7/31. Sen. Lisa Murkowski (R-AK) introduced S 1552 [21 pages in PDF], the "Protecting the Rights of Individuals Act", or PRI Act. This bill contains numerous significant changes to the Foreign Intelligence Surveillance Act (FISA) and the Criminal Code to limit the powers of government to conduct searches, seizures, and surveillance. It contains some major rollbacks of provisions added to the FISA (Title 50) and the Criminal Code (Title 18) by the PATRIOT Act in late 2001. Sen. Ron Wyden (D-OR) is the cosponsor of the bill.

The bill includes a large collection of major revisions to the laws regulating electronic surveillance. The bill would toughen the requirement for obtaining and pen register and trap and trace orders. It would clarify that pen register and trap and trace orders cannot be used to obtain the subject lines of e-mail messages or any portion of a uniform resource locator (URL) beyond the top level domain. It would raise the standard for obtaining a FISA order from "a significant purpose" of the surveillance must be foreign intelligence gathering, to "the primary purpose". It would eliminate "John Doe" roving wiretaps. It would restrict the circumstances under which the government may delay giving notice of the issuance of a search warrant. It would restrict the government's access to business records under the FISA. It would provide that the FBI's access to the toll billing records and electronic communication transactional records of a "electronic communications service provider" does not apply to libraries. And, it would impose a moratorium on government data mining.

The bill is limited in that it focuses on the search, seizure and surveillance provisions of law that were amended by the PATRIOT Act, and especially those pertaining to electronic surveillance. S 1552 does not address other areas of law amended by the PATRIOT Act, such as those pertaining to biological weapons, border protection, terrorist financing infrastructure, and immigration and alien detention and deportation.

Supporters of the bill have characterized the bill as "some modest checks and balances" and "a prudent, mid-course correction" of the PATRIOT Act.

Steve Lilienthal of the Free Congress Foundation (FCF) stated in a release that "Conservatives who care about preserving our constitutional liberties and protecting privacy will find the Protecting the Rights of Individuals Act to their liking. It is a necessary and prudent rewrite of the USA-Patriot Act that demonstrates respect for the need of Federal law enforcement to have enhanced powers to fight the War on Terrorism while providing the necessary safeguards to protect the constitutional liberties and privacy of American citizens."

Jill Farrell of the FCF stated that "It offers a prudent, mid-course correction of the USA-Patriot Act. Now, after nearly two years of having had the USA-Patriot Act on the books, thoughtful conservatives are taking a needed second look at what Congress passed so hastily. In the heated "do something" atmosphere after September 11th, legislators were not provided with enough time to read and understand the legislation that they were voting on. PRI brings some accountability to law enforcement and provides some protection to citizens."

Ari Schwartz of the Center for Democracy and Technology (CDT) stated in a release that the bill "would place some modest checks and balances on the most troublesome provisions of the USA PATRIOT Act. Cosponsored by Sen. Ron Wyden (D-OR), the legislation's ten provisions leave in place expanded law enforcement and intelligence powers granted by the PATRIOT Act, but ensure that privacy and other civil liberties will be better protected when the FBI and other agencies exercise those powers.

Schwartz stated that the bill would "guarantee that Americans' homes will not be searched in secret unless necessary", "limit the FBI's ability to look at sensitive, personal information, including medical, library and Internet records, without demonstrating specific suspicion to a judge", and "increase judicial review for some telephone and Internet monitoring".

The bill is also supported by the American Library Association (ALA), People for the American Way (PFAW), American Conservative Union (ACU), American Civil Liberties Union (ACLU), and other groups.

Sen. Lisa Murkowski (at right) is a freshman Senator. Former Sen. Frank Murkowski (R-AK) represented Alaska in the Senate from 1980 until his election as Governor of Alaska in November of 2002. This left his seat in the Senate vacant. Under Alaska law, the Governor has authority to appoint a replacement to a vacant Senate seat. So, as Governor, he appointed Lisa Murkowski, his daughter, to serve the remaining two years of his term. At the time, Lisa Murkowski was a third term legislator in the Alaska state House. Moreover, she had just been elected House Majority Leader. She previously practiced law in Anchorage, Alaska.

