This is, thus, not a "model" outline. It's not finished. There are things in it that I would have done differently had it been mine. But it illustrates a sufficient number of features of a good outline that I thought worth sharing for these purposes.

Some may seem obvious and trivial. But just as "common sense" is not all that common, so the obvious is not always obvious in student work. As Woody Allen once said, "90 percent of success in life is just showing up." Similarly with outlines; so few people follow directions that doing so gives you a big comparative advantage over the competition.

1. This outline starts with the student's name, course, and date. It has a title. (It also numbers the pages in the hard copy version.) It uses the standard outline form (i.e., Roman numerals, then capital letters, then Arabic numbers, then small letters). All obvious? Sure. But you'd be surprised how often such obvious things are overlooked.

2. An outline -- the thinking of the author -- needs to envision a focus, a purpose. Sometimes it's possible to capture that in the title. It may be in something called an "executive summary" or "scope note." It may be called a "topic" or "thesis." The focus may be on an hypothesis the author tests in the paper and finds to be valid, or not. It may be an argument for a particular position, or outcome: that a statute is unconstitutional, or that the legislature needs to enact the proposed legislation. What it is called is not as important as that it is clearly understood and succinctly stated by the author.

This outline provides that single focus, or purpose. It happens to be called "thesis," but as explained above the name and form is not crucial. Read even just the first sentence of this outline's thesis statement. There may be some statutory references and terms that have not yet been defined, but it's very clear the author proposes to argue the unconstitutionality of a statutory provision having to do with surveillance.

Once the purpose is clear the time, effort and stress of putting together first the outline, and then the paper, is radically less than if the writing is begun before there is a purpose in mind.

3. Ideally, the outline should be sufficiently thorough that most of the research, organization and analysis have been done. This outline is a good illustration of that principle as well. Length is not a virtue, per se, but it is unlikely that a 20-page paper can be adequately researched, organized, and presented in a two-page outline. The author of the outline below clearly has a major chunk of the first final draft completed already before he's even written a word of it.

Enough of the introduction. Here's the outline:

Thesis:  § 216 of the USA Patriot Act, which expands the definition of “pen register” and “trap and trace device,” is arguably unconstitutional on its face and should be found unconstitutional when applied to a typical surveillance case today.  Smith v. Maryland made clear that pen register data gathering did not constitute a search for Fourth Amendment purposes.  However, the expanded application of this doctrine through the enactment of the Patriot Act, together with the greater potential for abuse present in systems being deployed under the Act, constitute an encroachment of privacy that the Fourth Amendment should protect.

I. Summary of Content, Structure, and Scope of Paper

A. Overview of pen registers and the Internet
B. Overview of prior pen register legislation
C. Overview of Fourth Amendment and Constitutional authority for warrantless surveillance of pen register information
D. Overview of USA Patriot Act
E. Overview of Recommendations and Conclusion
F. Overview of structure of paper

A. What is a pen register?

1. Pre-Patriot Act: a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached.  18 U.S.C. §3127(3)(1994).
2. Patriot Act: a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted. 18 U.S.C. §3127(3)(2001).

B. What is a trap and trace device?

1. Pre-Patriot Act: a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.  18 U.S.C. §3127(4)(1994).
2. Patriot Act: a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication. 18 U.S.C. §3127(4)(2001).

C. The Internet

1. Structure

a) What computer users around the world identify as the "Internet" evolved from the United States Department of Defense's information sharing system called the Advanced Research Project Agency Network (ARPANET).  The modern Internet, much like the original ARPANET, is "a network of computers that are connected so they can exchange information amongst each other."

2. Usage

a) Today's computer users rely on the Internet to facilitate different forms of communication and information exchange including e-mail,  web browsing, and file transfer activity.

3. Protocols and packets

a) For an exchange of information between two computers, one computer, the "client," requests information from another computer, the "server." This communication process is facilitated by the Transmission Control Protocol (TCP) and the Internet Protocol (IP), collectively the TCP/IP.  When the server receives a request for a file from the client, it "locates the file on its computer and breaks the file into tiny pieces ... [and wraps these pieces] in a bundle of instructions that tells [them] where to go ... called 'packets.'"   The TCP assigns a sequence number ... so it can track what it has sent and eliminate the need to duplicate sending the same packet twice unless the packet is lost somewhere along the line to the client. The "packet header," contains the sequence numbers that also tells the client the next sequence number to expect after each packet, so the client can start arranging the packets and conduct a rolling inventory.  The Internet Protocol "routes the packets across the Internet," between the server and client, and does so using "many other servers to reach its final destination."  The IP assigns a numerical address to every packet before they are sent, "hoping the packet arrives where it is supposed to go. If the server does not receive a response that the packet was received [by the client], the IP can send an error message to the client ... letting the client know that the packet did not get there."  This process continues until the server receives a response from the client for every packet that the server has sent. While this may seem time consuming, the process actually takes only a very small fraction of a second and is virtually seamless to the user.  76 Notre Dame L. Rev. 1215, 1220.

