Justice Department takes issue with Net-wiretapping report
The U.S. Department of Justice is taking issue with an article we published Tuesday that describes how the FBI appears to be using a controversial wiretapping technique.
Our article quoted a former Justice Department attorney in the Computer Crime and Intellectual Property Section and Richard Downing, a CCIPS assistant deputy chief, who discussed this at a Stanford Law School event last week.
The wiretapping technique is used in certain cases where specific targeting is infeasible and instead all communications on a pipe are recorded for later perusal and data-mining. It raises questions about compliance with both the Wiretap Act and the Fourth Amendment to the U.S. Constitution.
We told the Justice Department our deadline was late Monday, but they didn't reply until late in the day Tuesday. Here's what Dean Boyd, a Justice Department spokesman, sent to us in e-mail, unedited:
Your article is inaccurate. Nothing has changed from our long-standing practice in implementing court-authorized law enforcement interception orders. The FBI records and retains only that data which it is authorized under law to record and retain -- namely, the communications associated with court-approved targets.
For your information, what law enforcement does is isolate the communications associated with the target facility and record only those communications. After law enforcement collects the targeted communications, as specified in the court order, we "minimize" the captured information by sorting it into relevant and non-relevant material (i.e., depending on whether the contents relate to the criminal activity specified in the court's order).
Such after-the-fact minimization is done with explicit authorization from the court, and no further use may be made of minimized (non-relevant) communications.
On rare occasions involving technical obstacles, we perform real-time filtering on large data connections carrying the traffic of multiple unrelated facilities, but only using automated filters that isolate and retain only the communications associated with the facility identified in the order. All data not relating to the targeted facility is instantly and irreversibly deleted. This data is therefore never read or comprehended by anyone in law enforcement.
The bottom line: Nothing has changed. We believe that Professor Ohm, quoted in the article, either was misquoted or misspoke.
We had sent Boyd a list of questions, including:
What legal authority is DOJ relying on for the "full-pipe" interception, and how long does DOJ believe 18 USC 2518(5) permits the "full-pipe" data to be retained?
Do you believe that "communications associated with court-approved targets" can in some cases include the full contents of the pipe that is associated with a target?
Does your interpretation of 2518(5) treat digital communications as a code or a foreign language?
Was your CCIPS official speaking at the conference incorrect? And, perhaps most importantly, what does the FBI do when the ISP technically is unable to minimize to capture the communications *only* court-appointed targets? (I presume the investigation doesn't abruptly end at that point.)
We also asked to do an actual in-person or telephone interview with a Justice Department official rather than relying on an e-mail exchange. But Boyd replied by saying:
This is all I have for you on this topic. You are free to use it or not. Thank you.
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan.
