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STEPTOE JOHNSON LLP

Stewart A. Baker

Stewart A. Baker is a partner with the Washington, DC-based law firm of

Steptoe & Johnson LLP. His practice includes technology, international law
and trade, international arbitration, and appellate litigation.

Technology
Described by The Washington Post (November 20,1995) as "one of the
most techno-literate lawyers around," Stewart Baker's practice includes
issues relating to digital commerce, electronic surveillance, encryption,
privacy, national security, and export controls.
TEL: 202.429.6413
FAX: 202.429.3902
International Law and Trade
sbaker@steptoe.cpm Stewart Baker's practice includes issues relating to government regulation of
international trade in high-technology products, and advice and practice
1330 Connecticut Avenue, NW under the antidumping and countervailing duty laws of United States,
Washington, DC 20036 European Community, Canada and Australia. He also counsels clients on
issues involving foreign sovereign immunity, and compliance with the
AREAS OF PRACTICE Foreign Corrupt Practices Act.
Technology
International Trade International Arbitration
Appellate & Supreme Court Stewart Baker has handled the arbitration of claims exceeding a billion
dollars, is a member of national and international rosters of arbitrators, and
EDUCATION is the author of articles and a book on the United Nations Commission on
UCLA School of Law International Trade Law arbitration rules.
J.D., 1976
Alumni Award for Excellence (first in class) Appellate Litigation
Chief Articles Editor, UCLA Law Review In addition to having filed many Supreme Court and appellate briefs, Stewart
Baker founded the State and Local Legal Center, which represents state
Brown University and local governments before the Court; he is currently Chair of the Center's
A.B., 1970 Advisory Board. His writings on appellate and constitutional issues have
been cited in opinions of the Supreme Court of the United States. His brief
HONORS & DISTINCTIONS opposing the federal government in New York v. United States, 488 US
General Counsel, National Security Agency, 1041 (1992), was described by Solicitor General Walter Dellinger as "one of
1992-94 the most influential amicus briefs ever filed in the Supreme Court."

Deputy General Counsel, United States

Department of Education, 1979-81

Law Clerk to Justice John Paul Stevens, US

Supreme Court, 1977-78

Law Clerk to Honorable Frank M. Coffin, US

Court of Appeals, First Circuit, 1976-77

Law Clerk Extern to Honorable Shirley M.

Hufstedler, US Court of Appeals, Ninth Circuit,
1975

Member, President's Export Council

Subcommittee on Export Administration
(2003)

http://www.steptoe.com/dspBioPrintable.cfin?id=00075&BioId=23 10/14/03
BY STEWART A. BAKER
Partner, Steptoe & Johnson, LLP

The attacks of September 11 have raised again the question of what information our governrjaent
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should be able to gather about individuals as it fights terrorism. This paper examines current legal
rules on government access to information held by third parties like telephone companies, Internet
service providers ("ISPs"), and credit card companies.

The way lawyers and judges think about privacy has been conclusively shaped by the Fourth
Amendment to the U.S. Constitution. That amendment guarantees the privacy of citizens by con-
firming their right to be "secure in their persons, houses, papers, and effects against: unreasonable
searches." This right is protected by requiring that searches be approved in advance by independ-
ent judges who issue search warrants on the basis of sworn statements stating the "probable cause"
tor the search.

As new technologies emerged—and offered new sources of information about citizens—privacy

advocates sought to squeeze law enforcement access to the new information into this standard
"search" model. After decades of uncertainty, for example, in 1967, wiretapping a phone call was
declared to be a search requiring prior judicial approval and probable cause.' Congress then rati-
fied and elaborated on the process for obtaining a wiretap order in Title III of the Omnibus Crime
Control and Safe Streets Act of 1968.:

The effort to shoehorn new technologies into the "search" framework had its limits, however. One
problem for privacy advocates was that the Fourth Amendment's privacy protection is personal—
limited to the person who controls the "houses, papers, and effects." If police call on a suspect and
want to search his house, they need a warrant. But if they call on his mother and want to search a
suitcase he left with her, they can do so with her consent, not her son's. Similarly, if they call on his
employer and want to search his work desk, they only need the employer's permission. What is
more, even if the employer refuses to cooperate, a simple subpoena, not a search warrant, is usual-
ly sufficient to give the government access to things or information in the hands of a third party.

Privacy advocates have been reluctant to allow the government unregulated access to such data, and
they have persuaded Congress to impose a series of slightly haphazard limits o_nj4overiiment access
to third-party records. As laid out in this paper, Congress has imposed special limits on govern-
ment's access to electronic communications data, to financial records, to cable and video records,
and to educational records. Most of these enactments are derived from the "search" model and offer
some kind of watered-down Fourth Amendment protection. That is, the government is allowed
access to information in a third party's hands if the government can obtain some kind of legal
process (<•'.#„ a subpoena or court order) based on some kind of predicate set of tacts (e.g., the data
is "relevant to an ongoing investigation.")