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Re: House's anti-terror bill requires judge to monitor FBI ...
From: InfoSec News <isn () c4i org>
Date: Mon, 29 Oct 2001 02:51:18 -0600 (CST)
Forwarded from: Marjorie Simmons <lawyer () carpereslegalis com>
The President is scheduled to sign H.R. 3162 into law today. Below
are some of the sections of H.R. 3162 that have an impact on hacking
and related activities that will be at issue in litigating cases
involving such activities. As you may already be aware, it is due
process that takes the biggest hit.
Most of H.R. 3162 relates to authority for wiretap, money- laundering
activities, foreign nationals, and criminal law. The bill also
incorporates some provisions in an attempt to respect concerns of the
technology community but these are, as are all the provisions of this
legislation, yet untested. It remains to be seen how effective such
provisions are in addressing privacy and due process. The CDT's
"Policy Post 7.10" on the Surveillance Bills provides some (pre-bill
passing) analysis at http://www.cdt.org/publications/pp_7.10.shtml.
The latest developments on this legislation are at:
Sections of interest:
TITLE I Enhancing Domestic Security Against Terrorism
Expands National Electronic Crime Task Force Initiative.
On Presidential Authority, amends Section 203 of the
International Emergency Powers Act (50 USC 1702)
and includes insertion at the end the following:
Classified Information.--In any judicial review of a
determination made under this section, if the determination
was based on classified information (as defined in section
1(a) of the Classified Information Procedures Act) such
information may be submitted to the reviewing court ex
parte and in camera. This subsection does not confer or
imply any right to judicial review.
TITLE II Enhanced Surveillance Procedures
Covers designation of judges. (BTW, there are currently over
a hundred federal judgeship vacancies and about 12 nominees
whose nominations are pending.)
Addresses the seizure of voice-mail messages pursuant to
Governs the scope of subpoenas for records of electronic
Attempts to clarify that statutes governing the wiretap
requirements on telephone and internet communications
apply equally to cable companies that provide internet or
telephone service in addition to television programming;
The DMCA will come into play here.
Allows technology providers to disclose communications
and records of communications to protect life and limb and
says that victims of computer hacking can disclose
non-content records to protect their rights and property;
Authority for delaying notice of the execution of a warrant.
Section 214 & 215
Pen register and trap and trace authority and access to records
and other items under the Foreign Intelligence Surveillance
On the modification of authorities relating to use of pen
registers and trap and trace devices. Generally allows
nationwide pen register and trap-and-trace orders and
includes prohibitions on law enforcement obtaining content
of email and other communications. Also requires reporting
by law enforcement to a court each time a monitoring device
is installed on a packet-switched data network.
Interception of computer trespasser communications. Allows
targets of hacking (such as ISPs) to request law enforcement
assistance in monitoring their computers to track the activities
of trespassers who do not have contractual relationship with the
Single-jurisdiction search warrants for terrorism.
Authority for nationwide service of search warrants for
Protects communications providers from having to develop
or deploy new technology as a result of the bill, and assures
that they will be reasonably compensated for their compliance
with wiretap demands;
Grants immunity from civil liability to persons who furnish
information in compliance with a Foreign Intelligence
Surveillance Act order;
TITLE III International Money Laundering Abatement and
Anti-Terrorist Financing Act of 2001
International Counter Money Laundering and Related Measures
Special due diligence for correspondent accounts and private
Governs rules when a corporation is represented by a fugitive.
Bank Secrecy Act Amendments and Related Improvements
Authorizes mention of suspicions of illegal activity in
written employment references. Uses the words 'possible
involvement' with regard to activities while employed by
a bank. ("You want to hire Jo Schmo and he gave us as a
reference? Well, we suspect he MIGHT possibly have been
involved in some illegal funds transfers, but we're not sure.
However, he was otherwise a competent employee.")
TITLE VIII: Strengthening the Criminal Laws Against Terrorism
Governs deterrence and prevention of cyberterrorism. Makes
changes to hacking law, including extra-territorial jurisdiction,
amending the definition of loss to include more types of
hacking activity and ensuring stiff penalties for offenders.
Amends the term 'damage' to mean "any impairment to
the integrity or availability of data, a program, a system, or
Creates a legal defense for persons who disclose wire or
electronic communications records in response to the request
of a governmental entity. Affects follow-on suits for defamation
and abuse of process.
_ - _ - _ - _ - _ - _ - _
This legislation, overall, considerably ups the ante for due
diligence, and will keep lawyers busy for many years to come.
Marjorie Simmons, Esq.
lawyer () carpereslegalis com
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- Re: House's anti-terror bill requires judge to monitor FBI ... InfoSec News (Oct 29)