Precedent for Warrantless Net Monitoring Set

[Eugen Leitl]

>From the somebody-needs-killing dept.

Link: http://slashdot.org/article.pl?sid=05/02/10/0044214
Posted by: samzenpus, on 2005-02-10 05:40:00

   from the only-bad-people-need-privacy dept.
   highcon writes "According to this editorial from SecurityFocus, a
   recent case of a drug dog which pushed the limits of "reasonable
   search" may have [1]implications for Internet communications in the
   U.S. This Supreme Court case establishes a precendent whereby
   "intelligent" packet filters may be deployed which, while scanning the
   contents of network traffic indiscriminently, only "bark" at
   communication indicative of illegal activity."

References

   1. http://www.securityfocus.com/columnists/297

----- End forwarded message -----

Of Dog Sniffs and Packet Sniffs
Why a Supreme Court decision on canine-assisted roadside searches opens the
door to a new regime of Internet surveillance.
By Mark Rasch Feb 08 2005 11:21AM PT
Click here for Core Impact!
The Fourth Amendment to the U.S. Constitution is supposed to be the one that
protects people and their "houses, places and effects" against "unreasonable
searches." Forty-two years ago, the U.S. Supreme Court held that attaching a
listening device to a public pay phone violated this provision because the
Constitution protects people, not places, and because the Fourth Amendment
prohibits warrantless searches without probable cause if the target enjoys a
reasonable expectation of privacy.

Last month the U.S. Supreme Court effectively decimated this principle in a
case that could have a profound impact on privacy rights online.

The case, decided by the court on January 24th, had nothing to do with the
Information Superhighway, but rather an ordinary interstate highway in
Illinois. Roy Caballes was pulled over by the Illinois State Police for
speeding. While one officer was writing him a ticket, another officer in
another patrol car came by with a drug sniffing dog.

There was absolutely no reason to believe that Caballes was a drug courier --
no profile, no suspicious activity, no large amounts of cash. The driver
could have been a soccer mom with a minivan filled with toddlers. Under
established Supreme Court precedent, while the cops could have looked in the
window to see what was in "plain view," the officers had neither probable
cause nor reasonable suspicion to search Caballes' car, trunk, or person.

Well, you know what happened next -- the dog "sniff" indicated that there
might be drugs in the trunk, which established probable cause to open the
trunk, where the cops found some marijuana.
The government may soon deploy "intelligent" packet search filters that will
seek out only those communications that relate to criminal activity.
Now here is where things get dicey for the Internet. In upholding the dog's
sniff-search of the trunk, the Supreme Court held that it did not "compromise
any legitimate interest in privacy." Why? Because, according to the court,
"any interest in possessing contraband cannot be deemed 'legitimate.'" The
search was acceptable to the court because it could only reveal the
possession of contraband, the concealment of which "compromises no legitimate
privacy interest."

The expectation "that certain facts will not come to the attention of the
authorities" is not the same as an interest in "privacy that society is
prepared to consider reasonable," the court wrote.

In other words, the search by the dog into, effectively, the entire contents
of a closed container inside a locked trunk, without probable cause, was
"reasonable" even though the driver and society would consider the closed
container "private" because the search only revealed criminal conduct.

The same reasoning could easily apply to an expanded use of packet sniffers
for law enforcement.

Currently, responsible law enforcement agencies limit their warrantless
Internet surveillance to the "wrapper" of a message, i.e., e-mail addresses
or TCP/IP packet headers, unless they have a court order permitting a more
intrusive search. Looking at the "outside" of the communication has been
treated as similar to looking at the outside of a vehicle -- and maybe
peering into the window a bit. To peek inside the communication -- read the
content -- required that you first get someone in a black robe involved.

The experiences of Mr. Caballes (the soccer mom, or me or you ) changed all
that. The government is practically invited to peek inside Internet traffic
and sniff out evidence of wrongdoing. As long as the technology -- like a
well-trained dog -- only alerts when a crime is detected, it's now legal.

As context-based search technology improves, the government may soon have the
ability to take Carnivore one better and deploy "intelligent" packet search
filters that will seek out only those communications that relate to criminal
activity. They may already have it.

Although these packet sniffing dogs sniff the packets of sinner and saint
alike, they only bark at the sinner's e-mails. Thus, according to the new
Supreme Court precedent, the sinner has no privacy rights, and the saint's
privacy has not been invaded. In fact, the saint would not even know the
search had taken place -- Internet surveillance is less noticeable than a dog
sniff.

I think Sun Microsystems' president Scott McNealy was only slightly ahead of
his time when he said, "You already have zero privacy, get over it." We could
pass a aconstitutional amendment to protect our privacy rights, but I thought
we did that on Dec 15th, 1791 when the Bill of Rights was ratified.

Hopefully, this case will be limited to a dark dessert highway, and not find
its way onto the Infobahn. But somehow I doubt it.

--
Eugen* Leitl <a href="http://leitl.org">leitl</a>
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