There are already several Senate Democrats who have actively advocated restraint of law enforcement authority in the name of individual liberties, including Sen. Russ Feingold (D-WI), Sen. Ron Wyden (D-OR), and Sen. Patrick Leahy (D-VT). Also, there have been several civil liberties proponents in the House -- notably former Rep. Bob Barr (R-GA), who lost his seat in 2002.

Sen. Murkowski's introduction of this bill may indicate the emergence of a Republican advocate of civil liberties in debates over the appropriate scope of government search, seizure and surveillance authority in the fight against terrorism.

Bob Barr, who now works for the American Conservative Union Foundation's 21st Century Privacy and Freedom Center, stated in a release that "Sen. Murkowski is leading the charge in the U.S. Senate to create sound public policy that will assist law enforcement and simultaneously preserve the privacy and civil liberties of law-abiding Americans."

She is also taking positions opposed by the federal law enforcement, intelligence and homeland security agencies. And, she is taking positions opposed by the Bush administration, and most senior Senate Republicans.

7/31. The following is a section by section summary of S 1552 [21 pages in PDF], which was introduced on July 31, 2003 by Sen. Lisa Murkowski (R-AK) and Sen. Ron Wyden (D-OR).

Section 1: Title. Section 1 of the bill only states the title of the bill, the "Protecting the Rights of Individuals Act". It is also referred to by some as the PRI Act.

Section 2: Delay of Notice of Search Warrants. Section 2 of the bill amends 18 U.S.C. § 3103a. This section, which was amended by the PATRIOT Act, lists circumstances under which the government may delay giving notice of the issuance of a search warrant. S 1552 narrows the circumstances, and adds a new requirement that the Attorney General prepare a semi-annual report for the Congress and the public regarding requests for delays of notice.

Section 3: Definition of Domestic Terrorism. Section 3 of the bill amends 18 U.S.C. § 2331(5). This subsection, which was amended by the PATRIOT Act, provides a definition of the term "domestic terrorism". S 1552 narrows the definition to encompass less conduct. Currently, the statute defines "domestic terrorism" as follows:

"activities that --
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended --
  (i) to intimidate or coerce a civilian population;
  (ii) to influence the policy of a government by intimidation or coercion; or
  (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States."

S 1552 would define "domestic terrorism" by cross referencing the definition of "Federal crime of terrorism" at 18 U.S.C. § 2332b(g)(5).

This is significant because this latter definition enumerates a list of specific federal crimes or classes of crimes, while the current statute encompasses all "criminal laws". The law, as currently written, hypothetically, is susceptible to abuse by malicious government officials who might categorize as "domestic terrorism" acts that, while illegal and intimidating, are essentially political protest or activism.

Section 4a: Business Records. Section 4a amends the FISA, at 50 U.S.C. § 1861, to limit access to business records under the FISA.

Section 4b: FBI Access to Telephone Toll and Transactional Records. Section 4b amends 18 U.S.C. § 2709. This section, which was amended by the PATRIOT Act, covers "counterintelligence access to telephone toll and transactional records". The statute provides that "A wire or electronic communications service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director ..." of the FBI. S 1552 would add that "A library shall not be treated as a wire or electronic communication service provider for purposes of this section."

Section 5: John Doe Roving Wiretaps. Section 5 amends the FISA, at 50 U.S.C. § 1805(c), to eliminate "John Doe" roving wiretaps.

Section 6: Pen Register and Trap and Trace Authority. The current requirement for the issuance of a pen register or trap and trace order is merely that "the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation". Section 6 would change this standard to "the court shall enter an ex parte order ... if the court finds that there exist specific and articulable facts that reasonably indicate that a crime has been, is being, or will be committed, and that information likely to be obtained by such installation and use is relevant to the investigation of that crime."

