Forwarded from: Marjorie Simmons <lawyerat_private> The President is scheduled to sign H.R. 3162 into law today. Below are some of the sections of H.R. 3162 that have an impact on hacking and related activities that will be at issue in litigating cases involving such activities. As you may already be aware, it is due process that takes the biggest hit. Most of H.R. 3162 relates to authority for wiretap, money- laundering activities, foreign nationals, and criminal law. The bill also incorporates some provisions in an attempt to respect concerns of the technology community but these are, as are all the provisions of this legislation, yet untested. It remains to be seen how effective such provisions are in addressing privacy and due process. The CDT's "Policy Post 7.10" on the Surveillance Bills provides some (pre-bill passing) analysis at http://www.cdt.org/publications/pp_7.10.shtml. The latest developments on this legislation are at: http://www.cdt.org/security/010911response.shtml. Sections of interest: TITLE I Enhancing Domestic Security Against Terrorism Section 105 Expands National Electronic Crime Task Force Initiative. Section 106 On Presidential Authority, amends Section 203 of the International Emergency Powers Act (50 USC 1702) and includes insertion at the end the following: Classified Information.--In any judicial review of a determination made under this section, if the determination was based on classified information (as defined in section 1(a) of the Classified Information Procedures Act) such information may be submitted to the reviewing court ex parte and in camera. This subsection does not confer or imply any right to judicial review. TITLE II Enhanced Surveillance Procedures Section 208 Covers designation of judges. (BTW, there are currently over a hundred federal judgeship vacancies and about 12 nominees whose nominations are pending.) Section 209 Addresses the seizure of voice-mail messages pursuant to warrants. Section 210 Governs the scope of subpoenas for records of electronic communications. Section 211 Attempts to clarify that statutes governing the wiretap requirements on telephone and internet communications apply equally to cable companies that provide internet or telephone service in addition to television programming; The DMCA will come into play here. Section 212 Allows technology providers to disclose communications and records of communications to protect life and limb and says that victims of computer hacking can disclose non-content records to protect their rights and property; Section 213 Authority for delaying notice of the execution of a warrant. Section 214 & 215 Pen register and trap and trace authority and access to records and other items under the Foreign Intelligence Surveillance Act. Section 216 On the modification of authorities relating to use of pen registers and trap and trace devices. Generally allows nationwide pen register and trap-and-trace orders and includes prohibitions on law enforcement obtaining content of email and other communications. Also requires reporting by law enforcement to a court each time a monitoring device is installed on a packet-switched data network. Section 217 Interception of computer trespasser communications. Allows targets of hacking (such as ISPs) to request law enforcement assistance in monitoring their computers to track the activities of trespassers who do not have contractual relationship with the target. Section 219 Single-jurisdiction search warrants for terrorism. Section 220 Authority for nationwide service of search warrants for electronic evidence. Section 222 Protects communications providers from having to develop or deploy new technology as a result of the bill, and assures that they will be reasonably compensated for their compliance with wiretap demands; Section 225 Grants immunity from civil liability to persons who furnish information in compliance with a Foreign Intelligence Surveillance Act order; TITLE III International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 Subtitle A International Counter Money Laundering and Related Measures Section 312 Special due diligence for correspondent accounts and private banking accounts. Section 322 Governs rules when a corporation is represented by a fugitive. Subtitle B Bank Secrecy Act Amendments and Related Improvements Section 355 Authorizes mention of suspicions of illegal activity in written employment references. Uses the words 'possible involvement' with regard to activities while employed by a bank. ("You want to hire Jo Schmo and he gave us as a reference? Well, we suspect he MIGHT possibly have been involved in some illegal funds transfers, but we're not sure. However, he was otherwise a competent employee.") TITLE VIII: Strengthening the Criminal Laws Against Terrorism Section 814 Governs deterrence and prevention of cyberterrorism. Makes changes to hacking law, including extra-territorial jurisdiction, amending the definition of loss to include more types of hacking activity and ensuring stiff penalties for offenders. Amends the term 'damage' to mean "any impairment to the integrity or availability of data, a program, a system, or information". Section 815 Creates a legal defense for persons who disclose wire or electronic communications records in response to the request of a governmental entity. Affects follow-on suits for defamation and abuse of process. _ - _ - _ - _ - _ - _ - _ This legislation, overall, considerably ups the ante for due diligence, and will keep lawyers busy for many years to come. Marjorie Simmons, Esq. lawyerat_private http://www.carpereslegalis.com - ISN is currently hosted by Attrition.org To unsubscribe email majordomoat_private with 'unsubscribe isn' in the BODY of the mail.
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