Re: [ISN] House's anti-terror bill requires judge to monitor FBI ...

From: InfoSec News (isnat_private)
Date: Mon Oct 29 2001 - 00:51:18 PST

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    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  
    The latest developments on this legislation are at:
    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 
    Section 210
    Governs the scope of subpoenas for records of electronic 
    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 
    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
    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
    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.
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