FC: Replies to Feds secretly getting info on cable modem owners

[Declan McCullagh <declan () well com>]

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From: "Jim Harper - Privacilla.org" <jim.harper () privacilla org>
To: <declan () well com>
Subject: Re: More on Feds can secretly get info on cable modem owners
Date: Thu, 23 Aug 2001 14:46:13 -0400

Declan:

Your .gov respondent doesn't dispute that Feds can secretly get info on
cable modem owners.  Your Subject: line accurately summarizes the state of
the law in light of this case.  If it's shocking to people, so be it.

Law enforcement and privacy are in natural and constant tension.  Several
federal laws with 'privacy' in their titles deprive people of control over
information and the power to protect privacy as they see fit.  Surveillance
of the type approved by EC'P'A is one of several ways that law and
regulation undermine privacy.

Jim

Jim Harper
Privacilla.org

**********

From: "Bridis, Ted" <Ted.Bridis () dowjones com>
To: "'declan () well com'" <declan () well com>
Subject: RE: More on Feds can secretly get info on cable modem owners
Date: Thu, 23 Aug 2001 14:28:00 -0400

If you remember, the Clinton White House had sought to have Congress resolve
this issue in his final months.


Updating of Wiretap Law for E-Mail Age Is Urged by the Clinton
Administration
By Ted Bridis
Staff Reporter of The Wall Street Journal
07/18/2000
The Wall Street Journal
A3
(Copyright (c) 2000, Dow Jones & Company, Inc.)

WASHINGTON -- The White House is urging changes in U.S. law to make it
easier for authorities to eavesdrop on Internet communications such as
electronic mail, updating what the government described as wiretap laws
written for an earlier era.

The administration said that the changes would enhance legal privacy
protections because they would require, for example, approval by senior
Justice Department officials before the Federal Bureau of Investigation
could use software surveillance, such as its "Carnivore" system. That
approval already is required in cases where law enforcement wants to monitor
telephone conversations.

The changes require U.S. judges to suppress electronic evidence obtained by
illegal wiretap; current law mandates suppression in such circumstances of
only oral or written communications, not e-mail. The proposals were all made
by the Justice Department in a March study that identified what the
government said were deficiencies in enforcing laws against crimes on the
Internet.
The American Civil Liberties Union said the White House announcement was
"deeply disappointing," because it did not include any promise to suspend
use of Carnivore, which the group charged gives the government "unsupervised
access to a nearly unlimited amount of communications traffic."

The Internet Alliance, a Washington trade group for Internet providers, said
the White House proposals "make sense," but also warned that its member
companies "should not be deputized," spokesman Jeff Richards said.

The proposals were announced at the same time that the administration
relaxed restrictions on the export of powerful encryption technology to the
European Union and to Australia, Norway, the Czech Republic, Hungary,
Poland, Japan, New Zealand and Switzerland. White House Chief of Staff John
Podesta said the change, which will benefit some U.S. hardware and software
firms, was not offered in exchange for the high-technology industry's
support of the White House wiretap proposals. "We've never tried to link
those two," he said.

The White House also sought to give authorities undisputed access to the
Internet traffic of roughly 2.2 million consumers using cable modems. And it
proposed making it easier for police to obtain court orders to trace the
transmission and receipt of Internet data nationwide without asking
permission from a judge in every jurisdiction the data passes through.
Another change would give judges greater latitude in denying those requests.
But in extraordinary cases, such as an attack by hackers, the FBI could
perform tracing, then obtain court approval as much as 48 hours later.

A legal dispute continues between Internet providers and law enforcement.
The nation's cable Internet providers have argued that they are not required
under the U.S. Cable Act to turn over subscriber information without giving
customers the opportunity to fight the disclosure in court. However, the
Justice Department argues it is entitled to cable Internet data under the
Electronic Communications Privacy Act without warning the customer in
advance about its proposed surveillance.

