Police blotter: Patriot Act e-mail spying approved

"Police blotter" is a weekly report on the intersection of technology and the law.

What: The Justice Department asks a judge to approve Patriot Act e-mail monitoring without any evidence of criminal behavior.

When: Decided Feb. 2, 2006 by U.S. District Judge Thomas Hogan in Washington, D.C.

Outcome: E-mail surveillance approved.

What happened: As part of a grand jury investigation that's still secret, the Justice Department asked a federal magistrate judge to approve monitoring of an unnamed person's e-mail correspondents.

The request had a twist: Instead of asking to eavesdrop on the contents of the e-mail messages, which would require some evidence of wrongdoing, prosecutors instead requested the identities of the correspondents. Also included in the request was header information like date and time and Internet address--but not subject lines.

The federal magistrate judge balked and asked the Justice Department to submit an additional brief to demonstrate that such a request would be legal.

Instead, prosecutors asked Judge Hogan to step in. He reviewed the portion of federal law dealing with "pen register" and "trap and trace" devices--terms originating in the world of telephone wiretapping--and concluded it "unambiguously" authorizes the e-mail surveillance request.

Though the language may be clumsy, Hogan said, the Patriot Act's amendments authorize that type of easily obtainable surveillance of e-mail. All that's required, he said, is that prosecutors claim the surveillance could conceivably be "relevant" to an investigation.

Excerpt from the court's opinion:
"In 2001, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the "USA Patriot Act"), Section 216 of which explicitly amended the authorities relating to pen registers and trap and trace devices...by expanding the definitions of these devices to include "processes" to obtain information about "electronic communication."

"Commenting on the very language that was finally enacted in Section 216 of the USA Patriot Act, several members of Congress highlighted the fact that the amendments would bring the state of the law in line with current technology by making pen registers and trap and trace devices applicable to the Internet and--more to the point--e-mail.

"For example, a section-by-section analysis of the bill that Representative John Conyers included in the record before the final House vote, which contains the same language that was finally enacted by Congress, states that Section 216 "extends the pen/trap provisions so they apply not just to telephone communications but also to Internet traffic."

"In addition, Senator Jon Kyl, who is currently Chairman of the United States Senate Judiciary Subcommittee on Terrorism, Technology & Homeland Security, noted that the same language in the Senate version of the bill "would codify current case law that holds that pen/trap orders apply to modern communication technologies such as e-mail and the Internet, in addition to traditional phone lines."

"The Congressional Research Service also published a legal analysis of the USA Patriot Act that states that the Act "permits pen register and trap and trace orders for electronic communications (e.g., e-mail)."

"The plain language of the statute makes clear that pen registers and trap and trace devices may be processes used to obtain information about e-mail communications. The statute's history confirms this interpretation and there is no support for a contrary result."

[Bill Dautrive]

Nice

Make a judgement using a treasonous and unconstitutional piece of legislation to further erode rights.

The judge should be jailed along with everyone involved with the unpatriotic act.

[timfox123]

5$ gas and being picked up for a bad joke

I am not a fan of bushy. During his administration he has done little to cut the price of gas ( which is making him and his rich ). Now they can scan our email for anything. We conquered the USSR just in time to become the USSR.

Vodaka comrade ?

[kingwr]

This judge is reading too narrowly...

The District Court judge said "[there is] no support for a contrary result." I have to respectively disagree. Smith v. Maryland, the ECPA, and the PATRIOT Act all distinguish between "content" and "routing and addressing" information, where content is anything that relates the purpose of the communication and routing and addressing information is the means to establish communication.

Contrary to this judge's narrow view, I think there is a strong argument in the context of Internet communications and email for the numeric IP addresses to makeup the "routing and addressing" information and for e-mail addresses and domain names and URLs to be considered "content". For example, if I send a message to [e-mail], or go to the web page http://donate.prayforpeace.org, does not the e-mail address and URL respectively reveal the purpose of my communication? And as such, would it not be "content" as defined in the statutes and distinquished in Smith? Any thus protected and only obtainable with a warrant?

Let's hope this one goes to the Supreme Court for some clarification!

[Zaphod_Beeblebrox]

Anybody remember that we're at war here?

Oops sorry - I guess we should be more worried about the government wirtapping grandma when she calls Domino's.

C'mon people, wake up. This stuff is being done to catch the bad guys - the Feds have no interest in your silly little emails - unless they are going to known terrorist operatives.

By the way, this isn't a new idea. Does anyone remember carnivore or the wiretapping that occurred under Clinton? (And we weren't even at war then...)

[solarflair]

E-mail monitoring is a must.

As stated in the post below, "people we are at war," and the bad guys will kill you. Our service men and women are fighting for this great country with pride. Uncle Sam does not care about mine and your ranting unless you are a terrorist ploting something.
Have a great day...

