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---------- Forwarded message ----------
Date: Fri, 14 Sep 2001 20:51:50 -0400
From: David Farber
Date: Fri, 14 Sep 2001 19:59:39 -0400 To: farber@cis.upenn.edu, ip-sub-1@majordomo.pobox.com From: Declan McCullagh
Cc: SAlbertazzie@steptoe.com, SBaker@steptoe.com
Dave, I'm glad to see Stu joining the civil libertarian crowd. He's right, of course, that there are reasons to be uneasy about the new "Combating Terrorism Act."
Current law permits specific Justice Department officials to authorize meatspace telephone pen register and trap and trace devices without a court order in two circumstances. Here's an excerpt from the U.S. Code:
http://www4.law.cornell.edu/uscode/18/3125.html
an emergency situation exists that involves immediate danger of death or serious bodily injury to any person [or] conspiratorial activities characteristic of organized crime
This bill does three things of note:
1. It adds "U.S. Attorney" to the list of officials who can authorize warantless surveillance.
2. It expands the "emergency situation" rule beyond serious bodily injury/organized crime. I described this in my article: http://www.wired.com/news/politics/0,1283,46852,00.html
Circumstances that don't require court orders include an "immediate threat to the national security interests of the United States, (an) immediate threat to public health or safety or an attack on the integrity or availability of a protected computer." That covers most computer hacking offenses.
3. It rewrites pen register/trap and trace law and moves it from the telephone world to explicitly cover computer networks as well, which would permit Carnivore's use under this section (when operated in trap-and-trace/pen-register mode). Here are some excerpts from the bill:
http://www.politechbot.com/docs/cta.091401.html
The order shall, upon service of the order, apply to any entity providing wire or electronic communication service in the United States... inserting ``, routing, addressing,'' after ``dialing''... by striking ``call processing'' and inserting ``the processing and transmitting of wire and electronic communications''...
Now, whether all this is, as Stu blandly suggests, "a bit alarmist," is up to IPers to decide. But I think Senator Patrick Leahy, the chairman of the Senate Judiciary committee, put it well during the floor debate last night. Here's a quote from the Congressional Record.
http://www.fas.org/sgp/congress/2001/s091301.html
LEAHY: Maybe the Senate wants to just go ahead and adopt new abilities to wiretap our citizens. Maybe they want to adopt new abilities to go into people's computers. Maybe that will make us feel safer. Maybe. And maybe what the terrorists have done made us a little bit less safe. Maybe they have increased Big Brother in this country.
-Declan
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