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“Key New Surveillance Provisions”

This summary covers the proposed changes to surveillance provisions, including distinctions in current laws, updates to pen/trap provisions, and the Computer trespasser exception. It discusses the implications for online privacy and security and the need for balancing law enforcement capabilities with individual rights in the digital age.

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“Key New Surveillance Provisions”

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  1. “Key New Surveillance Provisions” Professor Peter P. Swire Ohio State University Privacy 2001 Conference October 4, 2001

  2. Distinctions in Current Law • Content v. pen/trap • content and strict Title III • pen register (who you called) • trap and trace (who called you) • pen/trap if relevant to an investigation • Title III and FISA • Foreign intelligence orders from special court • FISA orders not revealed after the fact

  3. Proposed Changes to Pen/trap • Update telephone language • “device” to “device or process” • Telephone number to broader Internet uses • “Dialing, routing, addressing, or signaling” • Nationwide trap and trace • Multiple orders now required for e-mail

  4. Computer trespasser exception • Current law: • ISP can monitor its own system • ISP can give evidence of yesterday’s attack • ISP cannot invite law enforcement in to catch the burglars • Problem for: • DOD and many hack attacks • small system owners who need help

  5. Computer trespasser proposal • Law enforcement can “surf behind” if: • Targets person who accesses a computer “without authorization” • System owner consents • Lawful investigation • Law enforcement reasonably believes that the information will be relevant • Interception does not acquire communications other than those transmitted to or from the trespasser

  6. FISA proposals • Roving wiretaps • Suspects use multiple phones and computers • Sharing with law enforcement • Currently, FISA only if foreign intelligence gathering is the principal purpose • Proposed, if it is “a” purpose (Bush) or “a significant” purpose (House)

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