On Jul 30, 2010, at 3:58 08PM, Perry E. Metzger wrote:
> On Fri, 30 Jul 2010 09:38:44 +0200 Stefan Kelm <[email protected]> wrote:
>> Perry,
>>
>>> The administration wants to add just four words -- "electronic
>>> communication transactional records" -- to a list of items that
>>> the law says the FBI may demand without a judge's approval.
>>> Government
>>
>> Would that really make that much of a difference? In Germany,
>> at least, the so-called "judge's approval" often isn't worth
>> a penny, esp. wrt. phone surveillance. It simply is way too
>> easy to get such an approval, even afterwards.
>
> It is significantly harder here in the US.
Actually, no, it isn't. Transaction record access is not afforded the same
protection as content. I'll skip the detailed legal citations; the standard
now for transactional records is 'if the governmental entity offers specific
and articulable facts showing that there are reasonable grounds to believe that
the contents of a wire or electronic communication, or the records or other
information sought, are relevant and material to an ongoing criminal
investigation." This is much less than the "probably cause" and specificity
standards for full-content wiretaps, which do enjoy very strong protection.
> Equally importantly, it is
> much simpler to determine what warrants were issued after the fact.
>
Not in this case. Since the target of such an order is not necessarily the
suspect, the fact of the information transfer may never be introduced in open
court. Nor is there a disclosure requirement here, the way there is for
full-content wiretaps.
--Steve Bellovin, http://www.cs.columbia.edu/~smb
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