[iwar] [fc:DOJ's.Already.Monitoring.Modems]

From: Fred Cohen (fc@all.net)
Date: 2001-11-28 22:39:18
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From: Fred Cohen <fc@all.net>
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Date: Wed, 28 Nov 2001 22:39:18 -0800 (PST)
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Subject: [iwar] [fc:DOJ's.Already.Monitoring.Modems]
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DOJ's Already Monitoring Modems
By Declan McCullagh and Ben Polen

4:42 p.m. Nov. 28, 2001 PST           

WASHINGTON -- The Department of Justice already is using its new
anti-terrorism powers to monitor cable modem users without obtaining a
judge's permission first.

A top Bush administration official lauded the controversial USA Patriot Act
at a Senate hearing on Wednesday, saying that the new abilities have let
police obtain information in investigations that was previously unavailable.

"We would not have been able to do (this) under prior law without a specific
court order," said Michael Chertoff, assistant attorney general in the
Justice Department's criminal division.

Previously, federal law said that "a cable operator shall not disclose
personally identifiable information concerning any subscriber." Section 211
of the USA Patriot Act changes the law to read: "A cable operator may
disclose such information if the disclosure is ... to a government entity."

Other USA Patriot Act sections mean that police can obtain an Internet
Protocol address, which identifies a cable modem subscriber, as readily as
they can learn someone's telephone number.

Chertoff said the government also has used its new powers to obtain court
orders for logs from Internet providers that are outside of the court's
traditional jurisdiction.

"We've obtained court orders directed to out-of-district Internet service
providers for logging information.... We've used the nationwide search
warrant provision to obtain relevant information," Chertoff said. "We've
used the emergency disclosure provisions to support our use of information
that was provided to us by an Internet service provider."

Senate Judiciary chairman Patrick Leahy called the hearing to review some of
the Bush administration's recent actions that have raised concerns among
civil libertarians, such as detaining over a thousand suspects, and the
creation of secret military tribunals to try suspected terrorists.

Leahy said in his opening remarks: "Whether any or all of these ideas are
popular or unpopular at the moment, as an oversight committee, we accept our
duty to examine them."

The anti-terrorism law that President Bush signed last month amended the
Cable TV Privacy Act and Title 18, Section 2703 of the U.S. Code's title 18
to faciliate greater eavesdropping.

It also made it easier for government agencies to share information with
each other, Chertoff said: "We have used it to start the process of sharing
information between the intelligence side and the law enforcement side."

Attorney General John Ashcroft has said the FBI began using the powers mere
hours after President Bush signed the law. The Justice Department has
prepared a "field guidance" manual (PDF) for prosecutors.

Sen. Orrin Hatch of Utah, the senior Republican on the committee, said he
thought the Bush administration was responding appropriately to the Sept. 11
terrorist attacks. 

"The administration can take these positions," Hatch said. "They have to
justify them, but they can take them, and I think there's more than enough
information here to justify the positions they've taken."

The Department of Defense has been responsible for drafting the guidelines
for the military tribunal, but can ask the Department of Justice for
assistance. "The Department of Defense can ask us for help," Chertoff said.

Leahy replied: "I hope you wouldn't wait for an invitation. Pick up the
phone and call them."

Attorney General Ashcroft was invited to speak at this hearing but declined
to attend, and instead is scheduled to appear at a hearing on Dec. 6.

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