|Pen Registers and Trap and
1562, approved by the Senate on September 13, expands law
enforcement authority with respect to the use of trap and
trace devices and pen registers. These are both telephone
industry concepts. The amendment brings these concepts into
the world of Internet communications.
Pen Registers. A pen register records the numbers that
are dialed or punched into a telephone. Current law covers
"wire" communications only. Specifically, a pen
register is "a device which records or decodes electronic
or other impulses which identify the numbers dialed or
otherwise transmitted on the telephone line to which such
device is attached ..." See, 18
U.S.C. § 3127(3).
Under SA 1562, the concept of a pen register would be expanded
from merely capturing phone numbers, to capturing routing and
addressing information in any electronic communications,
including Internet communications. Specifically, as amended,
the statutory definition of pen register would read: "a
device or process which records or decodes dialing, routing,
addressing, or signaling information transmitted by an
instrument or facility from which a wire or electronic
communication is transmitted ..."
Trap and Trace. The amendment also expands the concept
of trap and trace. Under current law, this is "a device
which captures the incoming electronic or other impulses which
identify the originating number of an instrument or device
from which a wire or electronic communication was
transmitted." See, 18
U.S.C. § 3127(4).
The amended language reads: "a device or process which
captures the incoming electronic or other impulses which
identify the originating number or other dialing, routing,
addressing, and signaling information relevant to identifying
the source of a wire or electronic communication''.
Effect of Amendments. This is not just a matter of
expanding pen register and trap and trace orders from phone to
Internet communications. It also expands the scope and
quantity of information collected. In the context of
telephones, the information obtained is only the phone number,
not the content of the phone call. In Internet communications,
a significant amount of substantive content is included within
"routing, addressing, and signaling" information.
Civil liberties advocates have argued that this is significant
because the standard for obtaining pen register and trap and
trace orders (for phone numbers), as opposed to wiretap orders
(for phone conversations), is much lower. The current statute
reads: "the court shall enter an ex parte order
authorizing the installation and use of a pen register or a
trap and trace device within the jurisdiction of the court if
the court finds that the attorney for the Government or the
State law enforcement or investigative officer has certified
to the court that the information likely to be obtained by
such installation and use is relevant to an ongoing criminal
investigation." Note the use of the mandatory -- shall.
Note also the low standard -- mere relevance. The ease of
obtaining pen register and trap and trace orders is based on
the assumption that only phone numbers, rather than the
content of conversations, is being obtained. Under the SA
1562, this low standard will be used to obtain a wider scope
National Scope of Orders. Note also that the above
quoted language of current law states that pen register and
trap and trace orders apply "within the jurisdiction of
the court". The amendment would also change this. It
would add this: "The order shall, upon service of the
order, apply to any entity providing wire or electronic
communication service in the United States whose assistance is
required to effectuate the order."
|Senate Passes Bill
Expanding Electronic Surveillance Powers
|9/13. The Senate passed HR 2500, the appropriations bill for
FY 2002 for the Departments of Commerce, Justice, State, and
the Judiciary, and related agencies. It is also sometimes
called the "CJS bill". The Senate also passed Senate
Amendment 1562 to this bill. It would increases law
enforcement powers. It would expand wiretap authority. It
would also extend the scope of pen register and trap and trace
orders from old fashioned wireline phone technology, to new
Internet communications. The bill also contains many other law
enforcement related provisions.
See also, TLJ opinion article titled An
Analysis of How the Events of September 11, 2001 May Change
Federal Law. It focuses on the wiretap, pen register, and
trap and trace provisions of Senate Amendment 1562. It also
speculates about the possible impact of recent terrorist
events on other tech related issues, including Carnivore,
CALEA, E-911, encryption, the Export Administration Act, cyber
terrorism, antitrust enforcement, 3G wireless services, and
broadband Internet access.
|Senate Expands Wiretap
1562, approved by the Senate on September 13, expands
wiretap authority. Currently, there is a short list of
criminal offenses that can serve as predicate offenses for the
issuance of wiretap orders. This amendment would add two new
offenses -- terrorism and cyber crime.
|Third Circuit Affirms in
|9/14. The U.S.
Court of Appeals (3rdCir) issued its opinion
Joint Stock Society v. UDV North America, a
case involving claims under the Lanham Act, for false
designation of origin, false advertising, and trademark
cancellation, as well as claims under Delaware law, in
connection with the use of name Smirnoff vodka. The District
Court dismissed for lack of a case or controversy
within the meaning of Article III of the Constitution. The
Appeals Court affirmed.
|Defendant Pleads Guilty to
Theft of Itanium Designs
|9/14. Say Lye Ow plead guilty in U.S. District Court (NCCal)
to copying trade secrets in violation of 18 U.S.C. §
1832(a)(2), the Economic Espionage Act of 1996. In 1998 Say
Lye Ow copied without authorization computer files relating to
the design and testing of Intel's Merced microprocessor, which
is now known as Itanium. He now faces a maximum jail sentence
of ten years. Ross Nadel, Chief of the CHIP Unit for Northern
District of California, is the Assistant U.S. Attorney (USAO)
who prosecuted the case. See, Plea
Agreement [PDF], Superseding
Information [PDF], and USAO
|GAO Identifies Computer
Security Weaknesses at BPD
|9/14. The GAO released a report [PDF]
titled "Bureau of the Public Debt: Areas for Improvement
in Computer Controls". The report concludes that Bureau
of the Public Debt's "computer resources or operating
environment are exposed to threats such as unintentional
errors or omissions or intentional modification, disclosure,
or destruction of data and programs by disgruntled employees
or intruders. Thus, the vulnerabilities we note increase the
risks of inappropriate disclosure and modification of
sensitive data and programs, misuse or damage of computer
resources, or disruption of critical operations."
|Tuesday, Sept 18
|Rosh Hoshanah. There will likely be no votes in the House.
|Wednesday, Sept 19
PM. The Federal Communications
Bar Association's (FCBA) Mass Media Committee will hold a
brown bag lunch. Location: FCC Conference Room 8B-516 (Eighth
Extended deadline to submit comments to the Copyright Office (CO)
regarding the determination of reasonable rates and terms for
the digital performance of sound recordings. The CO
extended the period to file comments to proposed regulations
that will govern the RIAA collective when it functions as the
designated agent receiving royalty payments and statements of
accounts from nonexempt, subscription digital transmission
services which make digital transmissions of sound recordings
under the provisions of § 114
of the Copyright Act. Comments and Notices of Intent to
Participate in a Copyright Arbitration Royalty Panel
Proceeding are now due by September 19. See, notice
in Federal Register, September 4, 2001, Vol. 66, No. 171, at
|Thursday, Sept 20
- 11:30 AM. The American
Enterprise Institute will present a lecture titled
"Access Pricing in Telecommunications." The speaker
will be Mark
Armstrong, a fellow in economics at Nuffield College at
Oxford University. The price for admission is $20. Location:
Wohlstetter Conference Center, American Enterprise Institute,
1150 17th Street, NW, Washington DC.
10:00 AM. The Senate
Judiciary Committee will hold a hearing "to examine instant
messaging, focusing on platforms and communications on the
Web." Location: Room 106, Dirksen Building.
10:00 AM. The FCC's Technological Advisory Council will hold a
meeting. Location: FCC, 445 12th Street, SW, Room TW-C305
(Commission Meeting Room), Washington DC.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Young Lawyers
Committee will host a brown bag lunch featuring FCC
Commissioner Kathleen Abernathy's Legal Advisors. No RSVP is
required. Location: Hogan
& Hartson, 555 13th St., Room 12E-407.
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