[8424] in cryptography@c2.net mail archive
DoJ cybercrime manual covers PDAs, encryption, secret searches
daemon@ATHENA.MIT.EDU (Declan McCullagh)
Fri Jan 12 11:32:34 2001
Message-Id: <5.0.2.1.0.20010112101035.00a2eec0@mail.well.com>
Date: Fri, 12 Jan 2001 10:12:25 -0500
To: cryptography@c2.net
From: Declan McCullagh <declan@well.com>
Mime-Version: 1.0
Content-Type: text/plain; charset="us-ascii"; format=flowed
*******
See: http://www.cybercrime.gov/searchmanual.htm
*******
http://www.wired.com/news/politics/0,1283,41133,00.html
The Feds'll Come A-Snoopin'
by Declan McCullagh (declan@wired.com)
2:00 a.m. Jan. 12, 2001 PST
WASHINGTON -- Ever wonder how much leeway federal agents have when
snooping through your e-mail or computer files?
The short answer: a lot.
The U.S. Department of Justice this week published new guidelines for
police and prosecutors in cases involving computer crimes.
The 500 KB document includes a bevy of recent court cases and covers
new topics such as encryption, PDAs and secret searches.
It updates a 1994 manual, which the Electronic Privacy Information
Center had to file a Freedom of Information Act request to obtain. No
need to take such drastic steps this time: The Justice Department has
placed the report on its cybercrime.gov site.
[...]
SECRET SEARCHES: Call it the latest trend in law enforcement:
Surreptitious breaking-and-entering of homes and offices.
In one recent secret-search case related to computers, the feds
sneaked into the office of Nicodemo S. Scarfo, the son of
Philadelphia's former mob boss, who allegedly ran a loan shark
operation in north New Jersey. Once there, they secretly installed
software to sniff Scarfo's PGP passphrase so they could decrypt his
communications.
Civil libertarians argue secret searches are unconstitutional.
"Sneak-and-peek searches may prove useful in searches for intangible
computer data. For example, agents executing a sneak-and-peek warrant
to search a computer may be able to enter a business after hours,
search the computer, and then exit the business without leaving any
sign that the search occurred," the Justice Department says.
The DOJ argues that secret searches are permissible, despite rule
41(d) of the Federal Rules of Criminal Procedure, which requires
agents to notify the person whose home or office has been broken into.
But the document admits that courts have "struggled" to reconcile this
idea with the U.S. Constitution's privacy guarantees.
To clear up any doubt, in mid-1999 the Justice Department proposed
legislation that would let police obtain surreptitious warrants and
"postpone" notifying the person whose property they entered for 30
days.
After vocal objections from civil liberties groups, the administration
backed away from the controversial bill. In the final draft of the
Cyberspace Electronic Security Act submitted to Congress, the
secret-search portions had disappeared.
[...]
ENCRYPTION: The manual doesn't address whether a criminal defendant
can be compelled to give up his passphrase to allow prosecutors to
decrypt his files.
But it does give one good reason to use useful software like PGPdisk
(available for free at pgpi.com) that can create an encrypted hard
drive partition that requires a passphrase to access.
Under current law, anyone with access to the computer you use --
including your spouse -- can allow the feds to search it without a
warrant. (Unless your files are stored on a remote computer on a
network, in which case it gets more complicated.)
But if your files are encrypted, you might be better off. "It appears
likely that encryption and password-protection would in most cases
indicate the absence of common authority to consent to a search among
co-users who do not know the password or possess the encryption key,"
the Justice Department says.
[...]
