Footnotes

1 President's Commission on Critical Infrastructure Protection, Critical Foundations: Protecting America's Infrastructures, Oct. 1997 at ix. See <Error! Bookmark not defined..>.

2 Robert L. Jackson, First Computer Wiretap Yields Hacking Charges, L.A. TIMES, Mar. 30, 1996 at A-10. Ardita has not been prosecuted for his crimes because the charges against him are not extraditable offenses under Argentine law. However, when notified by U.S. authorities, Argentinean officials seized Ardita's computer hardware and software and are investigating filing charges there. If arrested, tried and convicted in the United States, Ardita could face penalties totaling a maximum of 20 years in prison. Id.

3 Exec. Order No. 13,010, 61 Fed. Reg. 37,347 (1996), as amended by Exec. Order No. 13,025, 61 Fed. Reg. 58,625 (Nov. 13, 1996), Exec. Order No. 13,041, 62 Fed. Reg. 17,039 (Apr. 3, 1997), reprinted in 42 U.S.C. § 5195 (1996) at 174.

4 See <http://www.pccip.gov/faq.html.>. Members included top officials from the National Security Agency, Central Intelligence Agency, Federal Bureau of Investigation, Department of Defense, Department of Justice, and private sector executives from AT&T, IBM and Pacific Gas & Electric.

5 President's Commission on Critical Infrastructure Protection, Critical Foundations: Protecting America's Infrastructures, Oct. 1997. See <Error! Bookmark not defined..>. [hereinafter PCCIP Report].

6 Id. at A-1. Emergency services include police, fire, rescue and emergency medical services. Government services include Social Security payments, unemployment, disability payments and management of vital records. Physical distribution includes highways, railways, ports, waterways, mass transit, and trucking and delivery companies. Id.

7 PCCIP Report, supra note 5, at ix-xi.

8 See infra p. 28 and note 111.

9 PCCIP Report, supra note 5, at 85. The Report recommends a presidential proposal for doubling the Federal Infrastructure Assurance budget for Research and Development from $250 million to $500 million in fiscal year 1999, increasing to $1 billion in fiscal year 2004. This budget currently funds research and development of information security. The increase will support research to develop a national cyber defense, including real time threat detection, identification and response tools. The increase also includes research and development funds for "intrusion monitoring and detection." Id. at 89.

10 PCCIP Report, supra note 5, at 79. In order to facilitate a viable response, the Attorney General must have immediate resources and support of defense and intelligence agencies with expert knowledge in the "cyber arena."

11 For example, use of supermarket club cards tracks purchases and spending habits to help commercial vendors develop targeted marketing campaigns, but in turn save the consumer money. However, consider the implications if insurance companies accessed this information and denied coverage to regular purchasers of cigarettes, alcohol, high fat or high sugar products.

12 The Internet serves as the backbone of the National Information Infrastructure and the developing Global Information Infrastructure collectively known as "cyberspace." See infra pp. 18-28.

13 U.S. CONST. art. II, § 1, cl. 8.

14 U.S. v. U.S. Dist. Ct. Eastern Dist. of Mich., 407 U.S. 297, 310, 92 S. Ct. 2125, 2133, 32 L. Ed. 2d 752, 761 (1972). Keith, as this case is commonly referred, involved a defendant charged with bombing the CIA office in Ann Arbor, Michigan. The Attorney General justified the surveillance conducted without prior judicial approval based on a reasonable exercise of the President's power to protect national security. For further discussion of this case, see infra pp. 11, 43-45 and note 37.

15 Id.

16 National Security Act of 1947, ch. 343, 61 Stat. 495 (codified as amended at 50 U.S.C. §§ 401-432 (1988 & Supp. V 1993)). Through the National Security Act of 1947, Congress set forth a "comprehensive program for the future security of the United States; to provide for the establishment of integrated policies and procedures for the departments, agencies and functions of the Government relating to national security." Id.

17 Charles L. Evans, U.S. Export Controls of Encryption Software: Efforts to Protect National Security Threaten U.S. Software Industry's Ability to Compete in Foreign Markets, 19 N.C. J. INT'L L. & COM. REG. 469, 478 (1994). Truman sent a memorandum to the Secretary of Defense and Secretary of State authorizing creation of the NSA. The government kept this memo secret for over 30 years. Id. See also National Security Agency web site at <http://www.nsa.gov.8080/about/.>. The directive gave the NSA exclusive responsibility for the "signals intelligence and communications security activities of the Government." In addition, a 1984 presidential directive assigned the NSA the mission of protecting information systems security for national security systems. Id.

