Administration Proposes Legislation for Searches and Seizures in Cyberspace

(July 18, 2000) John Podesta, White House Chief of Staff, gave a speech in Washington DC on July 17 in which he outlined a Clinton administration proposal for legislation to define rules governing searches and seizures in cyberspace.

"Basically, the same communication, if sent different ways -- through a phone call, or a dial-up modem -- is subject to different and inconsistent privacy standards," said John Podesta. "It's time to adopt legislative protections that map these important privacy principles onto the latest technology. It's time to update and harmonize our existing laws to give all forms of technology the same legislative protections as our telephone conversations."

Podesta read a speech to a group a several dozen mostly journalists at the National Press Club on Monday morning, July 17. While he proposed new legislation, the Clinton administration has not released a draft of any such bill. Also, since the current Congress, and the Clinton administration, are both about to end, it is highly unlikely that any such bill would become law.

However, Podesta outlined the administration's proposal.

"First, current statutes set standards that only apply to wiretaps -- traditional hardware "devices" -- not to software programs that can conduct the same surveillance. Such telephone-era laws should be clearly updated to apply to the Internet era where hardware and software can be interchangeable. Our proposed legislation does that: It would amend statutes using outmoded language and that are hardware-specific, so that they are technologically neutral. In other words, the legislation would apply equal standards to both hardware and software surveillance."

"Second, we need to achieve parity in the way the laws apply to different forms of communication. The current law sets stricter standards for law enforcement access to "wire" communications such as telephone calls, than for "electronic" communications such as e-mail." said Podesta. "Our proposed legislation would harmonize the legal standards that apply to law enforcement's access to e-mails, telephone calls, and cable services."

The administration proposal would also address cable Internet access. Podesta stated that "we propose to change the standards that apply to cable services. Under the current Cable Act, even where there is clear proof of serious crimes, law enforcement cannot gain access to subscriber records, unless the customer can first contest the issue in court. With our proposal, we would retain the underlying purpose of the Cable Act to keep confidential the list of shows that a customer has watched. But, when cable systems are used to access the Internet, we believe the rules should be the tough, but sensible standard we also support for e-mails and telephone calls.

Podesta also covered currently controversial "trap and trace" surveillance. He said that "we need, to update current law governs when law enforcement can track the identity of those with whom we communicate. Our "trap and trace" rules come from the era of the traditional telephone network, when one company offered nationwide phone service."

"Today, we are proposing ways to make these "trap and trace" rules more effective for law enforcement, while also assuring privacy and civil liberties." However, Podesta did not clarify, either in his speech, or in the question and answer session, proposals for trap and trace rules for Internet communications. Nor did he offer a distinction between transactional and content information.

Podesta did state that "We believe that a state or federal court should be able to issue an order to trace a communication to its source -- irrespective of whether that communication has been channeled through various telephone or Internet providers. We also believe that there should be greater judicial oversight of trap and trace authorities."

Finally, Podesta stated that the Computer Fraud and Abuse Act should be updated. "The Act should be strengthened to take account of the full range of damages caused by computer attacks. Small attacks -- with under $5,000 damage -- should be treated as a misdemeanor and not as a felony as proposed by some in Congress. However, multiple small attacks should be treated as one large attack and punished accordingly. And we should match punishments to the crime, by eliminating mandatory jail time for less serious attacks."

This proposal comes very late in the current administration. It is highly unlikely that it would be enacted into law. The current Congress is wrapping up business before adjournment. The Congress is about to recess for the national political conventions, and its traditional August and Labor Day recess. It will then convene for a short period before recessing again for the election campaigns. When the next Congress -- the 107th -- meets in late January, Clinton will no longer be President, and John Podesta will no longer be Chief of Staff.