Forwarded with permission.
- ------- Forwarded Message
Date: Tue, 18 Jul 2000 11:12:53 -0400
From: Jim Dempsey <[EMAIL PROTECTED]>
Subject: Re: Cable modems [and 3 other issues]
Content-Type: text/plain; charset="us-ascii"
X-UIDL: b0cc4cc95b26f95a009e04565225d9bb
Sorry for the long post. Four points:
1. Cable modems
2. Current standards for email intercepts
3. Pen registers for the Net.
4. CALEA for the Net.
1. Cable modems. The Cable Act of 1984 (47 USC 551) establishes one
of the strongest privacy standards on the books: a "cable operator" can
disclose to the gov't personally identifiable information concerning a
subscriber only pursuant to a court order AND only if the subject of the
information is first afforded the opportunity to appear and contest the
government's application.
Notice, of course, is what the government hates.
This rule was fine for the one-way service of delivering video content, and
the Admin announcement yesterday would leave it intact.
In contrast, under Title III as amended by ECPA, the government can
intercept two-way voice or electronic communications over copper wires,
DSL, fiber, wireless phone or wireless modem with a court order issued
WITHOUT notice to the target of the interception. (In fact, wiretap orders
universally prohibit the service provider from notifying the subscriber of
the intercept.)
Thus the question: if the government serves a Title III order on a cable
company offering cable modem service, is the cable company required by the
Cable Act to advise the target and afford him an opportunity to contest the
application?
I always thought that a cable company offering two-way communication was
covered by Title III rahter than the Cable Act, but the answer was not
clear enough for the Justice Dept. Hence the proposed change: when the
government seeks information about cable viewing from a cable company, it
follows the Cable Act, when the government want to intercept voice or
email, it follows Title III. Which is it when the subscriber orders pay
for view or changes their cable package online - I don't know.
2. Michael Froomkin - U.Miami School of Law" writes:
>"The most sweeping part of the Podesta address was a call for a thorough
>rethinking of the Fourth Amendment's protection against unreasonable
>search and seizure in the Internet age. Electronic mail transmitted by
>high-speed connections such as DSL modems, Podesta's speech argued, has
>never enjoyed the legal protections the law gives to telephone
>conversations -- or to slower dial-up modems under the Electronic Privacy
>Communications Act of 1984."
>
>Huh? Since when is voice over IP not fully protected over DSL? Or email?
>Anyone have any idea what this refers to?
What Podesta really said is that electronic mail, whether over analogue
lines or DSL, has never enjoyed **ALL** of the legal protections the law
gives to telephone conversations. From 1968 to 1986, the wiretap law
covered only wire (limited to voice) and oral (face-to-face)
communications. When ECPA amended the wiretap law in 1986, it added the
word "electronic" to the phrase "wire or oral" most but not all places it
appeared. Three exceptions: (1) the statutory suppression rule,
prohibiting use in court of illegally intercepted communications, only
applies to wire and oral, not electonic communications; (2) approval of a
high-level Justice Department official is required for filing an
application for interception of wire or oral communications, while any
prosecutor can file an application for interception of email; (3)
interception of wire or oral can be sought only in investigations of a
statutory list of about 100 serious or politically popular crimes (making a
false statement on a passport application is an example of the latter),
while email can be intercepted in the course of any investigation.
The porposal would raise email to the higher standards applicable to voice
since 1968.
However, most email up until recently has been intercepted not in real-time
but retrospectively from the service provider while it sits in storage on a
server, under a separate procedure requiring a court warrant but having
none of the addititonal protections of Title III, and that separate
authority is not affected by the Admin proposal. So the change is less
significant than it appears.
3. The really big change has to do with the language that would make
it clear that the pen register statutue applies to the Internet. This is
coupled with a proposal to put some teeth into the current rubber stamp pen
register standard, which now says that a judge must approve any request.
So the proposal is to raise the standard for use of Carnivore as a pen
register/trap and trace device. Podesta admitted in the Q and A that the
hard question that the Admin hasn't resolved is what does a pen register
collect when applied to electronic communications.
4. On CALEA for the Net, note the following from the Q&A, which is
meaningful, of course, only until January 20:
> Q I am going to ask -- (inaudible). Your first proposal to expand wiretap
>authority to Internet service providers, do you foresee any change in CALEA to
>expand CALEA's function and the money associated with that legislation to
>cover
>ISPs?
>
> MR. PODESTA: I don't think we are looking at -- I am looking up at my
>colleagues here -- I don't think we are thinking about any amendments to CALEA
>or to the change of money or to apply that to the ISPs. That was a
>decision that was made when CALEA was passed, in 1994, I guess.
> Q John, I'm still a little confused about the -- extending these
>wiretap-friendly capabilities to ISPs and cable modem providers.
>Originally, if
>we did that with the traditional phone companies, it resulted in CALEA,
>government subsidizing some of the costs. Is it going to be a case where ISPs
>and modem providers -- cable modem providers who provide that service will
>have
>to foot the bill for any technical changes to their software, hardware, or --
>(off mike)?
>
> MR. PODESTA: I don't anticipate that. And you know, we specifically
>-- that specifically was rejected and left out of the bill when it was
>passed. We're
>having enough trouble trying to manage what we're trying to do under CALEA. I
>don't see extending it at this point.
------- End of Forwarded Message
--Steve Bellovin
