Tech Law Journal Daily E-Mail Alert
May 31, 2002, 9:00 AM ET, Alert No. 441.
TLJ Home Page | Calendar | Subscribe | Back Issues
New DOJ Investigation Guidelines Address Data Mining and Internet Searches
5/30. The Department of Justice (DOJ) released new investigative guidelines to be used by the Federal Bureau of Investigation (FBI) in terrorist related, and other, matters. These guidelines cover many topics, including information systems, data mining, and Internet searching.
Attorney General John Ashcroft announced the guideline changes on May 30. See, Ashcroft statement. See also, DOJ memorandum [PDF] titled "Attorney General's Guidelines: Detecting and Preventing Terrorist Attacks", and DOJ memorandum [PDF] titled "Shifting from Prosecution to Prevention: Redesigning the Justice Department to Prevent Future Acts of Terrorism".
He stated that these revised guidelines have four overriding principles. First, "the war against terrorism is the central mission and highest priority of the FBI". Second, "terrorism prevention is the key objective under the revised guidelines". Third, "unnecessary procedural red tape must not interfere with the effective detection, investigation, and prevention of terrorist activities". Fourth, "the FBI must draw proactively on all lawful sources of information to identify terrorist threats and activities".
Ashcroft elaborated that "Under the current guidelines, FBI investigators cannot surf the web the way you or I can. Nor can they simply walk into a public event or a public place to observe ongoing activities. They have no clear authority to use commercial data services that any business in America can use. These restrictions are a competitive advantage for terrorists who skillfully utilize sophisticated techniques and modern computer systems to compile information for targeting and attacking innocent Americans."
He also stated that "The guidelines defining the general rules for FBI investigations, for example, were first issued over 20 years ago. They derive from a period in which Soviet communism was the greatest threat to the United States, in which the Internet did not exist, and in which concerns over terrorist threats to the homeland related mainly to domestic hate groups."
The DOJ also released the text of new guidelines. See, for example, The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations [PDF].
This document provides that "In order to carry out its central mission of preventing the commission of terrorist acts against the United States and its people, the FBI must proactively draw on available source of information to identify terrorist threats and activities."
The new guidelines continue that "The FBI is authorized to operate and participate in identification, tracking, and information systems for the purpose of identifying and locating terrorists, excluding or removing from the United States alien terrorists and alien supporters of terrorist activity as authorized by law, assessing and responding to terrorist risks and threats, or otherwise detecting, prosecuting, or preventing terrorist activities. Systems within the scope of this paragraph may draw on and retain pertinent information from any source permitted by law, including information derived from past or ongoing investigative activities; other information collected or provided by governmental entities, such as foreign intelligence information and lookout list information; publicly available information, whether obtained directly or through services or resources (whether nonprofit or commercial) that compile or analyze such information; and information voluntarily provided by private entities." (Parentheses in original.)
The new guidelines also state that the "The FBI is authorized to carry out general topical research, including conducting online searches and accessing online sites and forums as part of such research on the same terms and conditions as members of the public generally. ``General topical research´´ under this paragraph means research concerning subject areas that are relevant for the purpose of facilitating or supporting the discharge of investigative responsibilities. It does not include online searches for information by individuals' names or other individual identifiers, except where such searches are incidental to topical research, such as searching to locate writings on a topic by searching under the names of authors who write on the topic, or searching by the name of a party to a case in conducting legal research."
Finally, these guidelines state that "For the purposes of detecting or preventing terrorism or other criminal activities, the FBI is authorized to conduct online search activity and to access online sites and forums on the same terms and conditions as member of the public generally."
The DOJ also released new guidelines with the following titles: FBI Undercover Operations [PDF], Confidential Informants [PDF], and Lawful, Warrantless Monitoring of Verbal Communications [PDF].
Sen. Charles Grassley (R-IA), a member of the Senate Judiciary Committee, had this reaction: "Some of the current restrictions on investigations don't make sense. So, as Congress did with the Patriot Act last fall, it's logical to make some changes and especially those changes that empower field agents. That said, any time more power is given, Congress needs to be all the more vigilant in exercising its constitutional responsibility of oversight. Along with greater authority there must be greater scrutiny. Congress for too long has given the FBI too long a leash. The FBI should be prepared for tough questions from Capitol Hill about its use of all the new tools it's been given."
The Center for Democracy and Technology (CDT) released its analysis of the new guidelines. It stated that "The FBI is using the terrorism crisis as a cover for a range of changes, some of which have nothing to do with terrorism."
It also stated that "The online surfing provisions, for example, relate not only to terrorism cases, but to all other investigation -- drugs, white collar crime, public corruption, and copyright infringement."
The CDT argued that "The expanded surveillance and use of data mining could be written off as just a waste of money, but for two paramount problems: the changes are likely to make the FBI less efficient in preventing terrorism, by diverting resources down rat-holes of fruitless investigations; and the DOJ has proven its determination since September 11 to arrest people based on innocent coincidences ..."
