EFFector Vol. 17, No. 10 March 24, 2004
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 282nd Issue of EFFector:
- Let the Sun Set on PATRIOT - Section 212
- Cory Doctorow to Participate in Barcelona Forum 2004
- Deep Links (23): The Other Silver Lining in Janet's Bustier
- Staff Calendar: 03.25.04 - Fred von Lohmann speaks at GW Honors Program Symposium, Washington, DC; Seth Schoen speaks on Trusted Computing, Providence, RI; 03.26.04 - Jason Schultz speaks at Duke Law School's IP Society Symposium, Durham, NC
Let the Sun Set on PATRIOT Section 212 and Homeland Security
Act Section 225:
"Emergency Disclosure of Electronic Communications to Protect
Life and Limb"
Welcome to part six of "Let the Sun Set on PATRIOT," an EFFector series on the battle to let some of the most troubling provisions in the USA PATRIOT Act expire, or "sunset." Each week, we profile one of the 13 provisions set to expire in December of 2005 and explain in plain language what's wrong with the provision and why Congress should allow it to sunset.
This week we look at PATRIOT Section 212, which allows your ISP or phone company to share your private communications with the government even if it isn't served with a search warrant. This tramples on your rights by allowing the Department of Justice to do an end-run around laws that safeguard your privacy.
Section 212 is a special case, because it has been replaced by subsequent legislation - namely, Section 225 of the Homeland Security Act (HSA) of 2002. HSA Section 225 expanded on the powers granted by PATRIOT 212, but unlike that PATRIOT provision, HSA Section 225 WILL NOT SUNSET. HSA Section 225 is now the law at issue, and as explained below, it should be repealed.
How PATRIOT Section 212 and Homeland Security Act Section 225 Changed the Law
Before PATRIOT, in order to get communications records or stored communications - such as email or voice mail - from your ISP or phone company, the FBI had to get a search warrant or court order from a judge, or get a subpoena from a grand jury. Congress gave us this protection in the Electronic Communications Privacy Act of 1986, because, even though your ISP or phone company stores messages for you, they're still your private messages. They shouldn't be shared without your consent unless a court or grand jury demands them.
After PATRIOT Section 212, your ISP or phone company could hand over your private records and messages to any law enforcement agent, as long as that communications provider reasonably believed that the immediate danger of death or serious physical injury required it to do so. This could be take place without your knowledge or consent.
But Section 212 wasn't the end of the story. The Homeland Security Act expanded the power of PATRIOT Section 212 by 1) lowering the relevant standard from "reasonable belief" of a life-threatening emergency to a "good faith belief," 2) allowing communications providers to use the emergency exception to disclose your data to any government entity, not just law enforcement, and 3) dropping the requirement that the threat to life or limb be immediate. Most significantly, HSA Section 225 does not expire, rendering the sunset of PATRIOT Section 212 irrelevant.
Why Homeland Security Act Section 225 Should Be Repealed
Communications providers now need only a "good faith" belief that there is a life-threatening emergency to justify the disclosure of your personal communications and records. This belief could be based solely on the representations of a government agent claiming that there is such an emergency - whether or not that is actually the case. This kind of abuse has already occurred: one Department of Justice attorney said he needed information to investigate a terror threat when he actually was investigating a bank robbery, while another agent cited a bio-terrorism threat in what turned out to be a drug sting.
HSA Section 225 is a prime example of how the Department of Justice has quietly and incrementally persuaded Congress to expand its powers under PATRIOT. By pushing for additional provisions in often-obscure bills, it has worked to ensure that these powers are expanded and made permanent before the public debate over PATRIOT's sunsetting provisions has even begun. This subtle legislative opportunism must be exposed and rebuked; HSA Section 225 must be repealed.
HSA Section 225 takes away your rights by allowing the Department of Justice to do an end-run around laws that protect the privacy of your personal communications. EFF strongly supports its repeal, and we urge you to support it, too. We also support the Security and Freedom Ensured Act (SAFE Act, S 1709/HR 3352) and encourage you to visit EFF's Action Center today to let your representatives know you support the bill.
We'll look at Section 201, which makes it easier for the FBI to wiretap your communications based on activities protected under the First Amendment.
- Section 220: "Nationwide Service of Search Warrants for Electronic Evidence"
- Section 209: "Seizure of Voice Mail Messages Pursuant to Warrants"
- Section 207: "Duration of FISA Surveillance of Non-United States Persons Who Are Agents of a Foreign Power"
- Section 206: "Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978"
- Section 215: "Access to Records and Other Items Under the Foreign Intelligence Surveillance Act"
Cory Doctorow to Participate in Barcelona Forum 2004
On May 9th through September 29th, 2004, the Barcelona Forum will hold a series of events at an international conference aimed at challenging media consolidation. Taking place in a specially constructed international village in Barcelona, Spain, this "Cultural Olympics" is sponsored by the United Nations, the Spanish government, the Catalan government and the city of Barcelona.
