[IP] Patriot Act hearing shows DOJ access to many phone calls with less than a wiretap order

["Dave Farber" <dave@xxxxxxxxxx>]

------- Original message -------
From: Peter Swire  <peter@xxxxxxxxxxxxxx>
Sent: 22/4/'05,  9:54

Dear Dave:

            Of interest to your readers, I think, was a House Judiciary Committee hearing Thursday on Section 209 of the Patriot Act, which is entitled “Governm
ent seizure of voice mail pursuant to a search warrant.”  It turns out that this section does not apply only to voice mails and does not require a warrant.

            The important news, I think, is that Section 209 applies to all stored telephone calls.  Caching and other forms of storage will become far more com
mon with VOIP, where network-level or other caching would mean that ordinary phone calls could be stored.

            Once a phone call is stored, the government can get that record with much less than the wiretap order we all used to think applied to our phone call
s.  Under the Patriot Act, the government could get the full contents of a stored telephone call with a grand jury subpoena (no judge at all), or a 2703(d) orde
r (judicial order with less than probable cause), or a search warrant.

            At the hearing, a bipartisan group of seven members of Congress asked pointed questions of DOJ and the rest of the panel for over an hour and a half
 on this topic.  Section 209 sunsets this year, and so DOJ is seeking to get it reauthorized.

            As a result of the hearing, the Committee is sending a set of questions to the Justice Department to clarify DOJ's view of “reasonable expectation o
f privacy” in stored telephone conversations and the implications of Section 209 for VOIP and other stored telephone calls.

            NPR All Things Considered story:
<http://www.npr.org/templates/story/story.php?storyId=4612408>

      Testimony explaining Section 209:
http://www.peterswire.net/swire.house.judiciary.testimony.042105.doc

            Audio recording of the entire April 21 hearing is available from the front page of the Center for Democracy & Technology website, www.cdt.org.




Prof. Peter P. Swire

Moritz College of Law of

   the Ohio State University

John Glenn Scholar of Public Policy Research

Consultant, Morrison & Foerster, LLP

(240) 994-4142, www.peterswire.net

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