The CDT also stated that "The FBI was never prohibited from surfing the Internet or using commercial data mining services - the FBI has long been a major customer of many private information systems. But in the past, the search had to be related to some investigation. ... The new changes allow the data  mining technique ... as the basis for generating the suspicion of criminal conduct in the first place."
The ACLU condemned the new guidelines. See, release.
Panel Debates ROW Obstacles to Broadband Deployment
5/30. The Congressional Internet Caucus Advisory Committee hosted a panel discussion titled "Speeding Broadband Deployment By Balancing of Rights of Way Interests" on Capitol Hill.
The speakers were Martin Stern of the Telecommunications Industry Rights of Way Working Group (I-ROW), Marilyn Praisner, a member of the Montgomery County Council, Robert Nelson, a Commissioner on the Michigan Public Service Commission, and Sandy Wilson, VP of Public Policy at Cox Enterprises.
Stern stated that some local government entities are obstructing broadband deployment by delaying approval of access to rights of way by service providers, by demanding unreasonable fees, and by demanding concessions unrelated to the right of way. He advocated federal action to limit local authority, either through Congressional legislation, or a Federal Communications Commission (FCC) proceeding.
In contrast, Praisner argued that local governments have a legitimate role to play in the management of public rights of way, and their authority should not be preempted or limited by state or federal legislation or other proceedings.
Nelson discussed the recently enacted Michigan bill to streamline the process for authorizing access to rights of way. It is titled the "Metropolitan Extension Telecommunications Rights of Way Oversight Act". See also, Michigan Legislature's bill summary [PDF].
He stated that the Michigan statute sets a uniform per linear foot right of way fee that limits all local government entities. The fee is constant regardless of how many lines the provider has. Government entities must act within 45 days on all applications.
Stern stated that "there are situations where government entities go beyond management, and seek unrelated concessions, particularly, given their leverage over providers." He stated that local governments have leverage because time is critical in deploying broadband networks, because "rights of way and public lands access is an essential input to which there is no substitute."
He continued that "what we have found is that a sufficient number of these entities have really held up deployment, or have tried to extract unreasonable fees, or have tried to impose an additional level of regulation unrelated to the user rights of way, that has actually had a demonstrable impact on deployment."
Stern also addressed 47 U.S.C. § 253, which provides in part that "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." However, it also provides that "Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers ..."
Stern said that "it is difficult to get an injunction under Section 253". He continued that there are ambiguities in the statute that have been exploited by local governments, such as what constitutes "fair and reasonable", and whether broadband data networks are covered. He suggested that either Congress amend the statute, or that the FCC initiate a proceeding to amend its rules, or to issue a guidance. He concluded that "it is an issue of national scope that demands a national answer".
The luncheon was held in the Capitol Building. The House and Senate are in recess. Many members of the audience were Congressional staff.
People and Appointments
5/30. Antonia Chion was named Associate Director of the Division of Enforcement of the Securities and Exchange Commission (SEC). She succeeds Linda Thomsen. See, SEC release.
5/30. John Morrissey, Deputy Chief Accountant of the Securities and Exchange Commission (SEC), will leave the SEC. See, SEC release.
More News
5/30. The European Parliament voted to approve a directive [PDF] concerning the processing of personal data and the protection of privacy in the electronic communications sector. See, EU release.
5/30. The Securities and Exchange Commission (SEC) announced that its web site now provides free, real time access to its EDGAR database of corporate filings. See, SEC release.
5/29. Quantum Corp and Imation announced that "have settled all legal claims between the companies over the qualification, production and sale of DLTtape media products. As a result of the settlement, Imation has dismissed its antitrust lawsuit against Quantum and Maxell, and Quantum has dismissed its trade secrets lawsuit against Imation. Quantum and Imation also have committed to completing qualification of Imation as a manufacturer of DLTtape media." See, Quantum release and Imation release.
About Tech Law Journal
Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for entities with multiple subscribers. Free one month trial subscriptions are available. Also, free subscriptions are available for law students, journalists, elected officials, and employees of the Congress, courts, and executive branch, and state officials. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert and news items are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All rights reserved.
Friday, May 31
The House is in recess until Tuesday, June 4.
The Senate is in recess until Monday, June 3.
The Supreme Court is in recess until June 3.
8:30 AM - 4:00 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will hold an open meeting. For more information, contact Gwen Blount at 703 292-8900. See, notice in Federal Register. Location: 4201 Wilson Blvd., Room 1235, Arlington, VA.
9:30 AM - 12:30 PM. The FCC's Public Safety National Coordination Committee will hold a General Membership meeting. Location: FCC, Commission Meeting Room, 445 12th St., SW.
Monday, June 3
The Senate will meet at 1:00 PM.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Rambus v. infineon Technologies, No. 01-1449, an appeal from the U.S. District Court (EDVa) in a patent infringement case involving semiconductor memory devices. At issue is the existence and scope of the patent disclosure obligations that arise as a result of participation in a standard setting body. This is D.C. No. 3:00CV524; the District Court opinion of August 9, 2001 is at 2001 WL 913972. Location: LaFayette Square, at 717 Madison Place, NW.