U.S. District Judge J. Young of Boston called the dispute "a thorny and
important issue" in a case last year, in which he ordered an unidentified
cable Internet provider to turn over the customer's records. Judge Young
acknowledged that his decision should not be read too broadly, saying that
it was "not the day to resolve such ephemeral puzzles."

Mr. Podesta said the administration's proposals would continue to prohibit
disclosure of which broadcasts a cable customer views on television.

With only weeks left before Congress adjourns, the administration is asking
Congress to approve its proposals, though Mr. Podesta predicted, "we can
work to get them done this year." Variations of some proposals already are
in competing bills in the Senate Judiciary Committee.

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Subject: RE: Feds can secretly get info on cable modem owners, judge says
Date: Thu, 23 Aug 2001 11:05:47 -0700
From: "Clinton D. Fein" <clinton.fein () apollomedia com>
To: <declan () well com>, <politech () politechbot com>

Based on the opinions of the Fifth Circuit Court of Appeals in United
States v. ApolloMedia, it seems that with regard to 18 U.S.C. § 2705(b)
"the statute under which the government obtained this order, however,
only allows nondisclosure orders 'if there is reason to believe that
notification of the existence of the court order will ... endanger[] the
life or physical safety of an individual; [prompt] flight from
prosecution-, [threaten] destruction of or tampering with evidence;
[risk] intimidation of potential witnesses; or otherwise seriously
jeopardiz[e] an investigation,' and only '"for such period as the court
deems appropriate"' to prevent those possibilities. The onus rests upon
the government to demonstrate as much to the court.
(http://www.ejournalism.com/usapollo/)

In United States v. ApolloMedia, the difference was that "ApolloMedia,
its agents, and affiliates" were prohibited from discussing THE ORDER
with "any ... person ... until authorized to do so" by the Court. In the
Cablevision case, Cablevision has at least been able to mention the mere
existence of the court order. The question is how much information might
Cablevision be able to reveal before it theoretically jeopardizes the
"integrity of the investigation." (I've always loved the irony of the
use of that phrase by law enforcement).

The other major difference was that in United States v. ApolloMedia we
sought to lift the gag order in our capacity as a publisher, rather than
as a service provider, although Cablevision's subsidiary, Rainbow Media
Holdings, Inc.  delivers "an all-in-one package of news, sports and
entertainment to entertain, educate and empower customers in today's
multi-platform world."

If they fight the order as a publisher they could argue, as we did, that
the "Order constitutes an unconstitutional prior restraint of speech
protected by the First Amendment. See New York Times v. United States,
403 U.S. 713, 714 (1971) (impermissible prior restraint against
publication of Pentagon Papers even though majority of the justices
believed that publication would probably be harmful to national
security; any prior restraint bears "a heavy presumption against its
constitutional validity"); Nebraska Press Ass'n v. Stuart, 427 U.S. 539,
559 ("prior restraints on speech and publication are the most serious
and the least tolerable infringement on First Amendment rights");
Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 844-45 (1978)
("this Court has consistently rejected the argument that [out-of-court
statements on pending cases or grand jury investigations] constituted a
clear and present danger to the administration of justice"); Worrel
Newspapers of Indiana v. Westhafer, 739 F.2d 1219, 1224-1225 (7th Cir.
1984), affirmed, 469 U.S. 1200 (1985) (holding unconstitutional a state
statute subjecting to criminal punishment any person who published names
of persons against whom a sealed indictment or information was filed);
Procter & Gamble, 78 F.3d at 225 ("gagging of publication has been
considered acceptable only in 'exceptional cases'").

It will be an interesting case to watch, certainly to see if it
ultimately constitutes an "exceptional case".

Clinton
_______________________

Clinton Fein
President
ApolloMedia Corporation
370 7th Street, Suite 6
San Francisco, CA 94103
VOICE: 415-552-7655
FAX: 415-552-7656
http://apollomedia.com/
_______________________

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