EFF Outreach Coordinator Cory Doctorow will participate in a roundtable discussion entitled "The New Information Networks During Situations of Crisis: From 11-S to 11-M" at 3:00 p.m. on May 19th.
Further details about Barcelona Forum 2004 are available at the event website: http://www.mediadialogues.org
Deep Links features noteworthy news items from around the Internet.
- Wal-Mart Offers $0.88 Download
You may save two nickels over iTunes, but the service is only for Windows, the files are wrapped in DRM and the selection is but a pale shadow of what the P2P nets offer.
- Rob Glaser Says Apple Should Open iPod
Interesting to see the CEO of RealNetworks criticize someone else for lack of openness.
- Jack Valenti to Throw Smoke Bomb, Disappear Into Night
(AP; registration may be required.)
The head of the MPAA plans to quit his day job in the next three months.
- Korean Student Arrested for Posting Political Parodies
(Registration may be required.)
One image depicted the opposition party being trounced by the Uri party in a game of Starcraft. No, seriously.
- NZ Considers Format-Shifting Exemption for CDs
Not surprisingly, the music and motion picture lobbyists are fighting the proposal.
- E-Voting Security: If You've Got It, Flaunt It
(Seattle Times; registration may be required.)
Paul Andrews on the Open Voting Consortium's solution to election security.
- Fishy Use of RFIDS
Plates equipped with the shrimpy chips are being used to tally the bill in sushi-boat restaurants.
- Money Can't Buy SCO Love
The Open Source Business Conference uninvited SCO's Darl McBride, refusing a $40,000 sponsorship check.
- Grey is the New Black and White
(Registration unfortunately required.)
The NYT on the quality of DJ Danger Mouse's "Grey Album" and the copyright debate it sparked.
- Canada One-Upping America: It's Not Just About Hockey Anymore
(Toronto Star; registration may be required.)
Our northern neighbors also have the U.S. beat in the fight for reasonable, balanced copyright law. Michael Geist with more thoughts on the decision in Law Society of Upper Canada v. CCH Canadian.
- Airlines Request Privacy Protections Before CAPPS II Is Cleared
The list of seven "privacy principles" includes the ability for travelers to review and correct their own data.
- The Other Silver Lining in Janet's Bustier
Lauren Gelman points out that Hollywood's "broadcast flag" would have prevented the public from distributing and discussing clips of the wardrobe malfunction that launched a thousand letters to the FCC.
- Two More Hollywood Insiders Busted for Piracy
(Registration may be required.)
The majority of pre-release movie piracy stems from Hollywood "leaks," and existing laws can be used to plug them. So why does the MPAA continue to push for overbroad copyright laws that would trample on the public's rights?
- .XXX: the Net's Red Light District?
Look out for laws that would put anything sexual - like sex education sites - into the filterware-ready domain.
- Indie Record Stores: P2P Turns Kids into "Music Junkies"
Business is reportedly booming for real record stores, despite tales of gloom and doom from the major labels.
- Gimme Shelter (from the SCO)
A new company is offering an insurance-like service to Linux users who are spooked by SCO's litigious ways.
- DRM Demystified
Our friends over at Public Knowledge have a new report on the ins-and-outs Digital Rights Management (DRM).
- China Gags Blogs
Bloggers who criticize the government? Let's hope that China can stop that trend before it reaches the states.
- Survey Says Spam Not Yet Canned
However, one might argue that steady levels of spam are better than the previously *rising* levels.
- Papers Run Ads for Pro-Paper E-Voting
(San Jose Mercury News; registration may be required.)
True Majority is running pro-paper trail ads in The Baltimore Sun (MD) and The Palm Beach (FL).
- Korean Copyright Holders Launch Threats Over MP3 Phone
(Registration may be required.)
Wrapping music files in DRM hasn't stopped a Korean rightsholder's group from moving to block sales of phones that play MP3s. What's next - "trusted phoning"?
For a complete listing of EFF speaking engagements (with locations and times), please visit the full calendar.
- March 25 -
Fred von Lohmann speaks at GW Honors Program Symposium,
George Washington University
5:30 p.m. - 7:00 p.m.
Seth Schoen speaks on Trusted Computing
3:30 p.m. - 4:30 p.m.
- March 26 -
Jason Schultz speaks at Duke Law School's IP Society Symposium
11:45 a.m. - 12:45 p.m.
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