USA: Judges OK warrantless monitoring of Web use
Privacy rules don't apply to Internet messages, court says
Bob Egelko, Chronicle Staff Writer

Saturday, July 7, 2007
 
Federal agents do not need a search warrant to monitor a suspect's
computer use and determine the e-mail addresses and Web pages the suspect
is contacting, a federal appeals court ruled Friday. 

In a drug case from San Diego County, the Ninth U.S. Circuit Court of
Appeals in San Francisco likened computer surveillance to the "pen
register" devices that officers use to pinpoint the phone numbers a
suspect dials, without listening to the phone calls themselves. 

The U.S. Supreme Court upheld the use of pen registers in 1979, saying
callers have no right to conceal from the government the numbers they
communicate electronically to the phone companies that carry their calls. 

Federal law requires court approval for a pen register. But because it is
not considered a search, authorities do not need a search warrant, which
would require them to show that the surveillance is likely to produce
evidence of a crime. 

They also do not need a wiretap order, which would require them to show
that less intrusive methods of surveillance have failed or would be
futile. 

In Friday's ruling, the court said computer users should know that they
lose privacy protections with e-mail and Web site addresses when they are
communicated to the company whose equipment carries the messages. 

Likewise, the court said, although the government learns what computer
sites someone visited, "it does not find out the contents of the messages
or the particular pages on the Web sites the person viewed." 

The search is no more intrusive than officers' examination of a list of
phone numbers or the outside of a mailed package, neither of which
requires a warrant, Judge Raymond Fisher said in the 3-0 ruling. 

Defense lawyer Michael Crowley disagreed. His client, Dennis Alba, was
sentenced to 30 years in prison after being convicted of operating a
laboratory in Escondido that manufactured the drug ecstasy. 

Some of the evidence against Alba came from agents' tracking of his
computer use. The court upheld his conviction and sentence. 

Expert evidence in Alba's case showed that the Web addresses obtained by
federal agents included page numbers that allowed the agents to determine
what someone read online, Crowley said. 

The ruling "further erodes our privacy," the attorney said. "The great
political marketplace of ideas is the Internet, and the government has
unbridled access to it." 

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http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/07/07/BAGMNQSJDA1.DTL

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