18 Exec. Order No. 12,333, 46 Fed. Reg. 59,941, 59,942 (1981). The Order declares the goal of the Intelligence Community to "provide the President and National Security Council with the necessary information on which to base decisions concerning the conduct and development of foreign, defense and economic policy, and the protection of United States national interests from foreign security threats." Id. The Department of Defense is responsible for operating and controlling the NSA. Id. at 59,946-7.

19 U.S. CONST. art. II, § 2, cl. 1. The President would delegate electronic surveillance of the Internet as a matter of national security to the NSA. Overseen by the Director of Central Intelligence through the Department of Defense, the NSA has the ability to conduct intelligence gathering and counterintelligence through electronic surveillance techniques both inside and outside the United States under the umbrella of "national security." Exec. Order No. 12,333, supra note 18 at 59,946-8. See also <Error! Bookmark not defined..>. Since the power to conduct electronic surveillance ultimately resides in the executive branch, this paper uses the terms "executive" and "presidential" power instead of NSA, FBI or other agency who might be delegated such power by the President.

20 U.S. CONST. amend. I - VIII. The Bill of Rights consists of Amendments I - VIII of the United States Constitution, although some scholars argue that Amendments IX and X should also be included.

21 U.S. CONST. amend. IV [emphasis added].

22 Id.

23 See Camera v. Municipal Ct., 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930, 934 (1967).

24 Katz v. U.S., 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

25 Id. Previously in Olmstead v. U.S., 277 U.S. 468, 48 S. Ct. 564, 72 L. Ed. 944 (1928), the Court held that a telephone wiretap permitting eavesdropping on defendant's conversations did not constitute a search for Fourth Amendment purposes and was not subject to the warrant requirement. The Court required a physical intrusion to trigger Fourth Amendment protections. Subsequently, Congress enacted the Federal Communications Act, 48 Stat. 1103 (1934), 47 U.S.C. § 605 (1964), which became the first legislation restricting wiretaps. The FCA criminalized the interception, divulgence or publishing of the contents of wire and radio communications by any person. In Nardone v. U.S., 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314 (1937), the Court construed the FCA to apply to Federal agents and held evidence obtained through interception of wire communications were inadmissible. Up until the Katz decision in 1967, however, the Justice Department, through subsequent administrations, generally continued to authorize national security wiretaps, asserting that the FCA only applied and made unlawful conduct outside the federal arena. See STEPHEN DYCUS, ET AL., NATIONAL SECURITY LAW, 2d. Ed. 615 (1997).

26 389 U.S. at 353, 88 S. Ct. at 512, L. Ed. 2d at 580.

27 Id.

28 389 U.S. at 358, 88 S. Ct. at 515, L. Ed. 2d at 583. Footnote 23 of the opinion states "whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving national security is a question not presented by this case." [emphasis added]

29 Note that the Fourth Amendment only protects against "unreasonable" searches and seizures. U.S. CONST. amend. IV.

30 As noted supra note 25, a statute restricting private and government interceptions already existed in the FCA of 1934.

31 18 U.S.C. §§ 2510-2520 (1996).

32 S. REP. NO. 90-1097, at 66, reprinted in 1968 U.S.C.C.A.N. at 2153.

33 See 18 U.S.C. § 2518 (1994)

34 See 18 U.S.C. § 2511(3) (1976) repealed by Pub. L. No. 95-511, 92 Stat. 1797 (1978).

35 Electronic Surveillance Task Force, Communications Privacy in the Digital Age (June 1997). See <Error! Bookmark not defined..>. See also 18 U.S.C. § 2511 (1994).

36 See 18 U.S.C. § 2518(7) (1994).

37 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). See supra note 14. This case took place during Nixon's administration when several domestic groups were accused of bombing buildings. The President authorized warrantless wiretaps to monitor the domestic groups in the interest of national security. Only two days prior to the rendering of this decision, authorities arrested five intruders to the Democratic National Committee Headquarters who were trying to plant electronic surveillance devices - the initiation of Watergate.

38 Id. at 309, 2132, 760.

39 See discussion infra p. 13.

40 Even Fourth Amendment protection seemed unclear because of the ease in which e-mail messages can be intercepted and read by third parties (i.e. system administrators). To date, no case has dealt with the issue of whether e-mail has a "reasonable expectation of privacy" to require a warrant. Although this article is limited in scope to the national security exception of the Fourth Amendment warrant requirement. See discussion infra pp. 30-38.

