February 9, 2006 5:46 PM PST

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."

See more CNET content tagged:
USA PATRIOT Act, Police Blotter, prosecutor, surveillance, electronic communication

53 comments

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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.
Posted by Bill Dautrive (1179 comments )
Reply Link Flag
agree big ick
I concur, these NSA, spying, eavesdropping stories are unsettling. I'd love to hear your discourse on this CNet New.com story - <a class="jive-link-external" href="http://news.cbsi.com/Former+CIA+chief+expresses+doubt+about+NSA+program/2100-1036_3-6037321.html?tag=nl" target="_newWindow">http://news.cbsi.com/Former+CIA+chief+expresses+doubt+about+NSA+program/2100-1036_3-6037321.html?tag=nl</a>

Level heads do not abound there. Apparently some are in denial of how the American populace (no matter how small or large) is being infringed upon.
Posted by marileev (292 comments )
Link Flag
Please install a "Recommend" read button
Bill , I would give you 40 recommends if they had a button. I could not have said it better, myself. Thank you
Posted by carolinabell1860 (1 comment )
Link Flag
The Un-Patriot Act
The whole unpatriotic Patriot Act should be repealed. The wars we've fought, and any we fight in the future, are to protect our liberty and freedom. This country has NEVER accepted sacrificing all of our liberty for the sake of security. Whatever happened to "give me liberty, or give me death"?

This biggest threat to our liberty is not Islamic Terrorists. It's the Bush Corporatocracy.
Posted by unlawflcombatnt (4 comments )
Link Flag
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 ?
Posted by timfox123 (4 comments )
Reply Link Flag
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 supportthetroops@army.us.mil, or go to the web page <a class="jive-link-external" href="http://donate.prayforpeace.org," target="_newWindow">http://donate.prayforpeace.org,</a> 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!
Posted by kingwr (31 comments )
Reply Link Flag
Address not equal content
The web/email address does not equal content. The email/web address is analogous to a 1-800-somecoolphrase number. The number itself does not have anything to do with the content of the phone call. All it revels is that a conversation occured between the two or more parties which may or may not have any relation to the given name. This is the basis of a pen record. The same is true of the web address. A phone number is just the way to route a call between stations (phone hand sets). The web/email address is no different. It is simply a method to route a message between parties.
Posted by mavric315 (1 comment )
Link Flag
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...)
Posted by Zaphod_Beeblebrox (12 comments )
Reply Link Flag
This is why 9/11 happened
All the scanning of email is going to do is let the bad guys turn the good guys into criminals under false pretenses.
Posted by casper2004 (267 comments )
Link Flag
Oh please
The only reason we are at war is b/c Bush and his supporters wanted us to be.

This stuff isn't new, it's just the American people don't care and are scared by the propaganda the news stations spew constantly at them.

What are they going to do with this information? Look for suspicious email addresses and start tracking them? What usefulness will this information provide to catching terrorists?

They that can give up essential liberty to purchase a little temporary safety deserve neither liberty or safety. --Benjamin Franklin

Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote! --Benjamin Franklin

America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves. -Abraham Lincoln
Posted by dingleberry420 (21 comments )
Link Flag
You are more than a little mistaken
We are not at war. Iraq has been conquered, just ask Saddam. Afghanistan has likewise been conquered.

Yes, privacy and domestic liberty are more valuable than life. Without them your life isn't worth much. So you take a liettle extra risk to keep your privacy, that's an acceptable risk, considering the alternative.

The USA may yet become the USSR of the future.
Posted by Slamlander (4 comments )
Link Flag
What war?
War? So far we have a criminal act perpetrated by eleven men, from Saudi Arabia and Egypt, who slipped through the checkpoints because the FBI fumbled their overstayed visas and suspicious activity, which had been reported by citizens and by the FBI's own agents.

Why should the government have _more_ power when it hasn't effectively used what they already had.

Oh, yeah, the soldiers. Tell me again why we didn't finish the war against the Taliban and the terrorist organization they sponsored? To go after Saddam, who had nothing to do with the hijacking?

This isn't a war against a foreign enemy. It's a war by this government against the constitution, and they grasp every chance they can get their greasy little hands on to undermine constitutional government in this country.

And don't tell me they're not intersted in my silly little emails. Nixon tapped my phone because I spoke out against him. I expect I'll be among the first to go to the camps when W. sets them up for political prisoners.

Bush and Cheney, and the way they undermine the rule of law, are the real enemies here. Anyone, Repoublican or Democrat, who fails to uphold the constitution endangers our country far more than a few terrorists.
Posted by foxwizard (3 comments )
Link Flag
carnivore? bad example buddy...
This has noting to do with Clinton. Remember that congress was dominated by the GOP and the neocons were hounding him everyday with bullsh!t news that wasn't true.

Carnivore was pushed and backed by the FBI, not the NSA or the executive administration. In fact it was a complete failure that cost the taxpayer millions.

What is happeining here is not sniffing of packets, it's pure unadulterated intrusion by the FBI and NSA because they failed in their investigative and analysis skills. They can't go into your house and sift through your paper files without a warrant, but they can now track and read what you do anytime of the day electronically.

There have been tons of cases in the past when people's lives have been ruined because of shoddy police work. This makes it all the easier for those gov't workers who got C's in college to make the wrong decisions and screw over an innocent citizen.
Posted by Bush.Sux (10 comments )
Link Flag
Clinton had no ethics
IMO Clinton had little to no ethics. America chose intelligence over character. Unfortunately, I don't think they learned anything.

On one hand:

"Any country that would give up a little liberty to gain a little security deserves neither and will lose both." - Benjamin Franklin

On the other hand:

They didn't have nukes in Ben's day. It wasn't possible for one person with the right technology to kill 10 million in one instant.

