Senate votes to permit warrantless Net-wiretaps, Carn ivoreus e (fwd)

[Aimee Farr]

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