******* See: http://www.cybercrime.gov/searchmanual.htm ******* http://www.wired.com/news/politics/0,1283,41133,00.html The Feds'll Come A-Snoopin' by Declan McCullagh ([EMAIL PROTECTED]) 2:00 a.m. Jan. 12, 2001 PST WASHINGTON -- Ever wonder how much leeway federal agents have when snooping through your e-mail or computer files? The short answer: a lot. The U.S. Department of Justice this week published new guidelines for police and prosecutors in cases involving computer crimes. The 500 KB document includes a bevy of recent court cases and covers new topics such as encryption, PDAs and secret searches. It updates a 1994 manual, which the Electronic Privacy Information Center had to file a Freedom of Information Act request to obtain. No need to take such drastic steps this time: The Justice Department has placed the report on its cybercrime.gov site. [...] SECRET SEARCHES: Call it the latest trend in law enforcement: Surreptitious breaking-and-entering of homes and offices. In one recent secret-search case related to computers, the feds sneaked into the office of Nicodemo S. Scarfo, the son of Philadelphia's former mob boss, who allegedly ran a loan shark operation in north New Jersey. Once there, they secretly installed software to sniff Scarfo's PGP passphrase so they could decrypt his communications. Civil libertarians argue secret searches are unconstitutional. "Sneak-and-peek searches may prove useful in searches for intangible computer data. For example, agents executing a sneak-and-peek warrant to search a computer may be able to enter a business after hours, search the computer, and then exit the business without leaving any sign that the search occurred," the Justice Department says. The DOJ argues that secret searches are permissible, despite rule 41(d) of the Federal Rules of Criminal Procedure, which requires agents to notify the person whose home or office has been broken into. But the document admits that courts have "struggled" to reconcile this idea with the U.S. Constitution's privacy guarantees. To clear up any doubt, in mid-1999 the Justice Department proposed legislation that would let police obtain surreptitious warrants and "postpone" notifying the person whose property they entered for 30 days. After vocal objections from civil liberties groups, the administration backed away from the controversial bill. In the final draft of the Cyberspace Electronic Security Act submitted to Congress, the secret-search portions had disappeared. [...] ENCRYPTION: The manual doesn't address whether a criminal defendant can be compelled to give up his passphrase to allow prosecutors to decrypt his files. But it does give one good reason to use useful software like PGPdisk (available for free at pgpi.com) that can create an encrypted hard drive partition that requires a passphrase to access. Under current law, anyone with access to the computer you use -- including your spouse -- can allow the feds to search it without a warrant. (Unless your files are stored on a remote computer on a network, in which case it gets more complicated.) But if your files are encrypted, you might be better off. "It appears likely that encryption and password-protection would in most cases indicate the absence of common authority to consent to a search among co-users who do not know the password or possess the encryption key," the Justice Department says. [...]
