In October of 2001, CCIPS of the USDOJ issued guidance on the practical implications of the Patriot Act on investigation of computer crimes. These guidelines can be found at: http://www.usdoj.gov/criminal/cybercrime/PatriotAct.htm The article by Philipp Harper takes the Patriot Act to its most extreme. "By asserting that intelligence surveillance is a "significant" purpose of a wiretap, law enforcement officials whose real purpose is to gather evidence of a crime no longer have to show probable cause to obtain wiretap authority." First off, the statutes that he obliquely references are those that reflect the Foreign Intelligence Surveillance Act of 1978. The two statutes amended in the Patriot Act are 50 USC 1804 and 50 USC 1823. Both of these statutes target foreign powers or agents of foreign powers, not your plain Joe US citizen. Mr. Harper fails to include the other relevant portions of the statutes. Taken out of context, these amendments seem to indicate draconian action is being taken. (See Footnote 1 for an example) "Makes it easier to access Internet communications. To gain a court order permitting monitoring of an individual's Internet activity, law enforcement groups simply must certify to a judge that the information is "relevant to an ongoing criminal investigation." Once the required phrase is invoked, the judge has no choice but to grant the order." Mr. Harper fails to mention that this concerns an order for a pen trap and trace device. In addition, he fails to mention that an order must be given only "if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." Thus it has to be likely that relevant information will be found. e.g. it can't be a fishing expedition. Mr. Harper also implies that the change mandates a court order. If you read the statute before it was amended, it still required that a court order be granted. No big draconian change here. See http://www4.law.cornell.edu/uscode/18/3123.html In terms of domestic terrorism, Mr. Harper fails to include the rest of the definition. The relevant portion reading: Domestic terrorism means activities that: A. involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; B. appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States. Mr. Harper posits "even members of groups that exist to protest abortion, environmental or economic policies could be classified as terrorists." Yes, those groups would be targeted if they engage in behavior that is dangerous to human life (& are in violation of the laws) that appear to be intended to "coerce and intimidate." This gives the government the capability to designate groups such as the ELF (which engages in arson [a felony] and other destructive behavior) or the Army of God (which promotes the killing of medical personnel that perform abortions) as domestic terrorists. This is not squelching free speech, but is targeting dangerous behavior. I could go on about Mr. Harper's erroneous reporting, but for the sake of the reader and of my time, this is as far as I will go. Footnote 1 For example, under 50 USC 1804, each application for an order approving electronic surveillance under this subchapter has to be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803. The oath HAS to include the following information: the identity of the federal officer making the application, the authority to make the application, the identity (if known) or a description of the target of the electronic surveillance, and a statement of facts. The statement of facts and circumstances must outline the facts which justify the applicants belief that (a) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (b) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. The application must also include a detailed description of the nature of the information sought and the type of communications or activities subject to the surveillance. Furthermore the significant purpose of the surveillance is to obtain foreign intelligence information and that the information cannot be ---reasonably--- be obtained by normal investigative techniques. The amendment referenced by Mr. Harper only changes one aspect of the law. It does not release law enforcement from the other requirements of the statute. This is far from the suggestion that these are draconian measures. On Thursday, May 16, 2002, at 09:50 AM, Zot O'Connor wrote: > This came on another mailing list. It might make for some good > conversation, especially going into the PRS Program. > > > -----Forwarded Message----- > > > _____________________________________________________________________ > > A terrorist attack on your privacy > By Philipp Harper > MSN.Business > > We are winning all the battles, but we're in danger of losing the war. > > Time and again, we have been told that the war on terrorism is being > waged to safeguard the American way of life and the many personal > freedoms upon which it's based. But far from protecting this national > legacy, the war effort places those freedoms in jeopardy. > > Consider this scenario: You're on the Internet chatting with a friend. > Unbeknownst to you, law enforcement agents are "recording" every single > keystroke that you and your friend make, while keeping separate records > of your phone conversations. Meanwhile, your bankers and stockbrokers > are forced to turn off all your financial records. And when you leave > your office, you return to notice that some items seem out of place; > almost as if someone moved them. That's because they were moved using a > law pending in Congress that allows for secret searches of homes and > offices. > > For all the blows our splendid pilots and special forces operatives > strike against Taliban and al Qaeda fighters on the ground in > Afghanistan, the assault on civil liberties here at home is even more > profound. > > The perpetrators of this constitutional attack are not religious zealots > from abroad, but U.S. political leaders. Anti-terrorism