Re: House's anti-terror bill requires judge to monitor FBI ...

[InfoSec News <isn () c4i org>]

Forwarded from: Marjorie Simmons <lawyer () carpereslegalis com>

The President is scheduled to sign H.R. 3162 into law today.  Below
are some of the sections of H.R. 3162 that have an impact on hacking
and related activities that will be at issue in litigating cases
involving such activities.  As you may already be aware, it is due
process that takes the biggest hit.

Most of H.R. 3162 relates to authority for wiretap, money- laundering
activities, foreign nationals, and criminal law. The bill also
incorporates some provisions in an attempt to respect concerns of the
technology community but these are, as are all the provisions of this
legislation, yet untested. It remains to be seen how effective such
provisions are in addressing privacy and due process.  The CDT's
"Policy Post 7.10" on the Surveillance Bills provides some (pre-bill
passing) analysis at http://www.cdt.org/publications/pp_7.10.shtml.  
The latest developments on this legislation are at:
http://www.cdt.org/security/010911response.shtml.


Sections of interest:

TITLE I  Enhancing Domestic Security Against Terrorism

Section 105
Expands National Electronic Crime Task Force Initiative.

Section 106
On Presidential Authority, amends Section 203 of the 
International Emergency Powers Act (50 USC 1702)
and includes insertion at the end the following:

 Classified Information.--In any judicial review of a
 determination made under this section, if the determination
 was based on classified information (as defined in section
 1(a) of the Classified Information Procedures Act) such
 information may be submitted to the reviewing court ex 
 parte and in camera. This subsection does not confer or 
 imply any right to judicial review.

TITLE II Enhanced Surveillance Procedures

Section 208
Covers designation of judges. (BTW, there are currently over 
a hundred federal judgeship vacancies and about 12 nominees 
whose nominations are pending.) 

Section 209
Addresses the seizure of voice-mail messages pursuant to 
warrants.

Section 210
Governs the scope of subpoenas for records of electronic 
communications.

Section 211
Attempts to clarify that statutes governing the wiretap 
requirements on telephone and internet communications 
apply equally to cable companies that provide internet or 
telephone service in addition to television programming;
The DMCA will come into play here.

Section 212
Allows technology providers to disclose communications
and records of communications to protect life and limb and 
says that victims of computer hacking can disclose 
non-content records to protect their rights and property;

Section 213 
Authority for delaying notice of the execution of a warrant.

Section 214 & 215
Pen register and trap and trace authority and access to records 
and other items under the Foreign Intelligence Surveillance 
Act.

Section 216
On the modification of authorities relating to use of pen 
registers and trap and trace devices.  Generally allows 
nationwide pen register and trap-and-trace orders and 
includes prohibitions on law enforcement obtaining content 
of email and other communications. Also requires reporting 
by law enforcement to a court each time a monitoring device
is installed on a packet-switched data network.

Section 217
Interception of computer trespasser communications.  Allows 
targets of hacking (such as ISPs) to request law enforcement 
assistance in monitoring their computers to track the activities 
of trespassers who do not have contractual relationship with the
target.

Section 219
Single-jurisdiction search warrants for terrorism.

Section 220
Authority for nationwide service of search warrants for 
electronic evidence.

Section 222
Protects communications providers from having to develop 
or deploy new technology as a result of the bill, and assures 
that they will be reasonably compensated for their compliance
with wiretap demands;

Section 225
Grants immunity from civil liability to persons who furnish
information in compliance with a Foreign Intelligence 
Surveillance Act order;


TITLE III International Money Laundering Abatement and 
         Anti-Terrorist Financing Act of 2001

Subtitle A
International Counter Money Laundering and Related Measures

Section 312
Special due diligence for correspondent accounts and private
banking accounts.

Section 322
Governs rules when a corporation is represented by a fugitive.

Subtitle B
Bank Secrecy Act Amendments and Related Improvements

Section 355
Authorizes mention of suspicions of illegal activity in
written employment references.  Uses the words 'possible 
involvement' with regard to activities while employed by 
a bank. ("You want to hire Jo Schmo and he gave us as a 
reference? Well, we suspect he MIGHT possibly have been 
involved in some illegal funds transfers, but we're not sure. 
However, he was otherwise a competent employee.")


TITLE VIII:  Strengthening the Criminal Laws Against Terrorism

Section 814
Governs deterrence and prevention of cyberterrorism. Makes 
changes to hacking law, including extra-territorial jurisdiction, 
amending the definition of loss to include more types of 
hacking activity and ensuring stiff penalties for offenders.
Amends the term 'damage' to mean "any impairment to 
the integrity or availability of data, a program, a system, or
information".

Section 815
Creates a legal defense for persons who disclose wire or
electronic communications records in response to the request
of a governmental entity. Affects follow-on suits for defamation
and abuse of process.


_ - _ - _ - _ - _ - _ - _

This legislation, overall, considerably ups the ante for due
diligence, and will keep lawyers busy for many years to come.

Marjorie Simmons, Esq.
lawyer () carpereslegalis com
http://www.carpereslegalis.com



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