PC Magazine
How Patriot Act Search Warrants Can Affect All of Us Online
Tue Mar 23 12:37:12 2004
63.228.146.155

Big Brother Is Watching
How Patriot Act Search Warrants Can Affect All of Us Online

By Lance Ulanoff - PC Magazine
http://abcnews.go.com/sections/scitech/ZDM/big_brother_commentary_pcmag_040218.html

March 18— A recent Associated Press article about the FBI raiding an Ohio-based chat host company's offices and confiscating its servers sent a chill up my spine.

The FBI acted on information that someone may have used the service for hacking. It was within its jurisdiction, obtaining a warrant for the search and seizure. But it's what they could do with those servers and the information stored on them that really has me spooked.

I've visited Internet chat rooms. They tend to be useless, annoying affairs where, along with potentially interesting discourse, there are always a dozen or so idiots trolling for online sexual banter. Spend three minutes in any chat room and you're likely to get either a pop-up note or a direct question in the live thread that asks: "ASL?" (Age, Sex, Location). It's annoying and this intrusion usually drives me right out of the virtual room, but others stay.

Chat rooms enjoy wide popularity across the Net, and I doubt we'll ever see them fade away. I think this one, based in the Columbus suburbs, was pretty nickel and dime. Even so, people who visit chat rooms of any size and scope can become a pretty devoted bunch, so I'm sure the servers will show some frequent participants. There are also hundreds of looky-loos — people who drop in for a time, find nothing particularly interesting and then drop out, probably never to return again.

A Suspect Until Proven Innocent

Now here's where the story gets scary.

These chat rooms' servers have IPs and probably e-mail addresses (if not much more) stored on them about both the regulars and the "just-passing-through" users. Since the FBI was looking for someone who may have hacked someone else's computer through the aforementioned chat hosting service, everyone came under scrutiny.

In other words, if you ever visited that chat room and participated (or maybe just looked around) you're a suspect.

This brings me back to my concern about the FBI's (heck, any federal agency's) technical acumen.

How good are they really about ferreting out the difference between someone who may have done something to attack another user and someone who was just hanging out? What if someone turned another user's system into a zombie and it attacked another computer. Who will the FBI go after then?

Right now, I'm envisioning a series of frightening home raids where the FBI confiscates personal computers from anyone they think may have been involved.

Powerful Patriot Act

This new Big Brother-ish environment is fueled, to some extent, by the Patriot Act, which is giving federal authorities far more latitude in their pursuit of cybercriminals.

I have no love for jerks that create viruses and attack or take over other people's PCs, but I worry that the Feds now have more power than they know what to do with. I believe this is primarily because they don't understand just how twisted the thread of cyberterrorism can become and how hard it can be to trace an attack to its correct origin.

Let's, for argument's sake, consider the possibility that the FBI knows exactly how to tell the good IPs and e-mail addresses from the bad ones.

What about all that other information that's on those servers? There could be home addresses, credit card info, personal e-mails, you name it.

Who gets to draw the line about what the FBI can see? A warrant to confiscate a server is like giving the FBI a warrant to search every house in the state of Maine. The level and kinds of information that could be on the servers is certainly as varied as what you could find in a few thousand homes.

I Was Framed, I Tell You

It gets worse.

Now say some employee at the unfortunate chat host company has recently been slammed by pornographic spam e-mail. A user was annoyed by the way he was treated in the chat room, so he signed up the chat administrator (by using an e-mail he got in a reply from the administrator) for a dozen porn services. He did it so fast that the admin's spam and content filters have actually missed some of the e-mails.

Joe Administrator deleted the e-mails as soon as they arrived, but he accidentally left Outlook's preview pane open and a message or two, complete with the porno graphics, loaded into his message window. One message happened to contain a kiddie porn shot that had been passed around the Net so many times that no one, including the porn company, realized it was an illegal shot of a 12-year-old.

The FBI, in its analysis of the servers, stumbles across this image in the admin PC's cache and finds that it was stored as part of his mailbox. Now he's under scrutiny for trafficking child porn. This can actually happen.

See how scary it can get?

My words of warning to you are this: Think twice, even three times, before visiting a chat room, message group, or any site where you are interacting with hundreds of people you don't know. We all love community, and making connections with other people is what drives this world. But as long as Big Brother is watching, we're all at risk.

