IP: re: Peter Swire op-ed on anti-terrorism bill: Power may be abused

[David Farber <dave () farber net>]

> From: <eck () panix com>
> Subject: Re: IP: Peter Swire op-ed on anti-terrorism bill: Power may be abused
> To: farber () cis upenn edu
> Date: Wed, 24 Oct 2001 11:10:32 -0400 (EDT)
> X-Mailer: ELM [version 2.5 PL6]
>
> David Farber writes:
> + >
> + >         If surveillance expands, safeguard civil liberties Peter P. Swire
> + > - For the Atlanta Journal-Constitution Sunday, October 21, 2001
>
> Dave, I've known Peter for 15 years or more -- my wife's family and
> his are old friends -- and he's a wonderful person.  For that reason,
> it pains me to point out how badly wrong his op-ed is on the law.
>
> + >On the wiretap side, the act permits law enforcement to camp at a phone
> + >company or Internet service provider and monitor a wide range of
> + >communications as they flow through the network.
>
> The Act does no such thing.  What the "computer trespasser" provision
> does is permit monitoring *only* of, well, computer trespassers
> (defined in the Act as people who have no right to access the system
> in question).  The language is explicitly narrow: monitoring of any
> communications other than those to or from the trespasser is not
> allowed by the new exception.
>
> + > Under the long-standing rule covering telephone wiretaps, law enforcement
> + > is forbidden from using wrongfully obtained evidence in court. But that
> + > rule does not apply to information illegally obtained by police from
> + > wiretaps of e-mail and Web surfing.
>
> Peter is right that there is no statutory suppression for improperly
> intercepted electronic communications.  (Congress made that choice
> deliberately in 1986.)  However, he rather too conveniently omits
> mention of the fact that Fourth Amendment suppression remains a potent
> sanction.  If, as he posits, investigators were to overstep the bounds
> of the "computer trespasser" exception and monitor legitimate users'
> private traffic, the fruits of that monitoring would be subject to
> constitutional suppression.
>
> + > The House also created a $10,000 fine against the
> + > government for illegal Internet wiretaps. None of these desirable
> + > safeguards made it into the final USA Act.
>
> Peter's simply wrong: the civil penalty for illegal wiretaps has been
> $10,000 since the enactment of ECPA in 1986.  (See current 18 USC
> 2520.)
>
> --
>                         Sold by weight, not by volume.
>   Some settling of contents may have occurred during shipment and handling.
>
>                    Mark Eckenwiler    eck () panix com


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