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News ::
Senators seeking to expand the PATRIOT ACT - peronal info. grabbed from ISP's
15 Apr 2002
If you are interested to know what is defined as "Legal Wiretapping Authority for the federal government" than you'll want to read this carefully.

We are talking MAJOR power grab since September 11th with regards to the USA PATRIOT ACT and this proposed crap.
If you are interested to know what is defined as "Legal Wiretapping Authority for the federal government" than you'll want to read this carefully.

We are talking MAJOR power grab since September 11th with regards to the USA PATRIOT ACT and this proposed crap.

http://www.newhouse.com/archive/story1a041002.html

"The amount of subpoenas that carriers receive today is roughly doubling every month -- we're talking about hundreds of thousands of subpoenas for customer records -- stuff that used to require a judge's approval," said Albert Gidari, a Seattle-based expert in privacy and security law who represents numerous technology companies.

snip...

"Everything is an emergency now," Gidari said, though he believes "a lot of it is just fishing."

snip...

Prosecutors, acting under the authority of grand jury investigations, may issue subpoenas without prior approval of a judge. Critics complain that the Patriot Act makes it possible for CIA agents working with law enforcement officers to jointly draw up subpoenas, obtain information, and never have to appear in court to explain how the information was used.

snip...

"It can do the same at any bank, telephone company, hotel or motel, hospital or university -- merely upon the claim that the information is `sought for' an investigation to protect against international terrorism or clandestine intelligence activities."

**************

Some Senators want to expand this even more, allowing ISP's even more discretion with regards to customer information being handed over to "ANY GOVERNMENT ENTITY".

U.S. code Title 18 Section 2702 and 2703

H.R. 3482 would dilute the definitions of "emergency" even more:

Here is the most important sectionf from this bill and following that, testimony from the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security hearings related to the bill and the actual U.S. Code that would be changed if this bill were to be signed into law.

H. R. 3482 To provide greater cybersecurity. IN THE HOUSE OF REPRESENTATIVES December 13, 2001 Mr. SMITH of Texas (for himself and Mr. BOEHLERT) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To provide greater cybersecurity. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

http://thomas.loc.gov/cgi-bin/query/C?c107:./temp/~c107IkzsXa

SEC. 102. EMERGENCY DISCLOSURE EXCEPTION.

Section 2702(b) of title 18, United States Code, is amended--

(1) by striking `or' at the end of paragraph (5);
(2) by striking subparagraph (C) of paragraph (6); and

(3) by striking the period at the end of paragraph (6) and inserting `; or'; and

(4) by inserting after paragraph (6) the following:

`(7) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure of the information without delay.'.

***********
http://www.house.gov/judiciary/davidson021202.htm

Testimony of Alan Davidson Associate Director Center for Democracy and Technology before the Subcommittee on Crime of the Committee on Judiciary U.S. House of Representatives February 12, 2002


Second, the emergency disclosure provision of Section 102, as drafted, is overly broad and would eviscerate important privacy protections in current law.
Current law protects the privacy of electronic communications by prohibiting service providers from revealing those communications to anyone without proper lawful orders. Emergency disclosure provisions exist in the current law based on a reasonable idea – ISPs who reasonably believe there is an imminent threat of death or serious injury should be able to reveal communications to law enforcement agencies on an emergency basis even without judicial oversight.

Sec. 102 would substantially expand this ability to reveal private communications without any judicial authority or oversight.

In practice, however, we have heard reports from large and small providers, universities, and libraries, that the emergency disclosure is being used in a different way. Providers are often approached by government agents and asked to voluntarily disclose communications or other subscriber information for investigations that the government claims involve a danger to life and limb. Providers are then faced with a Hobbesian choice – either turn over sensitive private communications of subscribers without any court order, or say no to a government request. Of course many comply with the requests. Small providers have few legal resources to evaluate such requests. Others receive requests from the same agents they may seek help from the next day regarding hacking attacks or other problems. Without proper restrictions, such “voluntary disclosure” provisions risk becoming a major loophole.

Current law, passed just four months ago, confines these extraordinary disclosures to law enforcement agents in limited circumstances. As drafted, Sec. 102 would threaten the privacy of communication by substantially broadening these disclosures:


- It allows these disclosures to any governmental entity, not just law enforcement agents. That could include literally thousands of federal, state, and local employees – perhaps even foreign government officials.
- It no longer requires imminent danger for disclosure. It would allow these extraordinary disclosures when there is some danger, which might be far in the future and far more hypothetical.