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==========================

SNEAK AND PEEK SEARCH WARRANTS AND THE USA PATRIOT ACT -


Al-Arian trial may become test case
St. Petersburg Times, FL - Mar 22, 2004
... full of legal analysis vanished after a search of the cell ... The constitutionality of the USA Patriot Act. ... The agents obtained 152 warrants over several years to ...

In the early 1990s, Sami Amin Al-Arian was a popular computer engineering professor at the University of South Florida. He was also earning a national reputation as an activist for Muslims.

The FBI had another label: terrorist.

Agents began investigating Al-Arian and others connected to the World and Islam Studies Enterprise, a think tank operated at USF. The agents obtained 152 warrants over several years to wiretap phones and fax lines. The requests for intelligence-only wiretaps were reviewed in Washington by an obscure panel of judges who make up the Foreign Intelligence Surveillance Court.

The wiretaps came with a catch. The Department of Justice operated under the belief that the evidence obtained could not be used to prosecute the targets, only to gather intelligence. The agents were not even allowed to tell colleagues on the investigative side of the FBI what the wiretaps were uncovering.

The restrictions were created after the Watergate scandal when there were concerns the FBI could be used to spy on political enemies.

Then came the Sept. 11 attacks. Congress passed an act entitled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, better known as the USA Patriot Act. Attorney General John Ashcroft quickly rewrote the rules, breaking down the wall between the FBI's intelligence side and investigative side.

On Nov. 18, 2002, an appeals court shattered the wall entirely, ruling the Department of Justice had consistently misinterpreted the rules about sharing evidence. This cleared the way for agents to swap intelligence material.

Three months later, on Feb. 20, 2003, agents arrested Al-Arian.

* * *

The 50-count indictment accused Al-Arian and seven other men of supporting, promoting and fundraising for Palestinian Islamic Jihad, which the U.S. government had declared a terrorist group.

Only Al-Arian and three others - Sameeh Hammoudeh, Hatem Fariz and Ghassan Ballut - were arrested. The other four remained free overseas.

The indictment did not accuse Al-Arian of planning or carrying out any attacks by Palestinian Islamic Jihad. Instead, it focused on allegations that he was the group's financial planner and a chief U.S. fundraiser.

Prosecutors revealed that agents had taped 21,000 hours of conversations during almost a decade of surveillance. Most of the conversations were in Arabic.

The prosecutors hit an early snag when they admitted that they were mistaken about the identity of a person Fariz spoke to in one recorded phone conversation. It was not a leader of the Palestinian Islamic Jihad, as was alleged, but someone else.

Federal magistrate judge Mark Pizzo said that meant some of Fariz's phone calls could be legitimate fundraising for charities and not Palestinian Islamic Jihad. He characterized the case against Fariz as "not substantial," and set him free on bail. Ballut was also released on bail.

The prosecutors, however, persuaded the magistrate judge to keep Al-Arian and Hammoudeh in jail. This pretrial confinement spurred a whole other set of controversies.

Al-Arian and Hammoudeh began complaining about conditions at the prison. The Coleman Federal Correctional Complex in Sumter County does not normally hold inmates awaiting trial, just those who have already been convicted.

Al-Arian and Hammoudeh complained of a lack of pencils to take notes, limited phone calls to their lawyers, poor law library facilities and strip searches. The defense lawyers complained that they had to wait up to two hours to see their clients once they arrived at the prison.

This month, lawyers for the two men said in court that during a search of cells guards took two full notebooks from Al-Arian and Hammoudeh covered by attorney-client privilege. Prison officials have been unable to locate the notebooks.

U.S. Magistrate Judge Thomas McCoun put an end to some of the strip searches and secured proper writing materials. McCoun, however, remained skeptical about some of the other complaints, saying that prison officials painted a different picture.

Early on, Al-Arian had to cut loose his first lawyer when he could not come up with the money to pay him. Some lawyers estimated the price for defending Al-Arian in the $2-million range.

