From: [log in to unmask]
To: [log in to unmask]
Sent: 27/09/00 22:49
Subject: Policy Post 6.17: Strong Privacy Bill Approved by House Judiciary
Committee


CDT POLICY POST Volume 6, Number 17 September 27, 2000 

A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY 

CONTENTS:
(1) Strong Pro-Privacy Bill Passes House Judiciary Committee
(2) Expansions of Government Power Rejected
(3) Future Prospects for H.R. 5018 Uncertain
(4) Senate Legislation Would Threaten Privacy 

---------------------------------------------------------------

(1) STRONG PRO-PRIVACY BILL PASSES HOUSE JUDICIARY COMMITTEE 

By a vote of 20-1, the House Judiciary Committee on September 26
approved
H.R. 5018, legislation to strengthen privacy protections governing law
enforcement surveillance. 

As approved, the bill would -- 

    1. Increase the standard for government access to location
information
       about wireless phone users, requiring a judge to find probable
cause
       to believe that a crime has been or is being committed. 

    2. Increase the standard for use of pen registers and trap and trace
       devices, requiring a judge to find that specific and articulable
       facts reasonably indicate criminal activity and that the
information
       to be collected is relevant to the investigation of such conduct.


    3. Prohibit the use in any court or administrative proceeding of
email
       or other Internet communications intercepted or seized in
violation
       of the privacy standards in the law. 

    4. Require a judicial warrant for government seizure of read or
unread
       email stored with a service provider for up to one year.
(Currently,
       the warrant requirement applies for only 180 days, and the
government
       has maintained that it could obtain email with a mere subpoena as
       soon as it is opened, no matter how recent it is.) 

    5. Require annual public reports by federal law enforcement agencies
on
       the seizure of email, similar to but with less detail than the
       wiretap reports. 

    6. Require high level Justice Department approval for applications
to
       intercept electronic communications, as is currently required for
       interceptions of wire and oral communications. 

A fuller description of key portions of the bill is at
http://www.cdt.org/security/000927hr5018.shtml 

CDT strongly supports HR 5018 as approved by the Judiciary Committee.
Many of the bill's provisions reflect suggestions by CDT in testimony
before the House Judiciary Committee in February and April of this year:
http://www.cdt.org/security/000229judiciary.shtml
http://www.cdt.org/testimony/000406dempsey.shtml 

---------------------------------------------------------------

(2) EXPANSIONS OF GOVERNMENT POWER REJECTED 

The bill has some provisions that allow would greater disclosure of data
or that expand penalties for computer crimes or privacy intrusions. It
would -- 

    -  Allow Internet Service Providers (ISPs) to disclose customer
       identifying information in emergency situations. 

    -  Allow emergency use of pen registers in national security cases
and
       cases involving an ongoing attack against computer system, but
       require the government to apply for a court order within 48 hours
       and, if the order is denied, require the government to notify the
       target that he was the subject of surveillance. 

    -  Raise the maximum penalty for certain more serious computer
       violations to ten years in prison. 

    -  Amend the federal sentencing guidelines such that only the most
       serious computer-related offenses are subject to a mandatory
       six-month sentence (while this cuts sentences, it is intended to
       encourage more prosecutions). 

    -  Increase the civil penalties for illegally intercepting
electronic
       communications. 

However, the Committee showed no interest in adopting other provisions 
sought by the Justice Department that would have expanded government 
surveillance and enforcement powers. In particular, the bill does NOT 
include: 

    1. Nationwide service of pen register and trap and trace orders. 

    2. Language that would make it clear that the pen register/trap and
       trace statute applies to Internet communications. 

    3. Elimination of the $5,000 loss threshold for certain computer
crimes. 

---------------------------------------------------------------

(3) FUTURE PROSPECTS FOR H.R. 5018 UNCERTAIN 

The prime sponsor of the bill, Rep, Charles Canady (R-FL) said that he
will try to move the bill to the House floor. Prospects are uncertain,
as the Congress is trying to finish its business for the year and return
home to campaign. 

Last year, in the Senate, Sen. Patrick Leahy (D-VT) introduced S. 854,
which had a number of the privacy-enhancing provisions that were
incorporated by the House Judiciary Committee in HR 5018. S. 854 is
online
at http://thomas.loc.gov/cgi-bin/query/z?c106:S.854: The Leahy bill
never
received a hearing. Other legislation, S. 2448, which includes many of
the
expansions in government surveillance and enforcement power sought by
the
Justice Department, is also stalled. 

The last weeks of a Congressional session are always unpredictable. CDT
will continue to monitor the status of this legislation. 

---------------------------------------------------------------

(4) SENATE LEGISLATION WOULD THREATEN PRIVACY 

In sharp contrast to the pro-privacy sentiment that propelled HR 5018, 
another bill sneaking under the radar screen would curtail privacy and
expand government powers to compel disclosure of information without
judicial approval and without notice to the record subject. 

The bill is S. 2516, the "Fugitive Apprehension Act of 2000." It passed
the Senate on July 26. The bill would grant the US Marshals Service
so-called "administrative subpoena" authority in fugitive cases. An
administrative subpoena is essentially a piece of paper signed by an
agent, requiring someone to turn over all records the agent wants. No
prior judicial approval is needed, nor is there any requirement for
judicial oversight after the fact. It is not even necessary to obtain
the approval of a prosecutor. In contrast, a grand jury subpoena is at
least technically subject to the oversight of the judge supervising the
grand jury and is issued by a prosecutor, not an agent. 

In short, the administrative subpoena is an instrument of unaccountable,
discretionary power, perfect for fishing expeditions. S. 2516 would
allow any agent of the US Marshals Service to subpoena, on his own
initiative, opened email held by an ISP or bank records, or any other
documents. The bill would allow the agent to command the ISP or the
bank not to tell the record subject that his email has been turned over
to the government. 

There are efforts underway to add S. 2516 to any moving piece of
legislation in the House. CDT is opposing these efforts. 

S. 2516 is online at
http://thomas.loc.gov/cgi-bin/query/z?c106:S.2516: 

---------------------------------------------------------------

Detailed information about online civil liberties issues may be found at
http://www.cdt.org/. 

This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_6.17.shtml. 

Excerpts may be re-posted with prior permission of [log in to unmask] 

Policy Post 6.17 Copyright 2000 Center for Democracy and Technology 


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