- It no longer requires a reasonable belief that there is a danger on the part of the ISP. Section 102 would allow these sensitive disclosures if there is any good faith belief – even if unreasonable–of danger.

Thus as drafted, Sec. 102 would allow many more disclosures of sensitive communications without any court oversight or notice to subscribers. It would allow these disclosures to (and based on requests from) potentially hundreds of thousands of government employees, ranging from local canine control officials to schoolteachers to Agriculture Department cotton inspectors to foreign government officials.

We urge the committee to carefully rethink this expansion. We understand the argument that in some narrow circumstances disclosures to some entities - such as the Center for Disease Control - might be warranted. As supported in current law, in cases of imminent threats of death or serious injury, law enforcement agencies - trained to deal with such situations and cognizant of legal strictures– should be the first contact point for concerned citizens. We also urge the committee to maintain the requirements of a reasonable belief in imminent danger.

We are confident that if other disclosures are needed they can be carefully crafted, and we look forward to working with the Committee as well as experts in industry and other interested parties to find a more balanced approach.

In addition, we strongly encourage this Committee to add accountability mechanisms for this extraordinary power. Congress should consider requiring notice to the subscriber, after the fact (and deferrable based on a judicial order), as a means of providing subscribers with some way of knowing that their communications have been disclosed. And at a bare minimum Congress should mandate a reporting requirement for these emergency disclosures to federal law enforcement, to give Congress some method of evaluating their use.

******************

H.R. 3482 proposes to make the above noted changes to the following U.S. Code. I included the changes made by the USA PATRIOT ACT and marked them with a *; you will notice that the title of this section was the first item changed (although you will not know what the changes are unless you refer to them on this thread and compare with them what's found at the link to sec. 2702 (below).

TITLE 18 - CRIMES AND CRIMINAL PROCEDURE PART I - CRIMES CHAPTER 121 - STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS

Sec. 2702. -Voluntary disclosure of customer communications and records*

http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+108

-STATUTE-

(a) Prohibitions. - Except as provided in subsection (b) - (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and


(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service -

(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;*
(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; or*

*(C) if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosures of the information without delay.

b) Exceptions. - A person or entity may divulge the contents of a communication -


(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;
(2) as otherwise authorized in section 2517, 2511(2)(a), or 2703 of this title;

(3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;

(4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;

(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service; or

(6) to a law enforcement agency -


(A) if the contents -

(i) were inadvertently obtained by the service provider; and
(ii) appear to pertain to the commission of a crime; or

(B) if required by section 227 of the Crime Control Act of 1990.

*(c) Exceptions for disclosure of customer records. - A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2)-


(1) as otherwise authorized is section 2703;
(2) with the lawful consent of the customr or subscriber;

(3) as may be necessarily incident to the rendition of service or to the protection of the rights or property of the provider of that service;

(4) to a governmental entity; if the provider reasonably believes that an emergency involving immediate danger of death or serious physical inury to any person justifies disclosure of the information; or

(5) to any person other than a governmental entity.

**********
Sec. 2703. Requirements for governmental access

http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+108

-STATUTE-


(a) Contents of Electronic Communications in Electronic Storage. - A governmental entity may require the disclosure by a provider of electronic communication service of the contents of an electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued under the Federal Rules of Criminal Procedure or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of an electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.
(b) Contents of Electronic Communications in a Remote Computing Service. - (1) A governmental entity may require a provider of remote computing service to disclose the contents of any electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection -


(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued under the Federal Rules of Criminal Procedure or equivalent State warrant; or
(B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity -


(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or
(ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title.

(2) Paragraph (1) is applicable with respect to any electronic communication that is held or maintained on that service -


(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and
(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.

(c) Records Concerning Electronic Communication Service or Remote Computing Service. - (1)(A) *A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) or (b) of this section) to any person other than a governmental entity.


(B) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)

*(A) obtains a warrant issued under the Federal Rules of Criminal Procedure or equivalent State warrant;
*(B) obtains a court order for such disclosure under subsection (d) of this section;

*(C) has the consent of the subscriber or customer to such disclosure; or

*(D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title);or

*(E) seeks information under paragrapd (2).

*(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of such service and the types of services the subscriber or customer utilized, when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).

*(3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.

d) Requirements for Court Order. - A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction described in section 3127(2)(A) and shall issue only 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. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

(e) No Cause of Action Against a Provider Disclosing Information Under This Chapter. - No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, or certification under this chapter.

(f) Requirement To Preserve Evidence. -


(1) In general. - A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.
(2) Period of retention. - Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

- Daniel
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