White House Chief of Staff John Podesta on Monday announced a legislative proposal for combating cybercrime that also includes new privacy protections that would bind law enforcement officials pursuing criminal suspects, a move that could tilt debate on the subject in the direction of greater electronic civil liberties.
Podesta called the Clinton administration proposal a boost for privacy, even though it decreases legal protections for cable modem-based communications at the same time as it increases them for e-mail transferred over telephone networks.
Podesta spelled out the proposal, together with an easing of all encryption export restrictions to the member countries of the European Union and eight other nations, in a speech at the National Press Club. He said the provisions designed to attack cybercrime combine elements of the rival S. 2430, introduced by Sen. Patrick Leahy, D-Vt., and S. 2448, sponsored by Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, and Sen. Charles Schumer, D-N.Y.
The administration plan would grant law enforcement the ability to conduct "trap and trace" across state boundaries with a single court order, which also was proposed in S. 2092 by Schumer and Sen. John Kyl, R-Ariz. The administration proposal would permit multiple small attacks to be punished as if they were one large attack, while preserving the $5,000 minimum damage threshold before prosecuting hackers for computer crimes.
"If we work together, we can bridge the gaps between members of the Senate Judiciary Committee, and we can have legislation enacted," Podesta said. "We have dropped some of the most controversial elements of Hatch and Kyl."
Perhaps most controversial for Senate Republicans will be the White House's inclusion of Leahy's requirement that "pen register" warrants, which track the phone numbers of incoming calls, be approved by a judge. Under current law, a judge only must accept the statement of a government law enforcement official, according to Podesta.
But some in the high-tech industry are concerned that the administration's desire to harmonize different legal standards could end up lowering the stringent privacy standards currently set for cable modem-based communications by the 1992 Cable Television Act.
"We were pleased by the administration's clear statement that Fourth Amendment protections apply to the Internet," said Bruce Heiman, executive director of Americans for Computer Privacy. "But we still have lots of concerns about how this will be applied in the context of the extension of trap-and-trace and pen registers to Internet traffic."
Podesta said that e-mail deserved the same protections from law enforcement eavesdropping currently enjoyed by telephone callers. These include approval by a top-level Justice Department official, limiting the scope to more serious crimes, and statutory suppression evidence obtained improperly.
Hatch said Monday in a statement that he intends to seek a meeting with the White House in an effort to push through legislation this year. Leahy said he was encouraged by the administration's stance on pen register warrants.