[145519] in cryptography@c2.net mail archive
Re: Obama administration seeks warrantless access to email headers.
daemon@ATHENA.MIT.EDU (Steven Bellovin)
Fri Jul 30 15:57:05 2010
From: Steven Bellovin <smb@cs.columbia.edu>
In-Reply-To: <20100730095808.3c440413@jabberwock.cb.piermont.com>
Date: Fri, 30 Jul 2010 21:23:41 +0200
Cc: cryptography@metzdowd.com, skelm@bfk.de
To: "Perry E. Metzger" <perry@piermont.com>
On Jul 30, 2010, at 3:58 08PM, Perry E. Metzger wrote:
> On Fri, 30 Jul 2010 09:38:44 +0200 Stefan Kelm <skelm@bfk.de> wrote:
>> Perry,
>>=20
>>> The administration wants to add just four words -- "electronic
>>> communication transactional records" -- to a list of items that
>>> the law says the FBI may demand without a judge's approval.
>>> Government
>>=20
>> Would that really make that much of a difference? In Germany,
>> at least, the so-called "judge's approval" often isn't worth
>> a penny, esp. wrt. phone surveillance. It simply is way too
>> easy to get such an approval, even afterwards.
>=20
> It is significantly harder here in the US.
Actually, no, it isn't. Transaction record access is not afforded the =
same protection as content. I'll skip the detailed legal citations; the =
standard now for transactional records is 'if the governmental entity =
offers specific and articulable facts showing that there are reasonable =
grounds to believe that the contents of a wire or electronic =
communication, or the records or other information sought, are relevant =
and material to an ongoing criminal investigation." This is much less =
than the "probably cause" and specificity standards for full-content =
wiretaps, which do enjoy very strong protection.
> Equally importantly, it is
> much simpler to determine what warrants were issued after the fact.
>=20
Not in this case. Since the target of such an order is not necessarily =
the suspect, the fact of the information transfer may never be =
introduced in open court. Nor is there a disclosure requirement here, =
the way there is for full-content wiretaps.
--Steve Bellovin, http://www.cs.columbia.edu/~smb
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