This revives the old debate about whether you can monitor hacker activity within your own network. I have always thought that there is no problem doing it.. first, if you have express policies on it, it likely is "consent" even if the intruder didnt expressly consent or see the warning. Second, you can monitor to prevent fraud if this is done in the ordinary course of business. Third, the USA PATRIOT exemption does allow monitoring of trespassers. Fourth, the law prohibits interception "in transmission" -- a honeypot could be set up so that the monitoring is not "in transmission" but in storage, and therefore does not violate the ECPA or Title III.

What is MORE troubling is that DOJ even considers that such actions MIGHT violate Title III. This means that they reserve the right to prosecute such offenses in the future. This could have chilling effect on the establishment of honeypots.

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Link to this comment: http://www.securityfocus.com/comments/articles/4004/19405#19405