes a copy of the request unless we are legally prohibited from informing the user (e.g., an order under 18 U.S.C. § 2705).”
Zoom also says that non-disclosure requests by the government should have a “specific duration” and a description of the “”exigent circumstances or potential adverse result of notice.” The policy says that it “will reject requests, and provide reasons for the rejection. If necessary, we will also challenge requests in court.”
This is not a bad policy but I wonder how often Zoom has actually rejected a government requests for non-disclosure. (I can’t find any news stories where Zoom as done so.) You should expect that these types of companies will give the government information about your video calls if they receive a subpoena. It’s much easier to cooperate than to protect your customer’s data, unfortunately.
At some point, some technologically savvy and aggressive law enforcement agent will push the envelope and try to obtain access to live video calls. Then we’ll see how that investigative technique plays out in court.