Tech Law Journal Daily E-Mail Alert
September 17, 2001, 9:00 AM ET, Alert No. 269.
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Pen Registers and Trap and Trace Devices
9/13. SA 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 of information.
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 Authority
9/13. SA 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 Smirnoff Case
9/14. The U.S. Court of Appeals (3rdCir) issued its opinion in The 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 release.
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."
Monday, Sept 17
? 9:30 AM. The U.S. Court of Appeals for the District of Columbia Circuit is scheduled to hear oral argument in Sprint v. FCC, No. 01-1076. Location: 333 Constitution Ave., NW, Washington DC.
? 12:00 NOON. The Federal Communications Bar Association (FCBA) is scheduled to host a lunch featuring FCC Commissioner Kathleen Abernathy. The price to attend is $45 for members, $35 for government people and law student members, and $55 for non members. RSVP to Wendy Parish at fcba@fcba.org by September 12. Location: Capital Hilton Hotel, 16th & K Street, NW, Washington DC.
Tuesday, Sept 18
Rosh Hoshanah. There will likely be no votes in the House.
Wednesday, Sept 19
POSTPONED. 12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Committee will hold a brown bag lunch. Location: FCC Conference Room 8B-516 (Eighth Floor South).
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 Page 46250.
Thursday, Sept 20
CANCELLED. 9:30 - 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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