Current legislation to rein in law enforcement

[Richard Murray]

To fellow netsec subscribers:
An interesting outgrowth of the Carnivore controversy is the rapid
progress toward imposing new limitations on law enforcement's ability
to obtain electronic evidence.  On Tuesday, September 26, 2000, the
House Judiciary Committee passed H.R. 5018, "The Electronic
Communications Privacy Act of 2000," and it has now been put on an
accelerated  calendar for consideration and possible passage by the full
House of Representatives on Tuesday, October 3, 2000.  In the view of
persons in law enforcement whose opinion I respect, this bill would
impose stringent new limitations on law enforcement's ability to gather
evidence in all sorts of cases.  Readers of the listserv are encouraged to
form their own opinions, of course.  
      A description of some of the bill's features follows.
Dick Murray

Fact Sheet on H.R. 5018 (Reported out of House Judiciary
Committee September 25, 2000)
H.R. 5018, if enacted, would severely impair law enforcement*s ability to
conduct criminal investigations both in cyberspace and in the physical
world.  It imposes significant new barriers between law enforcement
and relevant evidence * including but not limited to heightened
requirements for wiretap orders, pen register orders, trap and trace
orders, cell-phone tracking orders, and orders for obtaining stored
electronic communications from service providers.  It creates new,
burdensome reporting requirements for access to stored
communications.  And it establishes new, punitive statutory suppression
remedies applicable to email and other electronic communications
obtained from Internet Service Providers (ISPs).  Thus, this one-sided bill
would harm public safety by restricting law enforcement access to
critical information in a wide range of criminal investigations.  

Provisions Harmful to Public Safety

Severe restrictions on acquiring cell phone location
information.  Under current federal law, investigators may use a court
order under the 18 U.S.C. *2703(d) standard (*specific and articulable
facts*) to obtain real-time cell-site location information.  H.R. 5018 would
raise the standard to probable cause, despite the absence of any abuse
by law enforcement and despite the fact that the information does not
involve the contents of communications.

Restrictions on the use of pen register/trap and trace devices. 
Current federal law requires an applicant to certify that pen/trap
information likely to be obtained is relevant to an ongoing criminal
investigation.  H.R. 5018 raises the standard to require an assessment
by the court that *specific and articulable facts reasonably indicate that a
crime has been, is being, or will be committed, and information likely to be
obtained [through the order] is relevant to the investigation of that crime.* 
There has been no history of law enforcement abuses that would justify
this higher standard or increased judicial oversight.

Increased barriers to acquisition of stored electronic
communications.  Under current federal law, law enforcement may
use a subpoena or  2703(d) court order to compel a provider to
produce certain stored electronic communications (e.g., opened email) or
other files.  H.R. 5018 would require law enforcement to obtain instead a
search warrant based upon probable cause, with statutory suppression
(see below) as a remedy for noncompliance.
					
Statutory suppression for intercepted electronic
communications.  Under current 18 U.S.C. *2515, improperly
intercepted electronic communications may be suppressed only for
constitutional violations.  H.R. 5018 would expand the suppression
remedy to non-government interceptions and to ministerial defects in
court-issued wiretap orders.  

Statutory suppression for stored electronic communications.
H.R. 5018 also adds a new suppression remedy applicable to any stored
electronic communication improperly obtained from a provider.  Thus,
even ministerial defects in search warrants used to compel email from
ISPs would lead to suppression of relevant evidence.
	
Increased barriers to interception of electronic
communications.  Current law (18 U.S.C. *2516(3)) permits a federal
prosecutor to obtain a wiretap order for non-voice communications for
any federal felony and without high-level Justice Department approval. 
H.R. 5018 would raise the requirements to the level required for voice
intercepts.  This change would erode law enforcement access even to
minimally sensitive information * e.g., cloned numeric pagers * critical to
drug cases, and impose enormous burdens on the Office of Enforcement
Operations in the Criminal Division of the Justice Department to review
additional applications, potentially delaying critical time-sensitive
investigations.

Burdensome new reporting requirements.  H.R. 5018 adds a
wholly new, extremely onerous reporting requirement applicable in all
cases where federal law enforcement compels stored electronic
communications from a provider.  For each compulsory instrument *
warrant, court order, or subpoena * the Attorney General*s annual
report would have to specify the process used; whether a court granted
or denied an application; the offense under investigation; the applying
agency; the type of entity from which disclosure was sought; the nature
and number of incriminating communications; and the number of other
communications disclosed.

Failed Attempts to Address Law Enforcement Concerns

Technical issues in amendments to stored records disclosure
provisions.  H.R. 5018 attempts to expand the set of circumstances
(set out in 18 U.S.C. *2702) in which a provider may voluntarily disclose
customer records to law enforcement.  However, it does not allow a
provider to disclose the contents of communications in emergency
situations in order to protect life or limb.  More importantly, it creates an
internal statutory conflict by failing to make parallel revisions to *2703.

Imperfectly crafted exception to suppression rule.  H.R. 5018
attempts to create an exception to the statutory suppression rule of
*2515 for prosecutions against the illegal wiretapper.  However, it fails
to make essential parallel amendments to *2518(10) and *2517,
rendering the proposed change ineffective.