“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)– pen/trap if relevant to an investigation

Title III and FISA– Foreign intelligence orders from special court– FISA orders not revealed after the fact

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

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

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

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)