Section 6 would also clarify that "the contents of Internet electronic communications include the subject line of such communications and any portion of a Uniform Resource Identifier (URI) other than the server name and top level domain", and thus cannot be obtained by the government with a pen register or trap and trace order.

Section 7: Moratorium on Data Mining. Section 7 provides that "No officer or employee of any department or agency of the Federal Government may take any action to implement or carry out any data-mining program or activity except pursuant to a law specifically authorizing such data-mining program or activity by such department or agency." This section might prohibit, for example, continuation of the Total Information Awareness (TIA) project without Congressional legislation approving the project.

Section 8: Expansion of Reporting FISA Reporting Requirement. Section 8 expands the public reporting requirement under the FISA. The current requirement is very minimal, and reveals little about FISA orders or the FISA process.

Section 9: Discovery. Section 9 amends the FISA regarding the applications of discovery procedures to evidence used in court proceedings.

Section 10: FISA Standard. Section 10 is only one sentence long. It provides that "Sections 104(a)(7)(B) and 303(a)(7)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)(B), 1823(a)(7)(B)) are each amended by striking ``a significant purpose´´ and inserting ``the primary purpose´´." Its impact is large. This changes the standard that the government must meet to obtain a FISA order.

The change proposed by S 1552 would make it harder for the the government to obtain FISA warrants. Moreover, since some FISA investigations regarding foreign intelligence uncover evidence of domestic crimes, which result in domestic prosecutions, tightening the standards may decrease the number of domestic criminal cases brought based upon evidence obtained under as FISA order, rather than an Title III order based upon probable cause.

And under a more cynical analysis, the heightened standard of S 1552 would make it harder for the government to avoid the stringent requirements for issuance of a Title III order, by obtaining a FISA order on the pretext that it is for foreign intelligence purposes, but then actually using the evidence collected for prosecutorial purposes, thereby evading the Fourth Amendment protections against unreasonable searches and seizures that the Title III process is intended to protect.

Section 11: Educational Records. Section 11 increases the showing that must be made by the government to obtain educational records.

7/31. Sen. Russ Feingold (D-WI) introduced S 1544, the "Data-Mining Reporting Act of 2003", a bill to require federal agencies engaged in data mining to submit a report to the Congress explaining their data mining activities.

Sen. Feingold stated that "The untested and controversial intelligence procedure known as data-mining is capable of maintaining extensive files containing both public and private records on each and every American. Almost weekly, we learn about a new data-mining program under development like the newly named Terrorism Information Awareness program. Congress should not be learning the details about these programs after millions of dollars are spent testing and using data-mining against unsuspecting Americans." See, Congressional Record, July 31, 2003, at S10672.

He explained that "My bill would require all Federal agencies to report to Congress within 90 days and every year thereafter on data-mining programs used to find a pattern indicating terrorist or other criminal activity and how these programs implicate the civil liberties and privacy of all Americans. If it was necessary, information in the various reports would even be classified." He added that "The bill does not end funding for any program, determine the rules for use of the technology or threaten any on-going investigation that uses data-mining technology."

The bill provides that "The head of each department or agency of the Federal Government that is engaged in any activity to use or develop data-mining technology shall each submit to Congress a report on all such activities of the department or agency under the jurisdiction of that official."

This report must include,

"(1) A thorough description of the data-mining technology.
(2) A thorough discussion of the plans for the use of such technology and the target dates for the deployment of the data-mining technology.
(3) An assessment of the likely efficacy of the data-mining technology in providing accurate and valuable information consistent with the stated plans for the use of the technology.
(4) An assessment of the likely impact of the implementation of the data-mining technology on privacy and civil liberties.
(5) A list of the laws and regulations that govern the information to be collected, reviewed, gathered, and analyzed with the data-mining technology and a description of any modifications of such laws that will be required to use the information in the manner proposed under such program.
(6) A thorough discussion of the policies, procedures, and guidelines that are to be developed and applied in the use of such technology for data-mining in order to -- (A) protect the privacy rights of individuals; and (B) ensure that only accurate information is collected and used."

The bill does not contain a definition of data mining.

