********** From: "Jim Harper - Privacilla.org" <jim.harperat_private> To: <declanat_private> Subject: Re: More on Feds can secretly get info on cable modem owners Date: Thu, 23 Aug 2001 14:46:13 -0400 Declan: Your .gov respondent doesn't dispute that Feds can secretly get info on cable modem owners. Your Subject: line accurately summarizes the state of the law in light of this case. If it's shocking to people, so be it. Law enforcement and privacy are in natural and constant tension. Several federal laws with 'privacy' in their titles deprive people of control over information and the power to protect privacy as they see fit. Surveillance of the type approved by EC'P'A is one of several ways that law and regulation undermine privacy. Jim Jim Harper Privacilla.org ********** From: "Bridis, Ted" <Ted.Bridisat_private> To: "'declanat_private'" <declanat_private> Subject: RE: More on Feds can secretly get info on cable modem owners Date: Thu, 23 Aug 2001 14:28:00 -0400 If you remember, the Clinton White House had sought to have Congress resolve this issue in his final months. Updating of Wiretap Law for E-Mail Age Is Urged by the Clinton Administration By Ted Bridis Staff Reporter of The Wall Street Journal 07/18/2000 The Wall Street Journal A3 (Copyright (c) 2000, Dow Jones & Company, Inc.) WASHINGTON -- The White House is urging changes in U.S. law to make it easier for authorities to eavesdrop on Internet communications such as electronic mail, updating what the government described as wiretap laws written for an earlier era. The administration said that the changes would enhance legal privacy protections because they would require, for example, approval by senior Justice Department officials before the Federal Bureau of Investigation could use software surveillance, such as its "Carnivore" system. That approval already is required in cases where law enforcement wants to monitor telephone conversations. The changes require U.S. judges to suppress electronic evidence obtained by illegal wiretap; current law mandates suppression in such circumstances of only oral or written communications, not e-mail. The proposals were all made by the Justice Department in a March study that identified what the government said were deficiencies in enforcing laws against crimes on the Internet. The American Civil Liberties Union said the White House announcement was "deeply disappointing," because it did not include any promise to suspend use of Carnivore, which the group charged gives the government "unsupervised access to a nearly unlimited amount of communications traffic." The Internet Alliance, a Washington trade group for Internet providers, said the White House proposals "make sense," but also warned that its member companies "should not be deputized," spokesman Jeff Richards said. The proposals were announced at the same time that the administration relaxed restrictions on the export of powerful encryption technology to the European Union and to Australia, Norway, the Czech Republic, Hungary, Poland, Japan, New Zealand and Switzerland. White House Chief of Staff John Podesta said the change, which will benefit some U.S. hardware and software firms, was not offered in exchange for the high-technology industry's support of the White House wiretap proposals. "We've never tried to link those two," he said. The White House also sought to give authorities undisputed access to the Internet traffic of roughly 2.2 million consumers using cable modems. And it proposed making it easier for police to obtain court orders to trace the transmission and receipt of Internet data nationwide without asking permission from a judge in every jurisdiction the data passes through. Another change would give judges greater latitude in denying those requests. But in extraordinary cases, such as an attack by hackers, the FBI could perform tracing, then obtain court approval as much as 48 hours later. A legal dispute continues between Internet providers and law enforcement. The nation's cable Internet providers have argued that they are not required under the U.S. Cable Act to turn over subscriber information without giving customers the opportunity to fight the disclosure in court. However, the Justice Department argues it is entitled to cable Internet data under the Electronic Communications Privacy Act without warning the customer in advance about its proposed surveillance. U.S. District Judge J. Young of Boston called the dispute "a thorny and important issue" in a case last year, in which he ordered an unidentified cable Internet provider to turn over the customer's records. Judge Young acknowledged that his decision should not be read too broadly, saying that it was "not the day to resolve such ephemeral puzzles." Mr. Podesta said the administration's proposals would continue to prohibit disclosure of which broadcasts a cable customer views on television. With only weeks left before Congress adjourns, the administration is asking Congress to approve its proposals, though Mr. Podesta predicted, "we can work to get them done this year." Variations of some proposals already are in competing bills in the Senate Judiciary Committee. ********** Subject: RE: Feds can secretly get info on cable modem owners, judge says Date: Thu, 23 Aug 2001 11:05:47 -0700 From: "Clinton D. Fein" <clinton.feinat_private> To: <declanat_private>, <politechat_private> Based on the opinions of the Fifth Circuit Court of Appeals in United States v. ApolloMedia, it seems that with regard to 18 U.S.C. § 2705(b) "the statute under which the government obtained this order, however, only allows nondisclosure orders 'if there is reason to believe that notification of the existence of the court order will ... endanger[] the life or physical safety of an individual; [prompt] flight from prosecution-, [threaten] destruction of or tampering with evidence; [risk] intimidation of potential witnesses; or otherwise seriously jeopardiz[e] an investigation,' and only '"for such period as the court deems appropriate"' to prevent those possibilities. The onus rests upon the government to demonstrate as much to the court. (http://www.ejournalism.com/usapollo/) In United States v. ApolloMedia, the difference was that "ApolloMedia, its agents, and affiliates" were prohibited from discussing THE ORDER with "any ... person ... until authorized to do so" by the Court. In the Cablevision case, Cablevision has at least been able to mention the mere existence of the court order. The question is how much information might Cablevision be able to reveal before it theoretically jeopardizes the "integrity of the investigation." (I've always loved the irony of the use of that phrase by law enforcement). The other major difference was that in United States v. ApolloMedia we sought to lift the gag order in our capacity as a publisher, rather than as a service provider, although Cablevision's subsidiary, Rainbow Media Holdings, Inc. delivers "an all-in-one package of news, sports and entertainment to entertain, educate and empower customers in today's multi-platform world." If they fight the order as a publisher they could argue, as we did, that the "Order constitutes an unconstitutional prior restraint of speech protected by the First Amendment. See New York Times v. United States, 403 U.S. 713, 714 (1971) (impermissible prior restraint against publication of Pentagon Papers even though majority of the justices believed that publication would probably be harmful to national security; any prior restraint bears "a heavy presumption against its constitutional validity"); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 ("prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights"); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 844-45 (1978) ("this Court has consistently rejected the argument that [out-of-court statements on pending cases or grand jury investigations] constituted a clear and present danger to the administration of justice"); Worrel Newspapers of Indiana v. Westhafer, 739 F.2d 1219, 1224-1225 (7th Cir. 1984), affirmed, 469 U.S. 1200 (1985) (holding unconstitutional a state statute subjecting to criminal punishment any person who published names of persons against whom a sealed indictment or information was filed); Procter & Gamble, 78 F.3d at 225 ("gagging of publication has been considered acceptable only in 'exceptional cases'"). It will be an interesting case to watch, certainly to see if it ultimately constitutes an "exceptional case". Clinton _______________________ Clinton Fein President ApolloMedia Corporation 370 7th Street, Suite 6 San Francisco, CA 94103 VOICE: 415-552-7655 FAX: 415-552-7656 http://apollomedia.com/ _______________________ ********** ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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