D. The problem of the pen register concept in the Internet context

1. There are many questions posed by application of the pen register/trap and trace statute to the Internet. The statute certainly applies to email and the Web, for it refers to electronic communications. But what does “dialing, routing, addressing, or signaling” information include?  Amending the Pen Register and Trap and Trace Statute in Response to Recent Internet Denial of Service Attacks and to Establish Meaningful Privacy Protections, Center for Democracy and Technology, available at http://www.cdt.org/security/000404amending.shtml
2. E-mail addresses are more personally revealing than phone numbers because email addresses are unique to individual users. So while a pen register on a phone line only shows the general number called, a pen register served on an ISP will likely identify the specific recipient of each message. Id.
3. If the pen register authority applies to URLs or the names of files transmitted under a file transfer protocol, then the addressing information can actually convey the substance or purport of a communication. Id.

A. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Act)

1. The Wiretap Act was enacted in 1968 in response to U.S. Supreme Court decisions holding that law enforcement wiretapping of the content of telephone communications requires a judicial finding of probable cause, and must be limited in scope and duration.  See Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. III, 82 Stat. 212 (codified as amended at 18 U.S.C.§§ 2510-22).  The Wiretap Act authorized federal authorities to apply for wiretap orders under limited circumstances.  For example, wiretap orders could be sought only for investigations of certain serious crimes and only when other investigative techniques had failed, and authorities were required to minimize access to nonincriminating conversations.  See 18 U.S.C.   § 2518.  The Wiretap Act also included provisions requiring yearly reports to Congress on the number of wiretap orders applied for and issued.  Id.  § 2519.

B. Foreign Intelligence Surveillance Act (FISA) (1978)

1. The Foreign Intelligence Surveillance Act (FISA) supplemented the Wiretap Act.  See Pub. L. No. 95-511, tit. I, 101, 92 Stat. 1783 (codified at 50 U.S.C. §§1801-11).  FISA authorizes the issuance of secret wiretap orders in national security cases upon a judicial finding of probable cause to believe that the subject of the order is a foreign power or an agent of a foreign power.

C. Electronic Communications Privacy Act (ECPA) (1986)

1. In 1986, Congress sought to address changes in communications technology by enacting the Electronic Communications Privacy Act (ECPA).  See Pub. L. No. 99-508, 100 Stat. 1848 (1986).  The ECPA amended certain provisions of the Wiretap Act to cover wireless voice communications and nonvoice electronic communications; it also added new provisions intended to protect the privacy of wireless and e-mail communications from law enforcement and private scrutiny.
2. The ECPA also added provisions intended to constrain law enforcement use of pen register and trap-and-trace devices that record incoming and outgoing telephone numbers.  Pub. L. No. 99-508, 100 Stat. 1868 (1986) (codified as amended at 18 U.S.C.  §   §   3121-3127). The "pen/trap" provisions were added in response to a U.S. Supreme Court decision holding that the use of these devices does not require a judicial order issued on probable cause.  The theory behind the Supreme Court opinion was that unlike a conventional wiretap, these devices do not collect the content of communications but only certain technical information concerning the source or destination of a call.  The pen/trap provisions empowered law enforcement authorities to obtain a judicial order with a certification that "the information likely to be obtained is relevant to an ongoing criminal investigation,"

A. Katz v. United States (389 U.S. 347)

1. The threshold test for 4th Amendment protection:  there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable."

B. Smith v. Maryland (442 U.S. 735)

1. Petitioner's claim is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a "legitimate expectation of privacy" that petitioner held.  Yet a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications.
2. Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.  Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.
3. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business.  In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber.

A. Background and Purpose

1. World Trade Center attacks and terrorist communication monitoring
2. Modernization of ECPA

B. Text of the substantive changes to the Pen Register Statutes

1. 18 U.S.C. § 3121 – general prohibitions on pen register and trap and trace device use
2. 18 U.S.C. § 3123 – issuance of an order for a pen register or a trap and trace device
3. 18 U.S.C. §3124 – assistance in installation and use of a pen register or a trap and trace device
4. 18 U.S.C. §3127 – definitions for chapter

C. Statutory standard for authorization of pen register tap

1. The standard for obtaining a court order authorizing a pen register surveillance
2. Comparison with standard required for Title III Wiretap surveillance

A.  The statute is written to exclude “content” from being gathered by a pen register

1. “such information shall not include the contents of any communication” (18 U.S.C. §3121(c), 18 U.S. C. §3127(3)).
2. “contents” has the meaning set forth in 18 U.S.C. §2510:  "contents", when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.

