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Bill would narrow intruder surveillance
Kevin Poulsen, SecurityFocus 2004-09-22

A proposal in the U.S. Senate would scale back a federal surveillance law that permits law enforcement agencies to electronically monitor a computer trespasser without a warrant with the consent of the victim.

Under a provision of the 2001 USA Patriot Act intended to give system owners the ability to work with officials to combat intruders, the FBI and other agencies can surveil the communications of an electronic trespasser to, from or through a computer, provided the "owner or operator of the protected computer authorizes the interception."

But in addition to intruders, the provision -- called Section 217 -- leaves legitimate users of public computers at libraries, Internet cafes, business lounges and hotels vulnerable to warrantless surveillance, based only on a suspicion that the user is engaged in some kind of unauthorized activity, argues senator Russ Feingold (D-Wisconsin), who introduced the Computer Trespass Clarification Act earlier this month.

"The computer owner authorizes the surveillance, and the FBI carries it out," said Feingold, in introducing the bill. "There is no warrant, no court proceeding, no opportunity even for the subject of the surveillance to challenge the assertion of the computer owner that some unauthorized use of the computer has occurred."

Section 217 protects users who have a contract with the computer's owner granting them access; Feingold's bill would expand that protection to users who have any authorized access to the computer, even without a contract.

The proposal would also narrow the range of cases qualifying for warrantless law enforcement surveillance to those in which the computer's owner or operator "is attempting to respond to communications activity that threatens the integrity or operation of such computer and requests assistance to protect rights and property of the owner or operator."

Additionally, it would permit officials to conduct the surveillance for only 96 hours before they'd have to go to court and get a warrant, and it would require the Justice Department to report annually to Congress on its use of the provision.

"I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking," said Feingold. "Unfortunately, the drafters of the provision made it much broader than necessary."

Enacted in response to the September 11, 2001 terrorist attacks, the 132-page USA Patriot Act passed in the Senate 98 to 1, with Feingold casting the only dissenting vote. It passed in the House 356 to 66.

Section 217 is among the provisions set to expire, or "sunset," in December, 2005, unless it's renewed by Congress.

In a July report arguing the importance of USA Patriot, attorney general John Ashcroft wrote that Section 217 merely "places cyber-intruders on the same footing as physical intruders."

"Hacking victims can seek law-enforcement assistance to combat hackers just as burglary victims can invite police officers into their homes to catch burglars," wrote Ashcroft.

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