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48 hours of wiretap without a court order?
September 14, 2001 6:54 PM   Subscribe

48 hours of wiretap without a court order? Sure, according to the Senate. Carnivore installations on the rise and the recent call to control crypto software are exactly what we don't need. This is probably just the beginning.
posted by skallas (4 comments total)

 
From the article...

Warrantless surveillance appears to be limited to the addresses of websites visited, the names and addresses of e-mail correspondents, and so on, and is not intended to include the contents of communications. But the legislation would cover URLs, which include information such as what Web pages you're visiting and what terms you type in when visiting search engines.

Yeah right.. The contents of the email will not be tracked.
posted by andre_111 at 7:16 PM on September 14, 2001


I received this email from a trusted intelligence source:

"Once again, Declan has exaggerated what happened.

The new legislation covers almost exclusively pen registers and trap-and-trace orders (so it typically would allow cops to recover the address with whom you're exchanging e-mail). While Carnivore can be, and is, used for this, it's more sensationally associated with full Title 3 wiretaps
(which intercept, for example, the substance of those e-mails).

From the article:

The measure, proposed by Orrin Hatch (R-Utah) and Dianne Feinstein (D-California), says any U.S. attorney or state attorney general can order the installation of the FBI's Carnivore surveillance system. Previously, there were stiffer restrictions on Carnivore and other Internet surveillance techniques.


Again, it does allow a U.S. attorney (not a state attorney general) to order
installation of a pen register and/or trap-and-trace in an emergency
situation but then requires them afterward to get approval from a judge.
However, this hardly ever happens b/c it's frankly so easy for them to get
that approval in the first place (all it takes is a certification that the
information sought is relevant to an ongoing criminal investigation).

So, when Declan writes that, "FBI agents soon may be able to spy on Internet
users legally without a court order," that's not really any different than
today, when all it would take is a senior DOJ official to approve an
emergency trap-and-trace w/o prior judicial approval (but they'd still have
to get approval after the fact, and there's a better chance in those cases
that such evidence would be tossed, another reason for the feds not to go
that route).

I'm not saying there don't appear to be problems with the bill, it's just
not as bad as what Declan is saying...."
posted by bkdelong at 7:34 PM on September 14, 2001


I received this email from a trusted intelligence source:

"Once again, Declan has exaggerated what happened.

The new legislation covers almost exclusively pen registers and trap-and-trace orders (so it typically would allow cops to recover the address with whom you're exchanging e-mail). While Carnivore can be, and is, used for this, it's more sensationally associated with full Title 3 wiretaps
(which intercept, for example, the substance of those e-mails).

From the article:

The measure, proposed by Orrin Hatch (R-Utah) and Dianne Feinstein (D-California), says any U.S. attorney or state attorney general can order the installation of the FBI's Carnivore surveillance system. Previously, there were stiffer restrictions on Carnivore and other Internet surveillance techniques.


Again, it does allow a U.S. attorney (not a state attorney general) to order
installation of a pen register and/or trap-and-trace in an emergency
situation but then requires them afterward to get approval from a judge.
However, this hardly ever happens b/c it's frankly so easy for them to get
that approval in the first place (all it takes is a certification that the
information sought is relevant to an ongoing criminal investigation).

So, when Declan writes that, "FBI agents soon may be able to spy on Internet
users legally without a court order," that's not really any different than
today, when all it would take is a senior DOJ official to approve an
emergency trap-and-trace w/o prior judicial approval (but they'd still have
to get approval after the fact, and there's a better chance in those cases
that such evidence would be tossed, another reason for the feds not to go
that route).

I'm not saying there don't appear to be problems with the bill, it's just
not as bad as what Declan is saying...."
posted by bkdelong at 7:34 PM on September 14, 2001


From the FindLaw summary on Warrantless 'National Security' Electronic Surveillance...

In Katz v. United States, Justice White sought to preserve for a future case the possibility that in 'national security cases' electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval. The Executive Branch then asserted the power to wiretap and to 'bug' in two types of national security situations, against domestic subversion and against foreign intelligence operations, first basing its authority on a theory of 'inherent' presidential power and then in the Supreme Court withdrawing to the argument that such surveillance was a 'reasonable' search and seizure and therefore valid under the Fourth Amendment. Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required. Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government's duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy. This protection was even more needed in 'national security cases' than in cases of 'ordinary' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth. Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required. The question of the scope of the President's constitutional powers, if any, remains judicially unsettled. Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any 'United States person' will be overheard. (I guess I learned something in my Intelligence Law classes after all?) This bill certainly seems to be in violation of the Fourth Amendment and previous Supreme Court decisions to me.

Besides that, apparently in the haste of drafting, the bill is written so broadly that it could apply to any kind of 'criminal activity' (not just terrorist activity), including a whole range of 'computer-related' offenses.

Here are the text of the bill and transcript of Senate debate on the bill (where Senator Hatch admits some of the frighteningly broad applications of the proposed legislation.
posted by SenshiNeko at 8:08 PM on September 14, 2001


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