B. Vagueness

C. The potential for abuse

1. People v. Bialostok (80 N.Y. 2d 738)

a) "[t]hat no unauthorized eavesdropping may have occurred is beside the point, because it is the potential for abuse that is the focus of analysis".  In light of the broad legislative intent of article 700 to safeguard individual privacy and the potential for abuse  embodied in the technology used here, we distinguish this more sophisticated technology from that at issue in earlier pen register cases. The traditional pen register considered in Smith v Maryland was, to large extent, self-regulating. Neither through police misconduct nor through inadvertence could it reveal to anyone any information in which the telephone user had a legitimate expectation of privacy. The same is not true of the device used here. This is a technology that has the capacity, through willful use or otherwise, to intrude on legitimately held privacy, and it is the warrant requirement, interposing the Magistrate's oversight, that provides to citizens appropriate protection against unlawful intrusion.”

VII. Analysis of the constitutionality of § 216 of the Patriot Act as applied to a hypothetical investigative scenario

A. “Pen register”-type equipment in use today

1. DCS1000 (“Carnivore”)

a) Specifications
b) Independent test results

B. Application of the Patriot Act provisions to Carnivore-type equipment in use today

1. E-mail

a) To/From data
b) Message body data
c) Message length

2. Web browsing

a) Static sites
b) Search engine input data

3. File Transfer Protocol (FTP)

C. If Carnivore-like equipment falls within the definition of “pen register” under the Patriot Act, must the Act be considered unconstitutional as applied to pen registers such as Carnivore?

1. United States v. New York Tel. Co. (434 U.S. 159)

a) Pen registers do not "intercept" because they do not acquire the "contents" of communications, as that term is defined by 18 U. S. C. § 2510 (8). Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed--a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers. Furthermore, pen registers do not accomplish the "aural acquisition" of  anything. They decode outgoing telephone numbers by responding to changes in electrical voltage caused by the turning of the telephone dial (or the pressing of buttons on push button telephones) and present the information in a form to be interpreted by sight rather than by hearing.

2. Brown v. Waddell (50 F.3d 285)

a) The reason for according less protection against interception by pen registers (and trap and trace devices) than by all other forms of intercepting devices not specifically excepted from the ECPA was pointed out in the senate committee report. It was there noted that, as the Supreme Court long since had recognized, see Smith v. Maryland, 442 U.S. 735, 745, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979), there are no legitimate expectations of privacy in the telephone numbers one calls, so that no warrant is required by the Fourth Amendment to install a pen register, whose only capability is to intercept those numbers. S. Rep. No. 541, supra, at 2. By contrast, in noting that the function of a digital display pager is "usually" to display telephone numbers, the report implicitly recognized what all parties here concede -- that because it can also receive a much larger set of numbers, it can by that means receive and display an unlimited range of number-coded substantive messages. Because of these strong indications from statute and legislative history that interceptions by "cloned" digital display pagers should not be equated with interceptions by pen register, this is the interpretation accepted by the Justice Department's Criminal Division, by commentators, and by the few courts that have addressed the issue directly. See Florida v. Jackson, 1995 WL 48439 (Fla.) (so interpreting the ECPA while interpreting state conforming statutes to require same result);    People v. Pons, 133 Misc. 2d 1072, 509 N.Y.S.2d 450, 453 (Sup. Ct. 1986) ("The monitoring of [a] telephone pager device is more intrusive than the use of a pen register. The pager device is capable of conveying substantive information by combining digits in various sequences. Both telephone numbers and coded messages may be conveyed.")

A. Problem: by expanding the definition of a “pen register,” Congress has stretched the limits of Smith to the point where the Fourth Amendment begins to provide protection

1. The Smith holding applied to very basic telephone dialing monitoring equipment and the data gathered consisted of simply telephone numbers dialed and source numbers for calls received
2. The encroachment of electronic surveillance onto data bordering content exceeds the holding and spirit of Smith

B. Facial changes to the statute and/or standard for judicial oversight:  alternatives to the status quo

1. The standard for judicial oversight of pen register use must be increased (i.e. search warrant required); or,
2. the language of the Patriot Act needs to be tightened to specify with technical detail where the boundaries are between “content” and “dialing, addressing, and routing” information

C. As applied protections: mitigating the potential for abuse through mandated surveillance equipment limitations

1. Functional separation – machines and processes (software) used for electronic addressing information (equivalent to traditional pen/trap devices) should not be capable of full-content monitoring
2. Physical separation – machines containing different levels of functionality must be stored and utilized in a way that maintains segregation and contains sufficient auditing and tracing