[Rexerito]

Encrypted Email

How will they see encrypted e-mail? They dont have the certificate.

[JackfromBerkeley]

It's way past time to take back our country

They stole the last 2 national elections and we all did nothing.
All I can sadly conclude is that we have the government that we
deserve, and those arrogant selfish bastards represent us all too
well.

[freq]

everyone must protect innovation.... and ammend the constitution

be it a false war or not, its terrifying to see the government break down the security walls of all the tech companies I have ever worked for. In each organization I have been involved with, security was a very serious issue.

[Michael G.]

Patriotism

Patriotism means fighting for what counts in America---freedom of speech to make a difference. The Patriot Act has shown that it is possible to create a country that believes otherwise, in the name of "national security". If Bin Laden could hear this news, I'm sure he'd be delighted. The attack he planned on 9/11 created two differences in America---the Iraq war with a massive and tragic price, and a repressive fear that has consumed the optomism of this country since.

It saddens me to hear as an American, the ways we're throwing away our treasured liberties and values for the sake of "protection from terrorism". This is what the terrorists intended---to weaken our resolve to be free, to weaken our resolve to think rationally concerning issues, to be gripped into a paranoia that stifles creativity and advancement of this nation.

This type of e-mail surveillance is just another attempt at destroying civil liberties in this country.

[Bush.Sux]

More Nazi Goosetepping by the GOP...

Just remember what goes around comes around.

When the Democrats take office after this supposed BS war on middle easterner, they will then get to spy on the GOP and get away with whatever they so please without repercussion.

[Michael G.]

George W. and the Police

The interesting concept concerning George W. is the "War on Terrorism". Here George W. makes a mistake that the police would never have. It's a simple analogy---Imagine a person robs a convenience store. What do the police do about it? They take a description of the criminal, and concentrate on catching him. If George W. were a policeman, he would take a different approach. He would want to question, and perhaps arrest, everybody that has ever thought about robbing a convenience store, instead of catching the real person that robbed it.

The problem with the "War on Terror" is that 9/11 concerned eleven criminals and one instigator---Osama Bin Laden. If George W. had focused on Afghanistan and catching Osama, I doubt many people would be concerned with his actions. Instead, he uses the "War on Terrorism" as an excuse to spy on American citizens. Instead, he goes into a lengthy and costly war in Iraq and catches Saddam. Saddam(according to George) "might have" thought about the 9/11 attack, but there is no substantiated evidence. If George W. were a policeman, he'd be laughed out of the squad.

[Earl Benser]

One thing is for sure....

An article like this brings out all the foaming at the mouth nut
cases in town, and all their little brothers too.

At least not much intelligence is wasted among them...

[BogusName]

Why hasn't CNET covered

the story about Yahoo cooperating with the Chinese government to identify dissidents within China?

That is by far the most agregious act I have heard any tech company do. I changed my homepage that day and will never support that conglomerate again.

[Macsaresafer]

We aren't at war.

Wars are fought against countries, and while they can take a
while, wars can end. We're involved in several police actions, and
like the "war on drugs," the "war on terrorism" can never be over.
The Republican controlled congress and White House call it a
war so they can cover their actions. Actions like exposing covert
operatives for political advantage, spying on Americans without
warrants, and playing politics with "threat levels" during election
periods. Haven't you noticed that the threat level stopped
fluctuating after the elections? These things infringe on
American rights and endanger our Democracy more than any
terrorist.

[angelxspress35]

our forefathers would be ashamed

While our country falls apart and the american dream becomes more dissolved. Our forefathers would be ashamed of our current government. The great USA is becoming more like communist Russia and communist Germany. We are no longer free. Our freedoms are being infringed upon. The very thing our Government says its fighting, they are inflicting on the american people. There is no representation and Americans were not asked if we agreed with this spying. Power is corruptive and the checks and balances have not stopped corruptions. I am appauled that our government in fear of terrorism has been coerced to change the way we live forever. There has always been terrorism, look at Adolph Hitler, Mousilini, and more, but in all these times what made America different was democracy, we had a choice. We now have no choice in our freedom and big govrnment is making decisions not for the people but against the people. Are we truly free? I think not.

[angelxspress35]

In response

Hundereds of years later we have lowered our standards of what is acceptable. Justification of things that used to be socially unacceptable are now acceptable. Our moarality in this country is what has led us down this slippery slope. We used to stand up against corruption as US citizens and now we all passively sit and let it happen. While corruption takes hold. We need to stand up together because as a majority we can make a difference. I hear people all the time in my city who are angered and very few believe in Bush but the message is not getting back to our government. The only way is to let our congress people now how we feel and it is their job as a representative to stand up for what the American people say, as a majority.