re: #74 Spocomptonite

Section 216 of the USA PATRIOT Act would extend this low threshold of proof to Internet communications that are far more revealing than the numbers dialed to or from a telephone, and to portions of e-mail communications that cannot readily be separated from content. Section 216 gives law enforcement agents who obtain pen register and trap and trace orders access to “dialing, routing and signaling information.” The bill does not define those terms. They would apparently apply to law enforcement efforts to determine what websites a person has visited. This is like giving law enforcement the power — based only on its own certification — to require the librarian to report on the books you had perused while visiting the public library. This is extending a low standard of proof — far less than probable cause — to “content” information even while Section 216 purports to exclude content.

The contents of a telephone call are readily separated from the telephone numbers dialed to and from a telephone. However, the same cannot be said of an e-mail address and the contents of an e-mail message. This information moves together in packets. To execute the pen register and trap and trace orders authorized by Section 216, somebody must separate the e-mail address from the contents of the e-mail message of the target. The FBI’s answer to this problem is troubling. It obtains access to the entire message. Then, it asserts that it can be trusted to separate the addressing information to which it would be entitled under a pen or trap and trace order from content, and retain only the addressing information.

Moreover, the FBI sometimes uses the “Carnivore” Internet surveillance system to perform this function. Carnivore gives the FBI access not only to all of the target’s communications, but to the communications of non-targets as well, who use the same Internet Service Provider as does the target. Section 216 would worsen the problem by giving the FBI access to communications of non-targets and to portions of the target’s communications to which it is not entitled under the court order it obtained. The “trust us, we’re the government” solution the FBI proposes is entirely unacceptable and inconsistent with the Fourth Amendment. While Section 216 requires reports on the use of Carnivore, it will likely result in more use of the system.

911-strike.com