Posted by John Elwood:
Two More OLC Opinions Published:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253477642
I spent the weekend in idyllic Orkney Springs, VA. After I left on
Friday, the Office of Legal Counsel released two more opinions, both
concerning "Einstein 2.0," which sounds a little like a kid movie
sequel ("Beethoven's 2d," anyone?), but actually is a cybersecurity
initiative used to protect civilian unclassified networks in the
Executive Branch against malicious network activity.
The [1]first opinion is a 35 pager signed during the waning days of
the Bush Administration, which concludes that Einstein 2.0 complies
with the Fourth Amendment, Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, FISA, the Stored Communications Act, and the
pen register and trap and trace provisions of the U.S. Code, provided
that log-on banners or computer-user agreements are consistently
adopted, implemented, and enforced by agencies using the system.
The [2]second opinion, which is much shorter (just a hair over 5
pages), was signed August 14, 2009. It states that "[w]e have reviewed
that opinion and agree that the operation of the EINSTEIN 2.0 program
complies with" those provisions, which I guess isn't to be assumed
nowadays, and also goes on to conclude that operation of Einstein does
not run afoul of state wiretapping or communications privacy laws.
Most of the opinion discusses the reasonable expectations of privacy
of system users.
Publication of the August 14 opinion is the best indication yet that
the current OLC is making it a priority to quickly publish those
opinions it intends to publish.
The opinions received some press coverage. The most in-depth article
was in the [3]Washington Post.
References
1. http://www.usdoj.gov/olc/2009/e2-issues.pdf
2. http://www.usdoj.gov/olc/2009/legality-of-e2.pdf
3.
http://www.washingtonpost.com/wp-dyn/content/article/2009/09/18/AR2009091804147.html
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