Justice wants broader computer search liberties

The Justice Department seeks expanded authority to search computers protected by passwords or encryption during criminal investigations.

3 min read
The Justice Department is seeking expanded authority to search computers during criminal investigations.

The law allows investigators to examine a computer's contents obtained during a legal search but lacks the authority to let them fully crack password protections or open encrypted documents.

In a proposal before the Office of Management and Budget, called the Cyberspace Electronic Security Act (CESA), the Justice Department hopes to change that.

"Essentially, Justice is not looking for any more authority than it already has in obtaining evidence," said a Clinton administration official today. "The agency is looking to update its authority so that it is appropriate for the current level of technology."

In the example of a child pornography investigation, law enforcement might obtain a search warrant covering pictures, photos, videotapes, and the like. If Internet distribution of child pornography is suspected, the warrant might also include computers and documents contained on them.

But if the documents are encrypted, law enforcement cannot open them. "What Justice is looking for is the authority to get plain text, photos, or whatever, so they're looking for the encryption key," the official said.

Once OMB receives a proposal of this nature, it circulates it to other agencies, such as the Commerce Department and Treasury Department, and receives comment. OMB can then issue an administration proposal and could send CESA to legislators or have the Justice Department do so.

The Justice Department's argument plays in part on fears of terrorism, where a suspected group is under surveillance, but encrypted documents are not accessible to investigators.

"If we don?t have the key to decode the encryption, Justice may be missing out on time," the official said. "These documents may spell out when, where, and how."

The issue of expanded computer search authority is not a novel pursuit in Washington.

Last month the Clinton administration drafted a plan to create two broad, FBI-controlled computer monitoring systems designed to protect the nation's key data networks from interlopers.

The proposal called for monitoring of nonmilitary government systems and networks used in the banking, telecommunications, and transportation industries, and the creation of something called the Federal Intrusion Detection Network (Fidnet), which would deposit its data findings with an interagency task force housed by the FBI.

Privacy experts see what the Justice Dept. is asking for differently.

"This is the scariest proposal we?ve seen come out of the government in a long time," said David Sobel, general counsel for the Electronic Privacy Information Center. "We see this as a major expansion of the most intrusive investigative techniques used by law enforcement, which is the surreptitious entry to private premises. This is something that is used very infrequently today, typically to place a hidden microphone."

Privacy experts said the government was only granted permission for surveillance of this kind about 50 times last year. The proposal could multiple that to tens of thousands, because any computer with encryption would be vulnerable to search.

Sobel said the Justice Dept. may be talking about terrorists and child pornographers, but he sees a more likely use: tax investigations. "You become of interest to the IRS, they know you have encryption on your home computer, they get a warrant and the next thing you know your house has been broken into."

Some experts liken the proposal to the U.S. seizure laws enacted in the 1980s to attack drug trafficking. The legislation empowered law enforcement to confiscate goods or monies related to suspect crimes without trial. Intended to remove valuable assets from drug dealers, the seizure laws more typically snared private citizens not involved in drug dealings, said experts.

Seizure laws allow confiscation of goods on the suspicion of a crime. No charges need to be filed. Privacy experts warned open season on computers using encryption could lead to similar privacy violations. Suspicion would be enough for extended surveillance or search.