DOJ's Already Monitoring Modems
By Declan McCullagh and Ben Polen
4:42 p.m. Nov. 28, 2001 PST

WASHINGTON -- The Department of Justice already is using its new anti-terrorism powers to monitor cable modem users without obtaining a judge's permission first.

A top Bush administration official lauded the controversial USA Patriot Act at a Senate hearing on Wednesday, saying that the new abilities have let police obtain information in investigations that was previously unavailable.

"We would not have been able to do (this) under prior law without a specific court order," said Michael Chertoff, assistant attorney general in the Justice Department's criminal division.

Previously, federal law said that "a cable operator shall not disclose personally identifiable information concerning any subscriber." Section 211 of the USA Patriot Act changes the law to read: "A cable operator may disclose such information if the disclosure is ... to a government entity."

Other USA Patriot Act sections mean that police can obtain an Internet Protocol address, which identifies a cable modem subscriber, as readily as they can learn someone's telephone number.

Chertoff said the government also has used its new powers to obtain court orders for logs from Internet providers that are outside of the court's traditional jurisdiction.

"We've obtained court orders directed to out-of-district Internet service providers for logging information.... We've used the nationwide search warrant provision to obtain relevant information," Chertoff said. "We've used the emergency disclosure provisions to support our use of information that was provided to us by an Internet service provider."

Senate Judiciary chairman Patrick Leahy called the hearing to review some of the Bush administration's recent actions that have raised concerns among civil libertarians, such as detaining over a thousand suspects, and the creation of secret military tribunals to try suspected terrorists.

Leahy said in his opening remarks: "Whether any or all of these ideas are popular or unpopular at the moment, as an oversight committee, we accept our duty to examine them."

The anti-terrorism law that President Bush signed last month amended the Cable TV Privacy Act and Title 18, Section 2703 of the U.S. Code's title 18 to faciliate greater eavesdropping.

It also made it easier for government agencies to share information with each other, Chertoff said: "We have used it to start the process of sharing information between the intelligence side and the law enforcement side."

Attorney General John Ashcroft has said the FBI began using the powers mere hours after President Bush signed the law. The Justice Department has prepared a "field guidance" manual (PDF) for prosecutors.

Sen. Orrin Hatch of Utah, the senior Republican on the committee, said he thought the Bush administration was responding appropriately to the Sept. 11 terrorist attacks.

"The administration can take these positions," Hatch said. "They have to justify them, but they can take them, and I think there's more than enough information here to justify the positions they've taken."

The Department of Defense has been responsible for drafting the guidelines for the military tribunal, but can ask the Department of Justice for assistance. "The Department of Defense can ask us for help," Chertoff said.

Leahy replied: "I hope you wouldn't wait for an invitation. Pick up the phone and call them."

Attorney General Ashcroft was invited to speak at this hearing but declined to attend, and instead is scheduled to appear at a hearing on Dec. 6.

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