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“Key New Surveillance Provisions”

“Key New Surveillance Provisions”. Professor Peter P. Swire Ohio State University Privacy 2001 Conference October 4, 2001. Distinctions in Current Law. Content v. pen/trap content and strict Title III pen register (who you called) trap and trace (who called you)

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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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