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[FYI] (Fwd) DoJ cybercrime manual covers PDAs, encryption, secret se

------- Forwarded message follows -------
Date sent:      	Fri, 12 Jan 2001 10:12:25 -0500
To:             	cryptography@c2.net
From:           	Declan McCullagh <declan@well.com>
Subject:        	DoJ cybercrime manual covers PDAs, encryption, secret searches

See: http://www.cybercrime.gov/searchmanual.htm


    The Feds'll Come A-Snoopin'
    by Declan McCullagh (declan@wired.com)

    2:00 a.m. Jan. 12, 2001 PST
    WASHINGTON -- Ever wonder how much leeway federal agents have when
    snooping through your e-mail or computer files?

    The short answer: a lot.

    The U.S. Department of Justice this week published new guidelines
    for police and prosecutors in cases involving computer crimes.

    The 500 KB document includes a bevy of recent court cases and
    covers new topics such as encryption, PDAs and secret searches.

    It updates a 1994 manual, which the Electronic Privacy Information
    Center had to file a Freedom of Information Act request to obtain.
    No need to take such drastic steps this time: The Justice
    Department has placed the report on its cybercrime.gov site.


    SECRET SEARCHES: Call it the latest trend in law enforcement:
    Surreptitious breaking-and-entering of homes and offices.

    In one recent secret-search case related to computers, the feds
    sneaked into the office of Nicodemo S. Scarfo, the son of
    Philadelphia's former mob boss, who allegedly ran a loan shark
    operation in north New Jersey. Once there, they secretly installed
    software to sniff Scarfo's PGP passphrase so they could decrypt
    his communications.

    Civil libertarians argue secret searches are unconstitutional.

    "Sneak-and-peek searches may prove useful in searches for
    intangible computer data. For example, agents executing a
    sneak-and-peek warrant to search a computer may be able to enter a
    business after hours, search the computer, and then exit the
    business without leaving any sign that the search occurred," the
    Justice Department says.

    The DOJ argues that secret searches are permissible, despite rule
    41(d) of the Federal Rules of Criminal Procedure, which requires
    agents to notify the person whose home or office has been broken
    into. But the document admits that courts have "struggled" to
    reconcile this idea with the U.S. Constitution's privacy

    To clear up any doubt, in mid-1999 the Justice Department proposed
    legislation that would let police obtain surreptitious warrants
    and "postpone" notifying the person whose property they entered
    for 30 days.

    After vocal objections from civil liberties groups, the
    administration backed away from the controversial bill. In the
    final draft of the Cyberspace Electronic Security Act submitted to
    Congress, the secret-search portions had disappeared.


    ENCRYPTION: The manual doesn't address whether a criminal
    defendant can be compelled to give up his passphrase to allow
    prosecutors to decrypt his files.

    But it does give one good reason to use useful software like
    PGPdisk (available for free at pgpi.com) that can create an
    encrypted hard drive partition that requires a passphrase to

    Under current law, anyone with access to the computer you use --
    including your spouse -- can allow the feds to search it without a
    warrant. (Unless your files are stored on a remote computer on a
    network, in which case it gets more complicated.)

    But if your files are encrypted, you might be better off. "It
    appears likely that encryption and password-protection would in
    most cases indicate the absence of common authority to consent to
    a search among co-users who do not know the password or possess
    the encryption key," the Justice Department says.


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