Re: [TSCM-L] Patriot Act gets even more patriotic

More good news for all of us patriotic American patriots:

http://news.com.com/2100-1030_3-6037598.html

Police blotter: Patriot Act e-mail spying approved
By Declan McCullagh
Staff Writer, CNET News.com
Published: February 9, 2006, 5:46 PM PST

What: The Justice Department asks a judge to approve Patriot Act e-mail
monitoring without any evidence of criminal behavior.

When: Decided Feb. 2, 2006 by U.S. District Judge Thomas Hogan in
Washington, D.C.

Outcome: E-mail surveillance approved.

What happened: As part of a grand jury investigation that's still
secret, the Justice Department asked a federal magistrate judge to
approve monitoring of an unnamed person's e-mail correspondents.

The request had a twist: Instead of asking to eavesdrop on the contents
of the e-mail messages, which would require some evidence of wrongdoing,
prosecutors instead requested the identities of the correspondents. Also
included in the request was header information like date and time and
Internet address--but not subject lines.

The federal magistrate judge balked and asked the Justice Department to
submit an additional brief to demonstrate that such a request would be
legal.

Instead, prosecutors asked Judge Hogan to step in. He reviewed the
portion of federal law dealing with "pen register" and "trap and trace"
devices--terms originating in the world of telephone wiretapping--and
concluded it "unambiguously" authorizes the e-mail surveillance request.

Though the language may be clumsy, Hogan said, the Patriot Act's
amendments authorize that type of easily obtainable surveillance of
e-mail. All that's required, he said, is that prosecutors claim the
surveillance could conceivably be "relevant" to an investigation.

Excerpt from the court's opinion:
"In 2001, Congress enacted the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (the "USA Patriot Act"), Section 216 of which explicitly
amended the authorities relating to pen registers and trap and trace
devices...by expanding the definitions of these devices to include
"processes" to obtain information about "electronic communication."

"Commenting on the very language that was finally enacted in Section 216
of the USA Patriot Act, several members of Congress highlighted the fact
that the amendments would bring the state of the law in line with
current technology by making pen registers and trap and trace devices
applicable to the Internet and--more to the point--e-mail.

"For example, a section-by-section analysis of the bill that
Representative John Conyers included in the record before the final
House vote, which contains the same language that was finally enacted by
Congress, states that Section 216 "extends the pen/trap provisions so
they apply not just to telephone communications but also to Internet
traffic."

"In addition, Senator Jon Kyl, who is currently Chairman of the United
States Senate Judiciary Subcommittee on Terrorism, Technology & Homeland
Security, noted that the same language in the Senate version of the bill
"would codify current case law that holds that pen/trap orders apply to
modern communication technologies such as e-mail and the Internet, in
addition to traditional phone lines."

"The Congressional Research Service also published a legal analysis of
the USA Patriot Act that states that the Act "permits pen register and
trap and trace orders for electronic communications (e.g., e-mail)."

"The plain language of the statute makes clear that pen registers and
trap and trace devices may be processes used to obtain information about
e-mail communications. The statute's history confirms this
interpretation and there is no support for a contrary result."

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