If this law keeps the unthinkable from happening it was obviously worth it and necessary. If it wasn't necessary to keep the unthinkable from happening, it's a great injustice. How can we possibly tell which it was until after the fact?

My 2 cents...
Posted by pwinterrowd (18 comments )
Link Flag
Wake up america!
The government is interested in everybody's email because than they can stifle dissent by taking people broke. It's easier to rule the world after you suck americans finances dry.
Posted by casper2004 (267 comments )
Link Flag
Okay...well then...
Could you show me the congressional record where congress Declared War?
Posted by mariusthull (67 comments )
Link Flag
What War are you talking about?
Let's see now, in this corner we have 300 million plus people, along with a vast territory and trillions of dollars in resources.

In the other corner we have maybe 3,000 so called terrorists, most illiterate, many broke and the rest with little money.

So we say it's a War?

Something is wrong here, even for you humans. What we need is more police officers trained in anti-terrorist methods and more communication between current police agencies, including Interpol. Hey, humans, it's a police matter, you know,those guys in blue uniforms and black suits with sunglasses.

One point I haven't seen pointed out yet is that it takes a war footing for the Feds to call out the National Guard. They can call up the Reserves at any time, but the NG is a State agency. I know, since I was once in the famous Rat Commandos in Vietnam.

Oscar Rat
Posted by Oscar Rat (54 comments )
Link Flag
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...
Posted by solarflair (35 comments )
Reply Link Flag
Americans really are as stupid as Michael Moore says
I see the government has really bamboozled you into believing what they tell you. That's the problem with this country.
Posted by casper2004 (267 comments )
Link Flag
Encrypted Email
How will they see encrypted e-mail? They dont have the certificate.
Posted by Rexerito (1 comment )
Reply Link Flag
Technology will make the world President Bush's oyster.
They have more than you think they've got.
Posted by casper2004 (267 comments )
Link Flag
Encryption vs. Rights Management
There is are differences between encryption and rights management.

While software solutions will vary from software producer to software producer, encryption protects email in transit. Rights management protects it even after it's stored on your computer or someone else's.

If the government did subpoena an organization, a Chief Compliance Officer, Risk Officer and/or IT/Operations Officer would be able to provide such sensitive information.

Companies like ours provide education to business enterprises - <a class="jive-link-external" href="http://www.essentialsecurity.com/technical_sheets.htm" target="_newWindow">http://www.essentialsecurity.com/technical_sheets.htm</a>
Posted by marileev (292 comments )
Link Flag
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.
Posted by JackfromBerkeley (136 comments )
Reply Link Flag
bleah
"Stole the last two elections..."

Sorry, but as an independent it seems to me this statement's only purpose is to inflame the situation. It's all I've heard from my democratic friends for far too long and the evidence I've examined is actually to the contrary.

Republicans are in bed with big business. They need to pass campaign finance reform.

Democrats are in bed with the lawyers. They need to reform our legal system so judgements are limited and appropriate.

Both are in bed with special interest groups. Both sides need to pass campaign finance reform to help deal with this.

I will agree, in spirit, with one thing you said: People usually get the leaders they deserve. It's time we stood up and demanded campaign finance reform as a good first step IMO. Simply put, we can't afford the cost of corruption in our government.

My 2 cents...
Posted by pwinterrowd (18 comments )
Link Flag
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.
Posted by freq (121 comments )
Reply Link Flag
Obviously,....
... you never worked for Microsoft, right?
Posted by Earl Benser (4310 comments )
Link Flag
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.
Posted by Michael G. (185 comments )
Reply Link Flag
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.
Posted by Bush.Sux (10 comments )
Reply Link Flag
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.
Posted by Michael G. (185 comments )
Reply Link Flag
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...
Posted by Earl Benser (4310 comments )
Reply Link Flag
True...
But just remember that almost every type of article brings out a "foaming at the mouth" reaction from someone, whether political, technical, or otherwise. Though I'll admit---there seems to be less actual debate to go around...and what debate there is seems rather "reserved" of late.
Posted by Michael G. (185 comments )
Link Flag
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.
Posted by BogusName (33 comments )
Reply Link Flag
actually CNET *has* covered
Here's one article from Feb 8:
<a class="jive-link-external" href="http://news.cbsi.com/2061-10796_3-6037055.html" target="_newWindow">http://news.cbsi.com/2061-10796_3-6037055.html</a>

And here's a roundup of *eight* more articles on the topic from Wednesday:
<a class="jive-link-external" href="http://news.cbsi.com/Capitol+Hills+fury+on+China/2009-1028_3-6040291.html" target="_newWindow">http://news.cbsi.com/Capitol+Hills+fury+on+China/2009-1028_3-6040291.html</a>
Posted by declan00 (848 comments )
Link Flag
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.
Posted by Macsaresafer (802 comments )
Reply Link Flag
I spent 14 years in the military...
You are a fool.
Posted by solarflair (35 comments )
Link Flag
We are at war
It's a secret one that OUR government is waging against america. It's about dragging us to a new world order. Once they get americans under the thumb, the world would become their oyster.
Posted by casper2004 (267 comments )
Link Flag
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.
Posted by angelxspress35 (2 comments )
Reply Link Flag
Freedom ended when the founding fathers died.
They just forgot to install future generations to fight the new world orderites.
Posted by casper2004 (267 comments )
Link Flag
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.
Posted by angelxspress35 (2 comments )
Reply Link Flag
DId you ever hea of Huey Long?????
Tammany Hall?
Bill Langer?

Now there was corruption that actually worked. You wanted
something, it cost you, but it got done. Now if you want something,
it costs you, and nothing gets done.
Posted by Earl Benser (4310 comments )
Link Flag
 

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