| http://www.wartimeliberty.com/articles/01/09/19/191255.shtml
Wiretap Laws and FBI's Proposals Explained posted by admin on Wednesday September 19, @01:58PM from the you-always-wanted-to-understand-fisa-right? dept. 
You'll be hearing a lot about wiretapping laws -- current and proposed future ones -- in the next few days, and the Center for Democracy and Technology has created something of a primer on them. It's not for the faint of heart, perhaps, but it does explain what the bills in Congress might do. You can read it below. As expanded wiretap authorities are proposed in response to the September 11, 2001 terrorist attacks, it is useful to first understand the current laws on electronic surveillance. Contrary to some of the assertions being made in support of new authorities, federal agencies already have broad legal powers to carry out wiretaps of telephone conversations, e-mail, pagers, wireless phones, computers and all other electronic communications and communications devices.
Following is a brief summary of current law. Further details appear at:http://www.cdt.org/wiretap/wiretap_overview.html Government Wiretap Authority There are two sources of authority for wiretapping in the US. (1) The Federal Wiretap Act, adopted in 1968 and sometimes referred to as Title III, normally requires, before a wiretap can commence, a court order issued by a judge who must conclude, based on an affidavit submitted by the government, that there is probable cause to believe that a crime has been, is being or is about to be committed. Terrorist bombings, hijackings and other violent activities are crimes for which wiretaps can be ordered. (Some relatively new criminal statutes on terrorism had not, as of Sept. 11, been added to the list of "predicate" crimes for which wiretaps could be ordered.) The government can and frequently does wiretap in advance of a crime being perpetrated. Judges almost never deny government requests for wiretap orders. (2) The Foreign Intelligence Surveillance Act of 1978 allows wiretapping of aliens and citizens in the US based on a finding of probable cause to believe that the target is a member of a foreign terrorist group or an agent of a foreign power. For US citizens and permanent resident aliens, there must also be probable cause to believe that the person is engaged in activities that "may" involve a criminal violation. Suspicion of illegal activity is not required in the case of aliens who are not permanent residents. -- Electronic Surveillance Overseas Finally, it is worth noting that there are no legislative limits on US government electronic eavesdropping carried out overseas. Neither Title III nor FISA have any application to intelligence collection activities outside the US. The legal authority for electronic surveillance outside the US is contained in Executive Order 12333 issued by President Reagan in 1982, still in effect today. Intelligence agencies do not need a court order to intercept communications outside the US. If a United States citizen or US permanent resident alien is targeted for surveillance abroad, the Executive Order requires the approval of the Attorney General. By internal guideline, the Attorney General must find that there is probable cause to believe that the US person who is the target of the surveillance is an agent of a foreign power. Decisions to target non-US persons are left to the intelligence community. And the vacuum cleaner approach that does not involve targeting of US persons also requires no approval from outside the intelligence community, although there are limits on the dissemination of information about US persons that is collected "incidental" to an intelligence collection activity. -- Emergency authority Both Title III and FISA allow the government to carry out wiretaps without a court order in emergency situations involving risk of death or serious bodily injury and in national security cases. -- Roving taps Under Title III, the government has "roving tap" authority, meaning that it can get a court order that does not name a specific telephone line or email account but allows the government to tap any phone line, cell phone or Internet account that a suspect uses. This authority was initially adopted in 1986 and was substantially broadened in 1999. Roving taps are relatively rare. In 2000, 27 roving taps were approved. Of those, seven were for federal investigations: three for use in drug offense investigations, one in a murder investigation, one in a gambling investigation, one in a racketeering investigation, and one in a firearms investigation. On the state level, 20 roving wiretaps were reported; 60 percent (12 applications) were authorized for use in drug offense investigations, 10 percent (2 applications) in bribery investigations, and the remainder (six applications) in investigations of other offenses. The 2000 Wiretap Report , issued in April 2001, is available online at:http://www.uscourts.gov/wiretap00/contents.html -- Encryption Beginning with the 2000 Wiretap Report, the government is required to report on the number of wiretap applications granted in which encryption was encountered and whether such encryption prevented law enforcement officials from obtaining the plain text of communications intercepted pursuant to the court orders. In 2000, no federal wiretaps reported that encryption was encountered. For state and local jurisdictions, encryption was reported to have been encountered in 22 wiretaps in 2000; however, in none of these cases was encryption reported to have prevented law enforcement officials from obtaining the plain text of communications intercepted. Transactional Data - Who Is Calling Whom The government also has authority to track who is calling whom. This is done in real time through so-called pen registers and trap and trace devices, which in the world of telephones collect the numbers dialed on outgoing calls and the telephone numbers indicating the origin of incoming calls. A pen register produces a readout a little like a local version of your long distance phone bill; a trap and trace device is a little like Caller ID. A 1986 federal law requires a court order for use of such devices, but the standard for approval is so low as to be nearly worthless - a prosecutor does not have to justify the request and judges are required to approve every request. These orders apply to email and other Internet activity, although it is not clear what is the Internet equivalent of the dialing information that must be disclosed. In crucial respects, Internet addressing information can be far more revealing than telephone dialing information - not only does it reveal the precise parties who are communicating, but it can even reveal the meaning or content of communications. Federal law enforcement agencies conduct roughly 10 times as many pen register and trap and trace surveillances as they do wiretaps. In 1996, the Justice Department components alone obtained 4,569 pen register and trap and trace orders. Most orders covered more than one line: in 1996, 10,520 lines were surveilled by pen registers or trap and trace devices. So much information is collected that Justice Department agencies have developed several generations of computer tools to enhance the analysis and linking of transactional data from pen registers and trap and trace devices. For more information about proposals to amend the pen register statute, see:http://www.cdt.org/security/000404amending.shtml The government also has the authority to subpoena stored transactional data, from both telephone companies and ISPs and OSPs. Telephone companies keep long distance records for billing purposes and in some circumstances can also retrieve logs of local calls -- these records show the date, time, destination and duration of outgoing calls. CONTACT:Mike Godwin, Policy [EMAIL PROTECTED] |
