Recent Legal Developments
University of Wisconsin, Madison
David Sobel, General Counsel of the Electronic Privacy Information Center, presented a provocative and timely report on new means of electronic surveillance. Mr. Sobel argues that it is difficult for law to keep up with the lightning speed of new technology developments, and sometimes the complexity of modern technology can escape the drafters of legislation. In 1975, just after Watergate, the Church Committee urged Congress to guard against the "awesome technology" within the National Security Agency. Compare today's technology to that of 1975, and the problem becomes apparent. A case in point is the USA Patriot Act.
The Patriot Act granted expanded information-gathering powers to the government, whereas it has become clear post-September 11 that government agencies had plenty of legal power; what they lacked were translators and information analysts.
The Patriot Act (1) expands government surveillance power, (2) limits judicial review, (3) blurs the distinction between law enforcement and intelligence surveillance, and (4) extends transactional surveillance to the Internet.
Transactional surveillance devices (also referred to as pen registers) resemble Caller ID rather than wiretaps, and consequently there is no requirement of probable cause. Instead, the desired information must be merely "relevant" to an ongoing investigation. Moreover, a judge is required to sign the order for the installation of a pen register without the ability to use his/her discretion. Proper transactional surveillance on the Web is difficult because messages are split up into packets. As a result, if the Internet service provider can't separate out the name of the recipient, agents end up receiving entire messages instead. Mr. Sobel concludes that this overcollecting interferes with legitimate investigation and invades the privacy of citizens. The FBI's pen register is known as Carnivore.
Government agents can also decode passwords in order to access email through "key logger" technology. In U.S. v. Scarfo, the defense contended that key logger is equivalent to a wiretap. The government invoked the Classified Information Procedures Act to prevent access to specific details of the technique. Because the decision in Scarfo would have been written after September 11, Scarfo chose to plea bargain, and thus lost the opportunity to appeal. Magic Lantern technology allows remote installation of Internet surveillance. It works through a virus, so there is no need for physical access to the computer itself. For more information on Scarfo, see http://www.epic.org/crypto/scarfo.html.