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Precedent for Warrantless Net Monitoring Set
highcon writes "According to this editorial from SecurityFocus, a recent case of a drug dog which pushed the limits of "reasonable search" may have implications for Internet communications in the U.S. This Supreme Court case establishes a precendent whereby "intelligent" packet filters may be deployed which, while scanning the contents of network traffic indiscriminently, only "bark" at communication indicative of illegal activity."
Just in case:
Of Dog Sniffs and Packet Sniffs
Why a Supreme Court decision on canine-assisted roadside searches opens the door to a new regime of Internet surveillance.
By Mark Rasch Feb 08 2005 11:21AM PT
The Fourth Amendment to the U.S. Constitution is supposed to be the one that protects people and their "houses, places and effects" against "unreasonable searches." Forty-two years ago, the U.S. Supreme Court held that attaching a listening device to a public pay phone violated this provision because the Constitution protects people, not places, and because the Fourth Amendment prohibits warrantless searches without probable cause if the target enjoys a reasonable expectation of privacy.
Last month the U.S. Supreme Court effectively decimated this principle in a case that could have a profound impact on privacy rights online.
The case, decided by the court on January 24th, had nothing to do with the Information Superhighway, but rather an ordinary interstate highway in Illinois. Roy Caballes was pulled over by the Illinois State Police for speeding. While one officer was writing him a ticket, another officer in another patrol car came by with a drug sniffing dog.
There was absolutely no reason to believe that Caballes was a drug courier -- no profile, no suspicious activity, no large amounts of cash. The driver could have been a soccer mom with a minivan filled with toddlers. Under established Supreme Court precedent, while the cops could have looked in the window to see what was in "plain view," the officers had neither probable cause nor reasonable suspicion to search Caballes' car, trunk, or person.
Well, you know what happened next -- the dog "sniff" indicated that there might be drugs in the trunk, which established probable cause to open the trunk, where the cops found some marijuana.
The government may soon deploy "intelligent" packet search filters that will seek out only those communications that relate to criminal activity.
Now here is where things get dicey for the Internet. In upholding the dog's sniff-search of the trunk, the Supreme Court held that it did not "compromise any legitimate interest in privacy." Why? Because, according to the court, "any interest in possessing contraband cannot be deemed 'legitimate.'" The search was acceptable to the court because it could only reveal the possession of contraband, the concealment of which "compromises no legitimate privacy interest."
The expectation "that certain facts will not come to the attention of the authorities" is not the same as an interest in "privacy that society is prepared to consider reasonable," the court wrote.
In other words, the search by the dog into, effectively, the entire contents of a closed container inside a locked trunk, without probable cause, was "reasonable" even though the driver and society would consider the closed container "private" because the search only revealed criminal conduct.
The same reasoning could easily apply to an expanded use of packet sniffers for law enforcement.
Currently, responsible law enforcement agencies limit their warrantless Internet surveillance to the "wrapper" of a message, i.e., e-mail addresses or TCP/IP packet headers, unless they have a court order permitting a more intrusive search. Looking at the "outside" of the communication has been treated as similar to looking at the outside of a vehicle -- and maybe peering into the window a bit. To peek inside the communication -- read the content -- required that you first get someone in a black robe involved.
The experiences of Mr. Caballes (the soccer mom, or me or you ) changed all that. The government is practically invited to peek inside Internet traffic and sniff out evidence of wrongdoing. As long as the technology -- like a well-trained dog -- only alerts when a crime is detected, it's now legal.
As context-based search technology improves, the government may soon have the ability to take Carnivore one better and deploy "intelligent" pack
As this anonymous post on security focus points out:
The obvious error in this analysis is that the relevant privacy protections that apply online are statutory, not constitutional. So they are unaffected by Caballes.
My pics.
Kerry would have had absolutely zero effect on this decision whatsoever, but it doesn't surprise me in the least that someone who wishes to make that connection would himself not have clue one about the Constitution.
Amendment 3: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
What is stopping you from encrypting all of your traffic now? Are you waiting for a campaign to be started so you can sign up for a petition and write to your congressperson? Ef that, just start now, with yourself. The more people use crypto (even for benign slashdot) and the lower the signal to noise ratio for the spooks. Try surfing with TOR for beginners.
No, they wouldn't get their asses handed to them. Cops do it all time time in DUI checkpoints.
My father-in-law, who is an ex-cop, once explained to me that DUI checkpoints are legal as long as the cars are searched in a pre-determined sequence (every other car, every sixth car, whatever.) Still seems unconstituional to me, but that's the law here in PA.
Why wait? Start now with GPG / PGP on your email.
... but I've done my part.
... they'd have to go back to doing what they have always done ... wait for some sort of evidence by other means.
I have advertised my public key for years. No one has ever used it
Do yours.
If all email was encrypted there is NO way that law enforcement officers could decrypt it all. Nope
Do a google search for "Pen Registers" or "Tap and Trace". Apparently, back before the internet, the government decided that they didn't need a warrant to put a little device on people's phone lines that just gave them a list of the numbers that were called and recieved, as long as it didn't monitor the conversation.
This carries over to email. The FBI can request a list of everyone your email account emailed, and everyone that emailed you without a warrant. Yahoo has at least 6 employees who's entire job is to just give this information to the government all day. The figure I heard was about 1 request per thousand users per year.
You may say, "great, I use my own domain for email", but once 1/2 of all email goes to Yahoo, MSN, Google, and AOL, all the governement has to do is ask them a list of 1/2 the people you emailed.
I'm surpised that this doesn't bother more people. I mean, chances are it happened to a few slashdot users today.
Fine, true enough about Carnivore's retirement. If you want to be pedantic, do this on my post: :%s/Carnivore/tcpdump/g ...or Ethereal, or any other packet sniffer/logger. Throw in some AI to parse all those packets and check for data the feds would consider "of interest".
Happy? My main point remains regardless of the technology the FBI chooses...
Is Capitalism Good for the Poor?
Well, what about the other two prongs to be considered?...
1)Dog sniffed out marijuana during a legitimate traffic stop.
2)Whether there's a legitimate privacy interest being protected.
The first prong would still require some appropriate reason ('probable cause' created by dog) to investigate an individual's packets, and only until a reasonable point (free from being unduly detained) under the Fourth Amendment.
Admittedly, an automated packet sniffer might fit this definition, although whether such a sniffer would be 'sui generis' like the dog, I don't know, but I suspect not. [Here is where a law review article might be useful.]
Second, the case here is over possession of drugs, whereas packets may be more like communication that would be entitled to constitutional privacy interests.
Besides, SCOTUS did decide to determine the question narrowly, saying "The question on which we granted certiorari, 541 U.S. 972, 159 L. Ed. 2d 84, 124 S. Ct. 2219 (2004), is narrow: "Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop."" limiting its potential application to online packet sniffing.