[discuss-dan] The Feds'll Come A-Snoopin'

["Pavlos Stavropoulos" <pavlos@aigis.com>]

http://www.wired.com/news/politics/0,1283,41133,00.html
> 
> The Feds'll Come A-Snoopin' 
> by Declan McCullagh 
> 
> 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. 
> 
> Pagers vs. PDAs: Anyone who's arrested 
will likely
> be patted down for guns, contraband and electronic
> 
devices. 
> 
> So be sure to yank the batteries if you're about 
to
> be nabbed. During an arrest, cops can scroll through
> the 
information on your pager without a warrant. 
> 
> What about PDAs? 
The latest word, oddly enough,
> might be a 1973 Supreme Court case, 
United States v.
> Robinson, that permitted police officers to 
conduct
> searches of an arrestee's possessions. Lower courts
> have 
extended this rule to include pagers. 
> 
> But PDAs more closely 
resemble computers in
> processing speed and storage capacity. 
> 
> Concludes the DOJ: "Courts have not yet addressed
> whether 
Robinson will permit warrantless searches of
> electronic storage devices 
that contain more
> information than pagers. If agents can examine 
the
> contents of wallets, address books and briefcases
> without a 
warrant, it could be argued that they
> should be able to search their 
electronic
> counterparts (such as electronic organizers, floppy
> 
disks and Palm Pilots) as well." 
> 
> Not everyone agrees that an 
arrest can lead to a
> full search. "The search incident to arrest is 
less
> settled," says Jennifer Granick, a San Francisco
> attorney 
specializing in computer crime law. 
> 
> Just say no: Speaking of 
portable electronics,
> here's some free advice: Don't let 'em search 
your
> car. 
> 
> Once you do, the cops will legally have 
permission
> to search the memory or storage of whatever
> 
electronics you've got stashed away. 
> 
> One federal court in the 
Southern District of New
> York, for instance, said that if the driver 
consents
> to a search, police can then look through the memory
> of 
the cell phone they found in the car. 
> 
> Workplace searches: If 
you work for a corporation or
> nonprofit group, your boss can let the 
cops rummage
> through all your stuff without a warrant. 
> 
> 
The law treats it as a "private search," and the
> Fourth Amendment's 
prohibition on unreasonable
> searches doesn't apply. Government employees 
may
> have more protections. 
> 
> If you work in a common 
area, rather than a separate
> office, be nice to your co-workers. They 
can consent
> to a search. 
> 
> Seizing computers: Believe it 
or not, the feds
> aren't usually supposed to haul away your 
computer
> gear and impound it for the next half-decade.
> Instead, 
they're supposed to scroll through the hard
> drives and either print out 
or copy files. 
> 
> But if your computer is an "instrumentality" of 
a
> crime -- if they claim it's being used to trade
> kiddie porn, 
for instance -- don't expect to see it
> anytime soon. 
> 
> 
"Off-site searches also may be necessary if agents
> have reason to 
believe that the computer has been
> 'booby trapped' by a savvy criminal," 
says the
> Justice Department. 
> 
> "Technically adept users 
may know how to trip-wire
> their computers with self-destruct programs 
that
> could erase vital evidence if the system were
> examined by 
anyone other than an expert. In these
> cases, it is best to seize the 
equipment and permit
> an off-site expert to disarm the program before 
any
> search occurs." 
> 
> "No knock" searches: Conservative 
activists may hate
> this, but "no knock" searches, where 
kevlar-clad
> goons toting M-16s break through your front door
> 
without warning, aren't going away. If anything, the
> Justice Department 
seems to think they're even more
> necessary when dealing with computer 
crimes. 
> 
> "Technically adept computer hackers have been 
known
> to use 'hot keys,' computer programs that destroy
> evidence 
when a special button is pressed. If agents
> knock at the door to 
announce their search, the
> suspect can simply press the button and 
activate the
> program to destroy the evidence," the manual says. 
> 
> It doesn't end there: The Justice Department cites a
> 1997 case, 
Richards v. Wisconsin, in which the
> Supreme Court said agents can 
conduct a no knock
> search even if the judge granting the warrant 
didn't
> approve one. That's allowed when agents have a
> 
"reasonable suspicion" that the subject of the
> search could destroy 
evidence or obstruct the
> investigation. 
> 
> 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. 
> 
> 
Border searches: If you agree to let customs agents
> search your 
computer, be prepared to deal with the
> consequences. 
> 
> 
Take the case of William Roberts, who the feds
> suspected of possessing 
child pornography and who
> was boarding a flight to Paris. "After the 
agents
> searched Roberts' property and found a laptop
> computer 
and six zip diskettes, Roberts agreed to
> sign a consent form permitting 
the agents to search
> his property. A subsequent search revealed 
several
> thousand images of child pornography," the Justice
> 
Department says. 
> 
> 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. 
> 
> 
> 
>
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>
http://www.crypto.com/papers/carnivore_report_comments.html
>
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