“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. Constitution
Fourth 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
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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. 05-10323
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 7806
August 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.
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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.
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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