The judge assigned him two experienced defense attorneys. Al-Arian bristled at having court-appointed lawyers and opted to represent himself. Meanwhile, his supporters across the country continued to raise money for a legal defense fund. In October, high-profile Washington lawyer Bill Moffitt and Tampa lawyer Linda Moreno announced that they were taking on the case.

"We believe these are the civil rights cases of the 21st century," Moffitt said at his initial news conference. "It tells us a lot about the type of society we're going to be post-9/11."

Much of the courtroom action has focused on the exchange of evidence, especially taped conversations. The prosecutors have said that no more than 800 hours are relevant to the case. The defense attorneys, however, do not want to take their word for it. They say information from the other 20,000 hours might help their defense.

Fariz's lawyers from the Federal Public Defenders Office and Ballut's court-appointed attorney have estimated that translating all the tapes from Arabic to English would cost about $540,000. Judge McCoun has balked at the expenditure. He has encouraged the defense lawyers to first focus on translating the conversations the prosecutors have indicated might have some relevance.

At Coleman, Al-Arian and Hammoudeh are making their way through the taped conversations referred to in the indictment, though their attorneys have continually complained the listening devices keep breaking, the batteries fail and they don't have enough time to make a thorough review.

* * *

The coming months promise more clashes.

The content of the tapes, none of which has been played in court, is already in dispute.

Al-Arian and some of the defense lawyers have suggested that the contents of some of the tapes are hard to hear. They will also challenge the prosecutors' interpretations of what was said. Al-Arian argued last year that Arabic has many dialects, and it takes a skilled translator to distinguish the real meaning of what the speakers are saying. Literal translations can be misleading, he said.

Another looming fight involves the court's efforts to re-create files inadvertently destroyed by the federal clerk's office in Tampa. The files, which included 1995 search warrants for Al-Arian's home and office, were erroneously purged by court employees who were trying to cut down on excess paper during a move to the new federal courthouse.

Following guidelines for reconstructing case files, Judge McCoun recently asked the lawyers involved in the case at the time to turn over any of the documents they have in their files that originally made up the public files. But as of last week, there appeared a good chance that the files would not be completely reconstructed.

The missing documents could open a door for Al-Arian's attorneys. Moreno said they must have the documents to scrutinize the lawfulness of the searches, whether the searches exceeded the scope laid out in the warrants and any other possible violations of the Fourth Amendment, which protects against unlawful searches and seizures.

"The agents removed a massive amount of materials," Moreno said. "We believe (the destroying of the files) poses a grave problem to the prosecution of the case."

Former federal prosecutor John Fitzgibbons said the defense lawyers have a duty to raise the issue. But he wasn't so sure they would prevail. A lot could depend on how well the files are reconstructed, and the reliability of the documents used to do so. "The reconstruction will probably never satisfy Dr. Al-Arian," he said. "In the back of his mind he will always think the government phonied up the documents."

Moffitt has argued that Al-Arian had the constitutional right to support political organizations, whether by making speeches or raising money. He compared Al-Arian's case to the prosecution of suspected U.S. communists in the 1950s and antiapartheid activists in South Africa. He argued that much of the indictment outlines alleged activity that took place before the United States declared the Palestinian group a terrorist organization.

The activities included speeches, attending conferences and raising money. The fundraising, in particular, Moffitt said, was essential to Al-Arian's political opposition to Israel's occupation of the West Bank and Gaza Strip.

But U.S. District Judge James Moody rejected the free speech argument this month. He stated in a 69-page ruling that the prosecutors are not trying to criminalize speech, they are simply using the defendants' conversations to show the existence of the conspiracies and their participation in them.

Moreno, however, pointed to another part of the ruling, calling it critical to their case. Moody wrote that it is not enough to show the defendants knew of past unlawful activity. The government needs to prove that the defendants intended to further the group's unlawful activities. A jury might infer this was the intent, the judge wrote, if the group kept committing illegal acts and the supporters, knowing that, kept providing funds. Tampa defense attorney Steve Crawford, a former federal prosecutor, said all the issues add up to the makings of a major legal confrontation. "I think it is safe to say that this will be a precedent-setting case," Crawford said. "It is one of the first and most high-profile cases brought since the Patriot Act was passed."

- Graham Brink can be reached at 813 226-3365 or brink@sptimes.com
[Last modified March 22, 2004, 01:20:26]

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