Re: Current legislation to rein in law enforcement

[Paul Howell]

for every action, there is an equal and opposite reaction.

face it, it's just nature at work.

:)

< paul


Richard Murray writes:
 > 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. 
 >