7/31. There are three main types of court orders authorizing electronic surveillance. Each applies to a particular category of surveillance, and each has its own standard for issuance. That is, there are (1) wiretap orders, (2) pen registers and trap and trace device orders, and (3) Foreign Intelligence Surveillance Act (FISA) orders.

A wiretap order, which enables law enforcement agencies to obtain the content of a phone call or e-mail, is issued by a judge upon a showing of probable cause. This is often referred to as a Title III order. This is a very high standard.

In contrast, there is a much lower standard for obtaining pen register and trap and trace orders, which merely obtain outgoing and incoming phone numbers, and since passage of the PATRIOT Act, e-mail addressing and routing information. Under the current statute, the order must be issued if the government asserts mere relevance to a criminal investigation; the judge has no discretion. The Supreme Court has upheld this procedure on the basis that only phone numbers are obtained.

Finally, there is a separate, and low, standard for FISA orders. Under current law, a significant purpose of the surveillance must be foreign intelligence gathering. FISA orders are not available in criminal investigations.

The PATRIOT Act, which was passed quickly in late 2001 in the aftermath of the September 11 terrorist attacks, made some changes to this structure, both regarding what acts of surveillance fall into which of these three categories, and regarding the standards for issuance of an order in each category.

The statutes for wiretaps and pen register and trap and trace orders were drafted with analog Public Switched Telephone Network (PSTN) voice service in mind. Originally, 18 U.S.C. § 3127 provided that a pen register records the numbers that are dialed or punched into a telephone, while a trap and trace device 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. The PATRIOT Act expanded the scope of surveillance under pen register and trap and trace authority to include internet routing and addressing information. That is, an e-mail address in the "To:" line of an e-mail message is somewhat analogous to the number dialed in a PSTN voice call. However, this expanded authority also applies to new technologies for collecting addressing and routing information, such as the FBI's Carnivore system.

The PATRIOT Act did not change the standard for either wiretaps (a showing of probable cause) or pen register or trap and trace orders (an assertion of mere relevance to a criminal investigation). It did, however, lower the standard for issuance of a FISA order. The statute required that the "primary purpose" of the surveillance be foreign intelligence gathering. The PATRIOT Act changed this to "a significant purpose". The PATRIOT Act made it easier for the government to get a FISA order. This was a thoroughly debated issue in late 2001.

Sen. Murkowski's bill, S 1552, would also makes changes to both categorization, and standards for issuance of orders.

First, it addresses what internet communications are subject to pen register and trap and trace orders, and what falls under wiretap orders. It provides that "the contents of Internet electronic communications include the subject line of such communications and any portion of a Uniform Resource Identifier (URI) other than the server name and top level domain." That is, what is typed into the "Subject:" line of an e-mail message cannot be captured by the government pursuant to a pen register or trap and trace order. It would require a wiretap order. Similarly, a pen register and trap and trap order can be used to obtain the website that one visits, but not the actual page within that website, or other information that is appended to the URI, such as search terms. Technically, this is not either an expansion or contraction, because the PATRIOT Act is silent on these two items.

However, there was debate on this in 2001. During the House Judiciary Committee's mark up of the PATRIOT Act on October 3, 2002, Rep. Bob Goodlatte (R-VA) and Rep. Rick Boucher (D-VA) proposed and discussed an amendment that would have clarified the information that could be collected under pen register and trap and trace orders. Their proposal was as follows: "In Section 101, strike ``(but not including the contents of such communication)´´ each place it appears and insert ``(but not including in formation that reveals the subject matter of electronic communications, information identifying files or web pages accessed over the Internet (beyond the host name), or other contents of communications)´´. In Section 101, on page 5, line 3, by inserting after ``(but not including information that reveals the subject matter of electronic communications, information identifying files or web pages accessed over the Internet (beyond the host name), or other contents of communications)´´ after ``communications.´´" (Parentheses in original.)

