Key New Surveillance Provisions Professor Peter P. Swire Ohio State University Privacy 2001 Conference October 4, 2001

Distinctions in Current Law n Content v. pen/trap – content and strict Title III – pen register (who you called) – trap and trace (who called you) – pen/trap if relevant to an investigation n Title III and FISA – Foreign intelligence orders from special court – FISA orders not revealed after the fact

Proposed Changes to Pen/trap n Update telephone language – device to device or process n Telephone number to broader Internet uses – Dialing, routing, addressing, or signaling n Nationwide trap and trace – Multiple orders now required for

Computer trespasser exception n Current law: – ISP can monitor its own system – ISP can give evidence of yesterdays attack – ISP cannot invite law enforcement in to catch the burglars n Problem for: – DOD and many hack attacks – small system owners who need help

Computer trespasser proposal n Law enforcement can surf behind if: – Targets person who accesses a computer without authorization – System owner consents – Lawful investigation – Law enforcement reasonably believes that the information will be relevant – Interception does not acquire communications other than those transmitted to or from the trespasser

FISA proposals n Roving wiretaps – Suspects use multiple phones and computers n Sharing with law enforcement – Currently, FISA only if foreign intelligence gathering is the principal purpose – Proposed, if it is a purpose (Bush) or a significant purpose (House)