41 S. REP. NO. 99-541 at 6 (1986).

42 U.S. v. Seidlitz, 589 F.2d 152 (4th Cir. 1978), cert. denied, 441 U.S. 922 (1979) verified that "wire communication" as defined in Title III did not include computer transmissions, and Congress likewise responded.

43 18 U.S.C. § 2510(12) (1996).

44 Therefore, for the purposes of this paper, assume that Title III and ECPA restrictions apply to Internet communications as defined above.

45 See 18 U.S.C. § 2516(1)(a)-(p) (1996). Congress originally limited wiretapping authorization to 26 crimes, including espionage, treason, violent crimes, and offenses related to organized crime. In 1996, the list had grown to 95 crimes including cases involving false statements on passport applications and loan applications involving U.S. property. Electronic Surveillance Task Force, Communications Privacy in the Digital Age, Interim Report, June 1997. See <Error! Bookmark not defined..>.

46 18 U.S.C. § 2703(d). See also 18 U.S.C. § 2516(1) (Supp. V 1987).

47 Robert W. Kastenmeier et al., Communications Privacy: A Legislative Perspective, 1989 WIS. L. REV. 715 (1989).

48 See 18 U.S.C. § 2511(2)(g)(i). This exception provides lawful government interception and monitoring of public Internet web sites, Usenet groups, bulletin board systems and chat rooms.

49 50 U.S.C. §§ 1801 et seq. (1994), Pub. L. No. 95-511, 92 Stat. 1783 (1994).

50 This incentive also came from lower court decisions in the interim and the Supreme Court's refusal to grant certiorari to cases involving related issues. See U.S. v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960 (1974) (finding the President's foreign affairs powers included protection of national security in that arena and permitted warrantless electronic surveillance for the purpose of collecting foreign intelligence). See also U.S. v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 475 U.S. 944 (1976) (court held Fourth Amendment warrant requirement applied to domestic organization with no ties to foreign power but questioned in dicta whether any national security exception to warrant requirement would be constitutionally permissible).

51 S. REP. NO. 604, 95th Cong., 1st Sess. 15, reprinted in U.S.C.C.A.N. 3904, 3916 (1978).

52 50 U.S.C. §§ 1801 et seq., Pub. L. No. 95-511, 92 Stat. 1783 (1994). 'Foreign power' is defined in § 1801 (a) as a foreign government or any component thereof, a faction of a foreign nation or nations, an entity acknowledged by foreign government(s), a group engaged in international terrorism or activities in preparation.

Agent of foreign power is defined in § 1801(b).

United States persons (including citizens and PRAs) are not agents of a foreign power unless they 'knowingly engage in clandestine intelligence gathering activities for or on behalf of a foreign power, sabotage or international terrorism which activities may involve or involve violation of criminal statutes of the United States." See 50 U.S.C. § 1801(b)(2)(A)(C) (1994).

53 Id. Electronic surveillance of a foreign power or its agents may not be conducted unless the FISA Court authorizes it in advance.

54 50 U.S.C. § 1805(a)(3), (a)(5) (1994). FISA defines foreign intelligence information as:

(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against

(A) actual or potential attack or other grave hostile acts of a foreign power or agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to

(A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States." 50 U.S.C. § 1801(e) (1994).

55 See 50 U.S.C. § 1803 (1994).

56 See 50 U.S.C. § 1801(h)(1)-(4). Minimization procedures must be adopted by the Attorney General and include:

(1) "reasonably designed" specific procedures that "minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting U.S. persons;" and

(2) procedures preventing the dissemination of nonpublicly available information (other than foreign intelligence information) that identifies any U.S. person without that person's consent, "unless... identity is necessary to understand or access importance [of foreign intelligence information]. Id.

However, FISA does allow for retention and dissemination of information for law enforcement purposes that is "evidence of a crime which has been, is being, or is about to be committed." § 1801(h)(3).

Furthermore, with respect to electronic surveillance authorized by FISA, the Act prohibits disclosure or any use of the contents of a communication to which a U.S. person is a party for longer than 24 hours unless:

(1) a court order is obtained and

(2) "the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person." § 1801(h)(4).

57 50 U.S.C. § 1802(a)(1)(A)-(C).

58 See supra p. 12.

59 50 U.S.C. § 1801(f)(4) defines electronic surveillance as "the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes." [emphasis added] For discussion of the application to the Internet, see infra pp. 41-46.

60 As discussed infra pp. 31-35, no court decision or statute yet recognizes a reasonable expectation of privacy on the Internet.

