IP: RE: Senate votes to permit warrantless Net-wiretaps,

Tue Dec 10 11:45:29 PST 2019

Carnivore us e
Cc: SAlbertazzie at steptoe.com, SBaker at steptoe.com

I'm glad to see Stu joining the civil libertarian crowd. He's right, of 
course, that there are reasons to be uneasy about the new "Combating 
Terrorism Act."

Current law permits specific Justice Department officials to authorize 
meatspace telephone pen register and trap and trace devices without a court 
order in two circumstances. Here's an excerpt from the U.S. Code:

>an emergency situation exists that involves immediate danger of death or 
>serious bodily injury to any person [or] conspiratorial activities 
>characteristic of organized crime

This bill does three things of note:

1. It adds "U.S. Attorney" to the list of officials who can authorize 
warantless surveillance.

2. It expands the "emergency situation" rule beyond serious bodily 
injury/organized crime. I described this in my article:
>Circumstances that don't require court orders include an "immediate threat 
>to the national security interests of the United States, (an) immediate 
>threat to public health or safety or an attack on the integrity or 
>availability of a protected computer." That covers most computer hacking 

3. It rewrites pen register/trap and trace law and moves it from the 
telephone world to explicitly cover computer networks as well, which would 
permit Carnivore's use under this section (when operated in 
trap-and-trace/pen-register mode). Here are some excerpts from the bill:

>The order shall, upon service of the order, apply to any entity providing 
>wire or electronic communication service in the United States... inserting 
>``, routing, addressing,'' after ``dialing''... by striking ``call 
>processing'' and inserting ``the processing and transmitting of wire and 
>electronic communications''...

Now, whether all this is, as Stu blandly suggests, "a bit alarmist," is up 
to IPers to decide. But I think Senator Patrick Leahy, the chairman of the 
Senate Judiciary committee, put it well during the floor debate last night. 
Here's a quote from the Congressional Record.

>LEAHY: Maybe the Senate wants to just go ahead and adopt new abilities to 
>wiretap our citizens. Maybe they want to adopt new abilities to go into 
>people's computers. Maybe that will make us feel safer. Maybe. And maybe 
>what the terrorists have done made us a little bit less safe. Maybe they 
>have increased Big Brother in this country.



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