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From: "Baker, Stewart" <SBaker@steptoe.com> To: "'Declan McCullagh'" <declan@well.com>, farber@cis.upenn.edu, ip-sub-1@majordomo.pobox.com cc: "Albertazzie, Sally" <SAlbertazzie@steptoe.com>, "Baker, Stewart" <SBaker@steptoe.com>

Declan,

I ignored the first two points because I don't think they're that important. These "warrantless searches" are emergency orders that have to be followed by a court order in 48 hours. Sometimes courts are closed and the cops need data right away. Tuesday evening would be a good example. This is not some out-of-control police authority.

The people who can ask for emergency orders have to be designated by one of several officials at Main Justice. That's to make sure someone responsible ends up with the authority to declare an emergency. So an assistant US attorney could be designated by Main Justice in each district right now. What's the big deal with letting the US Attorney for the district do the designating instead of Main Justice? Seems to me that the US Attorney probably knows more about staff changeovers than Main Justice, so it makes sense for the US Attorney to do the designating locally.

Stewart

See the following portion of a recent TX bill, proposed in June. Offered for comparative purposes against the "new and improved" 3125. http://www.capitol.state.tx.us/tlo/billsrch/subject/77r/S1087.HTM Sec. 8A. EMERGENCY INSTALLATION AND USE OF INTERCEPTING 4-6 DEVICE. (a) The prosecutor in a county in which an electronic, 4-7 mechanical, or other device is to be installed or used to intercept 4-8 wire, oral, or electronic communications shall designate in writing 4-9 each peace officer in the county, other than a commissioned officer 4-10 of the Department of Public Safety, who: 4-11 (1) is a member of a law enforcement unit specially 4-12 trained to respond to and deal with life-threatening situations; 4-13 and 4-14 (2) is authorized to possess such a device and 4-15 responsible for the installation, operation, and monitoring of the 4-16 device in an immediate life-threatening situation. 4-17 (b) A peace officer designated under Subsection (a) or 4-18 under Section 5(b) may possess, install, operate, or monitor an 4-19 electronic, mechanical, or other device to intercept wire, oral, or 4-20 electronic communications if the officer: 4-21 (1) reasonably believes an immediate life-threatening 4-22 situation exists that: 4-23 (A) is within the territorial jurisdiction of 4-24 the officer or another officer the officer is assisting; and 4-25 (B) requires interception of communications 4-26 before an order authorizing the interception can, with due 5-1 diligence, be obtained under this section; 5-2 (2) reasonably believes there are sufficient grounds 5-3 under this section on which to obtain an order authorizing the 5-4 interception; and 5-5 (3) obtains from a magistrate oral or written consent 5-6 to the interception before beginning the interception. 5-7 (c) A magistrate may give oral or written consent to the 5-8 interception of communications under this section. 5-9 (d) If an officer installs or uses a device under Subsection 5-10 (b), the officer shall: 5-11 (1) promptly report the installation or use to the 5-12 prosecutor in the county in which the device is installed or used; 5-13 and 5-14 (2) within 48 hours after the installation is complete 5-15 or the interception begins, whichever occurs first, obtain a 5-16 written order from a judge of competent jurisdiction authorizing 5-17 the interception. 5-18 (e) A judge may issue an order authorizing interception of 5-19 communications under this section during the 48-hour period 5-20 prescribed by Subsection (d)(2). If an order is denied or is not 5-21 issued within the 48-hour period, the officer shall terminate use 5-22 of and remove the device promptly on the earlier of the denial or 5-23 the expiration of 48 hours. 5-24 (f) The state may not use as evidence in a criminal 5-25 proceeding any information gained through the use of a device 5-26 installed under this section if authorization for the device is not 6-1 sought or is sought but not obtained. ============================================================================ ~Aimee