legislation > passed in the wake of the Sept. 11 attacks — ostensibly intended to > protect us from further harm — makes us vulnerable to our own government > in unprecedented ways. > > > It could affect how we live our lives > > Sold as a simple updating of law enforcement tools — made necessary by a > new set of international and technological realities, it is argued — the > USA Patriot Act is every bit as draconian in its own way as the Alien > and Sedition Act of 1798 or the legislation that led to the internment > of Japanese-Americans during World War II. > > If exercised to its fullest extent, the new police powers could > dramatically affect how we lead our lives and go about our business in > the United States of America. That may sound like hyperbole, but it's > not, not when the full breadth of the act is considered. > > The problem is, most Americans consider the legislation only in part. > They believe, because they've been told, that the law is directed at > foreign-born terrorists who cross our borders to do us violence. While > the law does address that threat — and in ways that many people find > troubling, including the indefinite detention of non-citizens — it does > much, much more. > > The USA Patriot Act makes it easier for government officials to fling > aside the veil of privacy that protects our personal and financial lives > from too-easy scrutiny. And far from applying to only to the > foreign-born among us, every American citizen is at risk. > > > 'Preventing terrorism' becomes an excuse > > The American Civil Liberties Union, which, like the Cato Institute on > the political right, is alarmed by the bill's legal ramifications. (The > fact that these two groups agree on an issue should give you a hint of > its import.) The ACLU has identified the following provisions as > particularly troubling. > > Lowers the legal threshold for obtaining wiretap authority. By asserting > that intelligence surveillance is a "significant" purpose of a wiretap, > law enforcement officials whose real purpose is to gather evidence of a > crime no longer have to show probable cause to obtain wiretap authority. > Thus, "preventing terrorism" becomes a catch-all excuse for launching > what in the past clearly would have been unconstitutional searches. > > Makes it easier to access Internet communications. To gain a court order > permitting monitoring of an individual's Internet activity, law > enforcement groups simply must certify to a judge that the information > is "relevant to an ongoing criminal investigation." Once the required > phrase is invoked, the judge has no choice but to grant the order. > Again, the bar is being set well below the level of probable cause. > Armed with such an order, investigators can determine any and all Web > sites visited by an individual. > > Increases FBI access to sensitive business records. If the FBI is > conducting an "intelligence" investigation, it no longer has to show > evidence of a crime to obtain records about a person maintained by a > business. It merely must assert that the records it seeks are relevant. > By so doing, the agency can compel a business owner to turn over an > employee's educational, medical, financial, mental health and travel > records. > > Requires closer monitoring of daily transactions by financial > institutions. Financial institutions are required to share the > information they cull with federal agencies, including foreign > intelligence services such as the CIA. The law also allows law > enforcement and intelligence agencies to get easy access to individual > credit reports in secret. The law provides for no judicial review and > does not mandate that law enforcement give the person whose records are > being reviewed any notice. > > Expands the ability of the government to conduct secret searches. In the > past, secret searches were rare if they were permitted at all. A person > who does not know he is the subject of a search loses his ability to > take legal action to block it. Occasionally, law enforcement agents were > able to delay notification of a search, but that was about it. The new > anti-terrorism law stands this rule on its head. Now, the government is > able to have its request for a secret search considered in every > criminal case, not merely those involving allegations of terrorism. > > Creates a new crime of "domestic terrorism." Domestic terrorism is > defined as conduct that "involves acts dangerous to human life." Under > such a broad definition, even members of groups that exist to protest > abortion, environmental or economic policies could be classified as > terrorists. Moreover, anyone supporting such groups — say, by making a > cash donation — would be subject to prosecution; non-citizens who belong > to or support such groups would be subject to detention or deportation. > > Those in law enforcement who have had the will to more closely > scrutinize American citizens now have the legal way. They have the > technology, too. > > It was revealed recently that the FBI has developed a new technology — > code-named Magic Lantern — that allows eavesdropping software to be > installed covertly via the Internet. The software records every > keystroke on the target computer. > > While no one is suggesting that the Bush administration and its allies > in Congress seek to create a Kandahar on the Potomac, neither should > anyone minimize the threat to personal liberty when ever-more intrusive > technology is abetted by an overly accommodative legal posture. > > After all, the point of our new war is to protect freedom, not to see it > diminished. > > > =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ > > -- > Zot O'Connor > > http://www.ZotConsulting.com > http://www.WhiteKnightHackers.com > > > T. Kenji Sugahara Chief Operating Officer counterclaim Phone: 541-484-9235 Fax: 541-484-9193
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