NYTimes.com Article: Concern Over Proposed Changes in Internet Surveillance (fwd)

P.J. Ponder ponder at freenet.tlh.fl.us
Fri Sep 21 16:41:11 EDT 2001


Concern Over Proposed Changes in Internet Surveillance

September 21, 2001

By CARL S. KAPLAN




Significant and perhaps worrisome changes in the
government's Internet surveillance authority have been
proposed by legislators in the wake of the attacks on the
World Trade Center and the Pentagon. Indeed, so much is
happening so quickly it's hard to keep track of the
legislative process, let alone follow the ongoing debate
between fast-moving law enforcement experts and more
cautious civil libertarians.

To illuminate the huge changes afoot, it might be useful to
spotlight one little corner of some proposed legislation.
After all, as lawyers love to say, the devil is in the
details.

The proposed law that is furthest along in the pipeline is
the Combating Terrorism Act of 2001, an amendment to an
appropriations bill that was passed by the Senate on
September 13th without hearings and with little floor
debate. That legislation, which may ultimately become part
of an integrated package of laws put forward this week by
the Attorney General, has several provisions. Perhaps the
most controversial is section 832, which seeks to enhance
the government's ability to capture information related to
a suspect's activities in cyberspace.

Some background information is in order. With telephone
conversations, a law enforcement official can tap a
suspect's conversations only if there is probable cause to
believe the suspect is doing something illegal and if a
magistrate agrees to issue an order. The Fourth Amendment's
ban on unreasonable searches have heightened the legal
requirements needed for a government wiretap.

But suppose an F.B.I. agent doesn't want to listen to the
content of a telephone conversation. Suppose she just wants
to get a list of the telephone numbers that a suspect
dials, and the telephone numbers of people that call the
suspect? This information, the Supreme Court has held, is
not that private. Under federal law, all the government has
to do in order to plant gizmos that record a suspect's
outgoing and incoming telephone numbers -- so called pen
registers and trap and trace devices -- is to tell a
magistrate that the information is relevant to an ongoing
criminal investigation. There is no probable cause
requirement and no hearing. The pen/trap and trace
information is extremely easy to get.

For the past few years, the government has interpreted the
existing pen register and trap and trace laws, which were
designed with telephones in mind, to allow them to swiftly
garner certain information from ISP's about a suspect's
e-mails -- for example, the to/from header information.

In one sense, section 832 of the Senate amendment codifies
the government's pro-law enforcement interpretation. Among
other things, the amendment explicitly expands the pen/trap
and trace law to include Internet communications.
Specifically, the proposed law allows the government, under
the low-standard pen/trap and trace authority, to record
not just telephone numbers dialed but "routing, addressing,
or signalling information" .

According to experts on both sides of the legislative
debate, the exact meaning of routing, addressing and
signalling data is ambiguous. But chances are it includes
not just to/from e-mail header information but a record of
the URLs -- Web site addresses -- that a person visits.

The legislation's language is "not very narrow," said
Stewart Baker, head of the technology practice at Steptoe &
Johnson, a Washington, D.C. law firm, and former general
counsel of the National Security Agency. Conceivably, he
said, federal agents under the proposed law could very
easily -- and without making a showing of probable cause --
get a list of "everyone you send e-mail to, when you sent
it, who replied to you, how long the messages were, whether
they had attachments, as well as where you went online."

"That's quite a bit of information," added Baker, who this
week participated in a written dialog on national security
in wartime on the online magazine Slate. Moreover, it's
more information-rich material than a log of telephone
numbers. "I think if you asked anyone on the street: 'Which
would you rather reveal, the telephone numbers you dialed
or a list of all the people you sent e-mail to and the Web
sites you visited?' I think they'd say, "Go with the phone
numbers,'" he said.
</etc.  . . . . >

http://www.nytimes.com/2001/09/21/technology/21CYBERLAW.html?ex=1002099442&ei=1&en=87cfb55af752ecc4



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