[Dewayne-Net] Judge Approves Warrantless Email Monitoring

Dewayne Hendricks dewayne at warpspeed.com
Fri Feb 10 21:24:32 PST 2006

[Note:  This item comes from reader Randall.  DLH]

>From: Randall <rvh40 at insightbb.com>
>Date: February 10, 2006 8:54:22 PM PST
>To: Dave <dave at farber.net>, Dewayne Hendricks
><dewayne at warpspeed.com>, cyberia <CYBERIA-L at LISTSERV.AOL.COM>
>Subject: Judge Approves Warrantless Email Monitoring
>Judge Approves Warrantless Email Monitoring
>Friday, February 10, 2006 at 11:51 PM EST
> What: The Justice Department asks a judge to approve Patriot Act e-
>monitoring without any evidence of criminal behavior.
>When: Decided Feb. 2, 2006 by U.S. District Judge Thomas Hogan in
>Washington, D.C.
>Outcome: E-mail surveillance approved.
>What happened: As part of a grand jury investigation that's still
>secret, the Justice Department asked a federal magistrate judge to
>approve monitoring of an unnamed person's e-mail correspondents.
>The request had a twist: Instead of asking to eavesdrop on the
>of the e-mail messages, which would require some evidence of
>prosecutors instead requested the identities of the correspondents.
>included in the request was header information like date and time and
>Internet address--but not subject lines.
>The federal magistrate judge balked and asked the Justice
>Department to
>submit an additional brief to demonstrate that such a request would be
>Instead, prosecutors asked Judge Hogan to step in. He reviewed the
>portion of federal law dealing with "pen register" and "trap and
>devices--terms originating in the world of telephone wiretapping--and
>concluded it "unambiguously" authorizes the e-mail surveillance
>Though the language may be clumsy, Hogan said, the Patriot Act's
>amendments authorize that type of easily obtainable surveillance of
>e-mail. All that's required, he said, is that prosecutors claim the
>surveillance could conceivably be "relevant" to an investigation.
>Excerpt from the court's opinion:
>"In 2001, Congress enacted the Uniting and Strengthening America by
>Providing Appropriate Tools Required to Intercept and Obstruct
>Act of 2001 (the "USA Patriot Act"), Section 216 of which explicitly
>amended the authorities relating to pen registers and trap and trace
>devices...by expanding the definitions of these devices to include
>"processes" to obtain information about "electronic communication."
>"Commenting on the very language that was finally enacted in
>Section 216
>of the USA Patriot Act, several members of Congress highlighted the
>that the amendments would bring the state of the law in line with
>current technology by making pen registers and trap and trace devices
>applicable to the Internet and--more to the point--e-mail.
>"For example, a section-by-section analysis of the bill that
>Representative John Conyers included in the record before the final
>House vote, which contains the same language that was finally
>enacted by
>Congress, states that Section 216 "extends the pen/trap provisions so
>they apply not just to telephone communications but also to Internet
>"In addition, Senator Jon Kyl, who is currently Chairman of the United
>States Senate Judiciary Subcommittee on Terrorism, Technology &
>Security, noted that the same language in the Senate version of the
>"would codify current case law that holds that pen/trap orders
>apply to
>modern communication technologies such as e-mail and the Internet, in
>addition to traditional phone lines."
>"The Congressional Research Service also published a legal analysis of
>the USA Patriot Act that states that the Act "permits pen register and
>trap and trace orders for electronic communications (e.g., e-mail)."
>"The plain language of the statute makes clear that pen registers and
>trap and trace devices may be processes used to obtain information
>e-mail communications. The statute's history confirms this
>interpretation and there is no support for a contrary result."

Weblog at: <http://weblog.warpspeed.com>

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