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Of Pen Registers and the Patriot Act


Imagine, if you will, that you’ve been spammed by a fellow who also happens to correspond with someone who happens to be tangentially connected to al qaeda in some way (relative? pen pal? internet porn spammer?). You have absolutely no connection to these folks whatsoever, other than the fact that your e-mail address happens to have been the recipient of some e-mail spam, but your address shows up on the directory of the initial spammer. Whose address shows up on the hard drive of the al qaeda-connected-somehow fellow. (Who may, coincidentally, have also been the recipient of some mis-directed e-mail or piece of spam that might somehow have been connected to someone who is somehow connected to al qaeda…see where I’m going with this?)

The Federal government is just going to take a peek at the e-mail, realize you aren’t participating in any wrongdoing, that you were the inadvertant recipient of random spam, and move on to a more productive target, right?

Not according to U.S. District Judge Thomas Hogan, whose decision on Feb. 2, 2006, okayed a world of surveillance possibilities under the Patriot Act, according to this article on CNet.

Instead of asking to eavesdrop on the contents of the e-mail messages, which would require some evidence of wrongdoing, prosecutors instead requested the identities of the correspondents. Also included in the request was header information like date and time and Internet address–but not subject lines.

The federal magistrate judge balked and asked the Justice Department to submit an additional brief to demonstrate that such a request would be legal.

Instead, prosecutors asked Judge Hogan to step in. He reviewed the portion of federal law dealing with "pen register" and "trap and trace" devices–terms originating in the world of telephone wiretapping–and concluded it "unambiguously" authorizes the e-mail surveillance request.

Though the language may be clumsy, Hogan said, the Patriot Act’s amendments authorize that type of easily obtainable surveillance of e-mail. All that’s required, he said, is that prosecutors claim the surveillance could conceivably be "relevant" to an investigation.

Well, that’s a pretty open-ended investigation, wouldn’t you say? Which pretty much leaves the door open to track every piece of e-mail spam that goes across the web, so long as it crosses the path of some specific potential target. Looks like Judge Hogan is going with the Professor Turner Viagra spam menace theory.

And what happens to these lists of e-mail recipients once the government starts compiling them? Do they eventually get deleted, or is there a file on every person who has received e-mail in the last five years sitting around somewhere…just in case. I’d like to think there is some oversight, some check or balance, but I’m not currently optimistic based on what we’ve seen from Congress thus far.

So much for the Fourth Amendment. Talk about a waste of limited resources — no wonder FBI folks are making a lot of Pizza Hut calls for take-out these days.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com