However, Rep. Goodlatte and Rep. Boucher did not actually offer this amendment. Hence, it was neither approved, nor rejected. They settled for language in House Judiciary Committee report, House Report 107-236, on this point. (This report states that "an order under the statute could not authorize the collection of email subject lines, which are clearly content. Further, an order could not be used to collect information other than `dialing, routing, addressing, and signaling' information, such as the the portion of a URL (Uniform Resource Locator) specifying Web search terms or the name of a requested file or article.") Had the Goodlatte Boucher amendment been adopted, it would have accomplished the same objectives as S 1552.

See also, story titled "Content, Subject Lines, and URLs" in TLJ Daily E-Mail Alert No. 279, October 4, 2001, and "Content Versus Routing and Signaling Information" in TLJ Daily E-Mail Alert No. 286, October 14, 2001.

Second, S 1552 changes the standards for issuance of both pen register and trap and trace orders and FISA orders.

S 1552 would change the standard for a FISA order to "the primary purpose" must be foreign intelligence. The PATRIOT Act lowered the standard to "a significant purpose". Hence, S 1522 makes it harder for the government to obtain a FISA order.

S 1552 would also change the standard for issuance of a pen register and trap and trace order. The current requirement is merely that "the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation". A judge must issue an order if the attorney for the government makes the requisite assertion.

S 1552 would change this standard to "the court shall enter" an order "if the court finds that there exist specific and articulable facts that reasonably indicate that a crime has been, is being, or will be committed, and that information likely to be obtained by such installation and use is relevant to the investigation of that crime." Thus, S 1552 makes three changes. First, the court must make a finding, and not rely on the government's assertion. Second, the government will have to identify not just a criminal investigation, but also specify what crime is involved. Third, the court will have to find the there are facts that indicate that that crime was or will be committed. This standard is much more demanding than the current standard, will is essentail a "rumber stamp" standard. Hence, S 1522 makes it harder for the government to obtain a pen register or trap and trace order.

Also, it is notable that the change in the standard for issuance of a pen register and trap and trace order is not a rollback of the PATRIOT Act. The PATRIOT Act did not alter the standard for pen register and trap and trace orders that had been in effect for years. S 1552 thus toughens a standard that pre-dates the PATRIOT Act. The existing standard dates back to 1986.

The House is in recess until September 3. Senate is in recess until September 2. The Supreme Court is in recess.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF]. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [21 pages in PDF] in its proceeding titled "In the Matter of Inquiry Regarding Carrier Current Systems, including Broadband over Power Line Systems". See, notice in the Federal Register, May 23, 2003, Vol. 68, No. 100, at Pages 28182 - 28186. See also, story titled "FCC Announces NOI Regarding Broadband Over Powerlines" in TLJ Daily E-Mail Alert No. 628, April 24, 2003, and story titled "FCC Releases NOI on Broadband Over Power Lines" in TLJ Daily E-Mail Alert No. 656, May 7, 2003.This is ET Docket No. 03-104. For more information, contact Anh Wride at 202 418-0577 or anh.wride@fcc.gov.

POSTPONED. The Federal Communications Commission (FCC) will hold an auction of Direct Broadcast Satellite (DBS) Service Licenses. This is Auction No. 52. See, notice of postponement in Federal Register, June 20, 2003, Vol. 68, No. 119, at Page 36989.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microsoft v. Multi-Tech Systems, No. 03-1138, and Multi-Tech Systems v. Net2Phone, No. 03-1139. This is an appeal from the U.S. District Court (DMinn) in a patent infringement case involving data communications technology. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The Federal Communications Commission (FCC) Office of Engineering and Technology (OET) will sponsor a tutorial titled "Fiber to the Home Technology". Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room). See, notice [PDF].