10:00 AM. USPTO Director James Rogan will hold a press conference call to announce and discuss a USPTO restructuring proposal. For more information, contact Brigid Quinn at 703 305-8341or brigid.quinn
2:00 - 3:30 PM. The FTC's Bureau of Competition will hold a public workshop on merger investigation best practices. This is the first workshop of a seven part, five city, series. This event will focus on electronic records. See, FTC release. Location: FTC, Room 332, 600 Pennsylvania Avenue NW.
EXTENDED TO JULY 1. Deadline to submit reply comments to the FCC in response to its Notice of Proposed Rulemaking titled "In the Matter of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities". This is CC Docket No. 02-33. See, May 29 notice [PDF] extending deadline from June 3 to July 1. See also, Order [PDF] extending deadline from May 14 to June 3, and original notice in Federal Register.
Tuesday, June 4
The House will meet at 2:00 PM for legislative business. No recorded votes are expected before 6:00 PM. The House will consider a number of measures under suspension of the rules.
POSTPONED TO JUNE 5. 10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The FCC's UWB Proceeding: An Examination of the Government's Spectrum Management Process." Webcast. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.
10:00 AM. The Senate Health, Education, Labor, and Pensions Committee will hold a hearing on legislation to authorize funding for the National Science Foundation. Location: Room 430, Dirksen Building.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Insight Development v. Hewlitt Packard, No. 01-1459, an appeal from the U.S. District Court (NDCal) in a patent infringement case involving web imaging technology. Location: LaFayette Square, at 717 Madison Place, NW.
2:00 - 4:00 PM. The FCC's Advisory Committee for the 2003 World Radiocommunication Conference (WRC-03 Advisory Committee) will meet. See, notice and agenda [PDF]. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th Street, SW.
4:00 PM. The House Judiciary Committee's Subcommittee on Crime will hold a hearing and a mark up session for HR 4598, the Homeland Security Information Sharing Act, sponsored by Rep. Saxby Chambliss (R-GA). Audio webcast. Location: Room 2141, Rayburn Building.
Wednesday, June 5
8:30 AM - 5:00 PM. Day one of a three day public workshop hosted by the FTC on proposed amendments to the Telemarketing Sales Rule (TSR), including the potential development and implementation of a national do not call list. See, FTC release and agenda. Location: Marriott Wardman Park Hotel, 2600 Woodley Road, NW.
9:30 AM. The National School Boards Foundation will host a breakfast (9:00 AM) and media briefing on it release of a national survey titled "Are We There Yet?  Research and Guidelines on Schools Use of the Internet". For more information, contact Renee Hockaday at 703 838-6717 or rhockaday Location: Corporation for Public Broadcasting, 2nd Floor, 401 9th St., NW.
10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The FCC's UWB Proceeding: An Examination of the Government's Spectrum Management Process." Webcast. Press contact: Ken Johnson or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.
2:00 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing titled "DRM: The Consumer Benefits of Today's Digital Rights Management Solutions." Audio webcast. Location: Room 2141, Rayburn Building.
EXTENDED TO JULY 17. Deadline to submit reply comments to the FCC in response to its notice of proposed rulemaking regarding its unbundling analysis under § 251 of the Communications Act and the identification of specific unbundling requirements for incumbent local exchange carriers. See, May 29 order [PDF] extending deadline from June 5 to July 17. See also, notice in the Federal Register. This is CC Docket No. 01-338.
Thursday, June 6
8:30 AM - 5:00 PM. Day two of a three day public workshop hosted by the FTC on proposed amendments to the Telemarketing Sales Rule, including the potential development and implementation of a national do not call list. See, FTC release and agenda.
10:00 AM. The House Judiciary Committee will meet to mark up several bills, including HR 3215, the Combatting Illegal Gambling Reform and Modernization Act (Goodlatte Internet gambling bill), and HR 4623, the Child Obscenity and Pormography Prevention Act of 2002. Audio Webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.
TIME? The Senate Commerce Committee's Subcommittee on Communications will hold a hearing titled Universal Service Fund. Press contact: Andy Davis 224-6654. Location: Room 253, Russell Senate Office Building.
8:00 AM - 5:00 PM. The Institute for International Research (IIR) and ComCare will host a conference titled e-SAFETY: Delivering Communications & Information Technology Solutions for 21st Century Public Safety. Sen. Conrad Burns (R-MT) will give a keynote address at 8:30 AM. The price to attend is $695. See, IIR notice. Location: Ronald Reagan Building, 1300 Pennsylvania Ave., NW.
Deadline to submit comments to the SEC regarding its proposed rule amending the Investment Advisers Act of 1940 to exempt certain investment advisers that provide advisory services through the Internet from the prohibition on SEC registration set out in § 203A of the Act. The amendments would permit these advisers to register with the SEC instead of with state securities authorities. See, notice in the Federal Register.