“Technology Solutions” Full-Pipe Surveillance

EDUCAUSE CSG - Blacksburg

January 9, 2008

Lee Smith, Attorney

King George And The Colonies

“writs of assistance”

• In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize ''prohibited and uncustomed'' goods, and commanding all subjects to assist in these endeavors.

U.S. ConstitutionFourth Amendment

• The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.

Electronic Surveillance

• The US Supreme Court in US v. Katz, 389 US 347 (1967) extended the Fourth Amendment protection from unreasonable searches and seizures to protect individuals in a telephone booth from wiretaps by authorities without a warrant (device attached to outside wall)

• So long as an individual can justifiably expect that his conversation would remain private, his/her conversation is protected from "unreasonable search and seizure" by the Fourth Amendment.

• The Fourth Amendment protects people, not just places. Therefore, the rights of an individual may not be violated, regardless of whether or not there is physical intrusion into any given area.

• A warrant is required before the government can execute a wiretap, and the warrant must be sufficiently limited in scope and duration.

Statutes

• Title III and ECPA. Title III and the Electronic Commnunications Privacy Act make up the statutes that govern criminal wiretaps in the United States.

• FISA. The Foreign Intelligence Surveillance Act is the law that governs eavesdropping on agents of "foreign powers" within the United States, including suspected foreign terrorists.

Searches Without Warrants

• Probable Cause• Exigent Circumstances• Special Needs – US v. Heckenkamp• Terry v. Ohio Detention: Stop-and-Frisk • Incident to Arrest • “Plain View”

• Consent Searches

“Special Needs”Warrentless Search

• Jerome Heckenkamp (AKA the “eBay Hacker”), a University of Wisconsin student was convicted of federal computer crime charges for defacing eBay by hacking into Qualcomm, Cygnus Solutions and other companies.

• Heckenkamp was caught after a University system administrator hacked into his Linux box to gather evidence that Heckenkamp had been attacking the college mail server.

• The 9th Circuit ruled that such counter-hacks are allowable under the 'special needs' exception to the Fourth Amendment, and upheld the warrantless search.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JEROME T. HECKENKAMP,Defendant-Appellant.

No. 05-10322, No. 05-10323UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

2007 U.S. App. LEXIS 7806August 17, 2006, Argued and Submitted, San Francisco, California

April 5, 2007, Filed

• “Although we conclude that Heckenkamp had a reasonable expectation of privacy in his personal computer, we conclude that the search of the computer was justified under the "special needs" exception to the warrant requirement. Under the special needs exception, a warrant is not required when "'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'"

PATRIOT Act Warrantless Search

• The National Security Letter (NSL) provision of the PATRIOT Act allows the FBI to secretly demand access to records held by organizations like universities and Internet service providers without probable cause or judicial oversight

PATRIOT Act National Security Letter (NSL) Provision

18 U.S.C. §2709

• Such letters are not new. Before the Patriot Act was enacted a few weeks after the September 11, 2001, terrorist attacks, NSLs could be used in investigations of suspected terrorists and spies.

• NSLs to telecommunications firms originated with a 1986 law called the Electronic Communications Privacy Act, which permitted them only in relation to an investigation of "an agent of a foreign power." That once-strict requirement was broadened in 1993 and again by the Patriot Act eight years later.

• After the Patriot Act change to the law, the FBI needed only to say that a letter may be "relevant" to a terrorist-related investigation.

• NSLs do not require any prior review or court approval.

• NSLs impose a "gag" restriction forbidding a recipient from disclosing that they have received the letter.

Here We Come...

CALEA... Or Not!• When the FBI has a court order but an Internet service provider

can't isolate the particular person or IP address because of “technical constraints”, it takes and records all the ISP information

• “Full-pipe” surveillance can record all Internet traffic or, optionally, only certain subsets, flowing through the network.

• Interception typically takes place inside an Internet provider's network at the junction point of a router or network switch.

• It then searches through the data, while at the same time gathering lots of other information on people who just happen to be the same customer as the target.

• “You intercept first and you use whatever filtering, data mining to get at the information about the person you're trying to monitor”.

Illustration By Dustin Ingalls