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 --

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/.

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Policy Post 6.17 Copyright 2000 Center for Democracy and Technology