Fergie's Tech Blog

Appeals Court Clarifies: Government Spyware Not Protected in Ruling

Kevin Poulsen writes on Threat Level:

Orin Kerr at the Volokh Conspiracy has been looking at whether the FBI can legally install its CIPAV spyware on your computer without a search warrant or wiretap order under a recent U.S. 9th Circuit Court of Appeals decision. Today the 9th Circuit clarified: no, it can't.

The original July 6th opinion in U.S. v. Forrester upheld the DEA's limited monitoring of a suspect's internet use under the low "pen register" standard, which requires only that a law enforcement agency certify that the surveillance will be "relevant" to an investigation -- no probable cause or judicial fact finding needed.

Key to the ruling was that the DEA recorded only the IP addresses of the websites the surveillance target visited, and the e-mail addresses he corresponded with, and not the content of the communication.

But the ruling didn't say how the agency performed that monitoring. Kerr wondered whether the DEA used the FBI's CIPAV tool, or something similar, and whether the 9th Circuit thus made government spyware legal under the low standard.

posted by Fergie @ 7/25/2007 04:43:00 PM