Wireless Security.pdf - PDF Archive

Security and the Law 327
14.5.6 Emergency Disclosures by Communications Providers
Previous law relating to voluntary disclosures by communication service providers
was inadequate for law enforcement purposes in two respects. First, it contained no
special provision allowing communications providers to disclose customer records or
communications in emergencies. If, for example, an ISP independently learned that one
of its customers was part of a conspiracy to commit an imminent terrorist attack,
prompt disclosure of the account information to law enforcement could save lives.
Because providing this information did not fall within one of the statutory exceptions,
however, an ISP making such a disclosure could be sued in civil courts. Second, before
the USA Patriot Act , the law did not expressly permit a provider to voluntarily disclose
noncontent records (such as a subscriber’s login records) to law enforcement for purposes
of self-protection, even though providers could disclose the content of communications
for this reason. Moreover, as a practical matter, communications service providers
must have the right to disclose to law enforcement the facts surrounding attacks on
their systems. For example, when an ISP’s customer hacks into the ISP’s network,
gains complete control over an e-mail server, and reads or modifies the e-mail of other
customers, the provider must have the legal ability to report the complete details of the
crime to law enforcement.
The USA Patriot Act corrected both of these inadequacies. The law was changed to
permit, but not require, a service provider to disclose to law enforcement either content
or noncontent customer records in emergencies involving an immediate risk of death or
serious physical injury to any person. This voluntary disclosure, however, does not create
an affirmative obligation to review customer communications in search of such imminent
dangers. The amendment here also changed the ECPA to allow providers to disclose
information to protect their rights and property.
14.5.7 Pen Register and Trap and Trace Statute
The pen register and trap and trace statute (the pen/trap statute) governs the prospective
collection of noncontent traffic information associated with communications, such as
the phone numbers dialed by a particular telephone. Section 216 of the USA Patriot Act
updates the pen/trap statute in three important ways: (1) the amendments clarify that law
enforcement may use pen/trap orders to trace communications on the Internet and other
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