Deadline to submit comments to the Federal Communications Commision (FCC) in response to its notice of proposed rulemaking (NPRM) [7 pages in PDF] regarding the draft Nationwide Agreement [28 pages in PDF] of the FCC, the Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation Officers, regarding undertakings for communications facilities, including communications towers and antennas, under the National Historic Preservation Act (NHPA). This proceeding is titled "In the matter of Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process". It is WT Docket No. 03-128. For more information, contact Frank Stilwell at 202 418-1892 or fstilwel@fcc.gov. See, story titled "FCC Announces NPRM Regarding Communications Facilities and the National Historic Preservation Act" in TLJ Daily E-Mail Alert No. 677, June 10, 2003. See also, notice in the Federal Register, July 9, 2003, Vol. 68, No. 131, at Pages 40876 - 40887.

2:00 - 3:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Trade Agreements and Capital Controls". The speakers will be John Taylor (Treasury Department) and Jagdish Bhagwati (Columbia University). See, notice. Location: AEI, 12th Floor, 1150 17th Street, NW.

Deadline to submit comments to the General Services Administration's (GSA) Office of Electronic Government and Technology regarding its draft policy titled "Draft E -- E-Authentication for Federal Agencies". See, notice in the Federal Register, July 11, 2003, Vol. 68, No. 133, at Pages 41370 - 41374.

Deadline to submit comments, or requests to speak at the September 2, 2003 public hearing, on the Treasury Department's and the Internal Revenue Service's (IRS) notice of proposed rulemaking (NPRM) regarding regulations that "affect certain taxpayers who participate in the transfer of stock pursuant to the exercise of incentive stock options and the exercise of options granted pursuant to an employee stock purchase plan (statutory options)." See, notice in the Federal Register, June 9, 2003, Vol. 68, No. 110, at Pages 34344 - 34370.

Day one of a three day conference hosted by the American Intellectual Property Law Association (AIPLA) titled "2003 Practical Patent Prosecution Training for New Lawyers". See, notice [PDF]. Location: Arlington, VA.

8/5. The Federal Communications Commission (FCC) published a notice in the Federal Register that recites and describes the changes to its media ownership rules, announced on June 2, 2003. The rules changes take effect on September 4, 2003. See, Federal Register, August 5, 2003, Vol. 68, No. 150, at Pages 46285 - 46358.

8/5. Nancy Victory, Director of the Department of Commerce's National Telecommunications and Information Administration (NTIA) submitted a comment to the Federal Communications Commission (FCC) in its proceedings titled "International Settlements Policy Reform", IB Docket No. 02-324, and "International Settlement Rates", IB Docket No. 96-261. She wrote that "The Commission currently has before it a proceeding to re-examine the international settlements policy (ISP) and associated benchmarks, and to inquire as to whether foreign mobile termination rates may be adversely affecting U.S. consumers and the market for U.S.-international services. Given recent trends towards increasing international fixed line termination rates above market prices, and intensifying international discussions on whether a cost-oriented scheme should be developed for international mobile rates, the Commission’s proceeding comes at a critical juncture and its decisions will have a significant impact on the international telecommunications marketplace. I write to urge the Commission to retain the ISP and associated benchmarks in a modified form, and to adopt a position of cost-orientation for international mobile rates to ensure the continued support of U.S. consumer and business interests."

7/31. Sen. Ron Wyden (D-OR) and Sen. Byron Dorgan (D-ND) released a statement on the resignation of John Poindexter as Director of the Terrorism Information Awareness (TIA) program of the Department of Defense's (DOD) Defense Advanced Research Projects Agency (DARPA). The wrote that "As Congress contemplates the future of the Terrorism Information Awareness Program after the resignation of Dr. Poindexter, we want to make one point clear: even with today’s announcement, the proposed TIA program would still be the biggest spying and surveillance overreach in America’s history, and it should be shut down. Congress will have the opportunity to do just that in the conference for the defense appropriations bill in the fall and we hope to see this program de-funded once and for all. We have always believed that it is possible to fight terrorism vigorously without gutting civil liberties. The TIA program skews that balance and needs to go."

8/1. Linton Wells, Principal Deputy Assistant Secretary of Defense for Networks and Information Integration, gave a briefing in Washington DC regarding the work of the U.S. Agency for International Development (USAID) and Bechtel on upgrading Iraq's telecommunications and information infrastructure. See, transcript.