FC: Debate over warrantless Carnivore bill with Stu Baker

Declan McCullagh declan at well.com
Sat Sep 15 09:05:11 PDT 2001


Stewart Baker is the former general counsel to the National Security Agency 
and now a partner at the Washington law firm of Steptoe and Johnson:
http://www.steptoe.com/WebBio.nsf/biographies/Stewart+A.+Baker?OpenDocument
http://www.mccullagh.org/image/10/stewart-baker.html

Below is a few rounds of a debate we had on Dave Farber's IP list in 
response to my article ("Senate votes to permit warrantless Net-wiretaps, 
Carnivore use"):
http://www.wired.com/news/politics/0,1283,46852,00.html

-Declan

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>To: "'farber at cis.upenn.edu'" <farber at cis.upenn.edu>
>cc: "Albertazzie, Sally" <SAlbertazzie at steptoe.com>
>Subject: RE: Senate votes to permit warrantless Net-wiretaps, Carnivore
>  us e
>Date: Fri, 14 Sep 2001 19:28:17 -0400
>
>This seems a bit alarmist.  The FBI has long had the authority to get the
>phone numbers that are called from or that call to a suspect's phone.  These
>are trap-and-trace and pen-register orders.  The Justice Department has
>generally taken the position that the Internet equivalent of such data is
>the addressing information in emails.  This bill would enshrine the Justice
>Department position in law -- without changing the warrant requirements or
>the predicate for getting such Internet pen register data.  It's not that
>big a change from the status quo.  I would guess that, even without the law,
>Justice would have about a 60-40 or even 70-30 chance of winning its
>argument in court.
>
>In my view there are some reasons to be uneasy about the bill but not
>frothing.
>
>First, the to and from lines on my emails (plus the URLs I visit) are in
>fact more intimate information than the phone numbers I call.  What's more,
>I'm already on notice that the phone numbers aren't all that private --
>they're used to bill me, after all.  Not true for URLs or "to" lines.  Once
>that data is gathered by the police(on a very easy standard, I agree), it
>may never be thrown out, and lots of people can access it.  So extending
>police authority to such data ought to be the occasion for thinking
>creatively about how to discipline the use of that authority.  If I were
>writing the bill, I'd let the police gather such data, but I'd do more to
>audit the people who access it and require prosecutors to notify people
>after the fact that they've been targeted for surveillance (unless that
>would blow an ongoing investigation).  As things stand, the only people who
>find out about such surveillance and thus get a chance to challenge it are
>criminal defendants.  Isn't that just backwards?  I mean, who came up with a
>system in which crooks may go free because their privacy was violated while
>innocent people who've suffered the same violation never have a remedy?
>
>Second, most ISPs would like to see an assurance that Carnivore won't be
>used if they have their own systems that can accomplish the same thing, or
>that they'll be indemnified for any damage Carnivore might do to the system.
>
>In short, we may be missing some opportunities to improve privacy law, but
>it's hard to say that the privacy sky is falling.
>
>Stewart

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