61 692 F.2d 141, 148, 223 U.S. App. D.C. 417, 424 (1982). Belfield involved a statutory and constitutional challenge to FISA authorized electronic surveillance. Defendants were charged with crimes based on evidence gathered from the surveillance and requested disclosure of the related information. The court held that an ex parte determination of surveillance legality in camera did not violate FISA and FISA did not violate the constitutional protections of the Fifth and Sixth Amendments. Id.

62 Id.

63 Exec. Order No. 12,333, 46 Fed. Reg. 59,941 (1981).

64 Id.

65 Id. at 59,947.

66 Id. at 1.12(b)(1)-(7). Signals intelligence includes all types of communication activities. Id.

67 David S. Eggert, Executive Order 12,333: An Assessment of the Validity of Warrantless National Security Searches, 1983 DUKE L.J. 611 (1983).

68 692 F.2d 141, 223 U.S.App.D.C. 417 (1982). See supra p. 16 and note 61.

69 807 F.2d 180 (D.C. Cir. 1986), 257 U.S. App. D.C. 35 (1986). The court examined the Fourth Amendment and Title III requirements for a warrantless wiretap on the home of a former National Security Council staff member. Citing the Supreme Court decision in Keith, the court stated "it is now clear that [the Fourth Amendment's warrant requirement] attaches to national security wiretaps that are not directed against foreign powers or suspected agents of foreign powers." Id. at 185. However, the court alluded to the existence of a national security exception and that a "special rule" is required if "the purported national security motivation would have been reasonable." Id. at 187-88.

70 Id. at 187. The court mentions cases where national security concerns have prompted reduced due process requirements, see Haig v. Agee, 453 U.S. 280, 309, 101 S. Ct. 2766, 2783, 69 L. Ed. 2d 640, 657 (1981); increased government ability to interfere with First Amendment interests, see Snepp v. U.S., 44 U.S. 507, 509 n. 3, 100 S. Ct. 763, n.3, 62 L. Ed. 2d 704 (1980); and authority to conduct warrantless searches, see U.S. v. Truong Dinh Hung, 629 F.2d 908, 913-16 (4th Cir. 1980).

71 See discussion supra p. 16 and note 62.

72 Now known as the Defense Advanced Research Projects Agency [DARPA]. DARPA continued to oversee the ARPAnet until 1983, when the network was given its present designation, the Internet.

73 PCCIP Report, supra note 5, at 17.

74 ROBERT H. REID, ARCHITECTS OF THE WEB xx (1997).

75 Id. at xxi.

76 "Protocols are sets of commands and sequences that computers use to communicate over a network." Id. at xxiii.

77 Id.

78 ROBERT H. REID, ARCHITECTS OF THE WEB xx (1997).

79 Microsoft WordTM for Office '97 Internet Assistant Conversion filter and reader.

80 Even local coffee shops have sprung up advertising Internet access with a cappuccino.

81 For example, people are "regulated" by their physical existence. When cars were invented, the regulations on where people could go (speed, safety, etc.) changed. Further changes occurred with the advent of airplanes, and now space travel. The implications if the Star Trek concept of "transporting" actually existed and lifted almost all current physical regulation are enormous, especially from a law enforcement standpoint. The former regulations on information and communications imposed by the physical existence of paper have been abolished by the Internet.

82 Utilities are developing and transitioning to the use of Intenet-related computer networks for monitoring services. The PCCIP Report recognizes energy and vital human services such as the 911 system and water supplies as being dependent on the Internet for full functioning. See PCCIP Report, supra note 5, at 10.

83 The current encryption debate over exportation of strong encryption is an example. For a brief discussion, see infra p. 34. See Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY L.J. 869 (1996) (discussion of indirect government regulation on cyberspace through government control over code, i.e. encryption).

84 Exec. Order No. 13,010, supra note 3.

85 Gary Chapman, Is the Internet a Matter of National Security?, L.A. TIMES, Sept. 22, 1997, at D-4.

86 PCCIP Report, supra note 5, at 9.

87 See supra p. 1.

88 PCCIP Report, supra note 5, at 9.

89 Id. at 4.

90 This concept presents extra constitutional issues, which are discussed infra p. 36.

91 PCCIP Report, supra note 5, at 9.

92 Greg Rattray, The Emerging Global Information Infrastructure and National Security, 21-FALL FLETCHER F. WORLD AFF. 81, 82 (1997).

93 Id.

94 Torey K. Byles, Director of Market Research Giga Information Group.

95 International Data Corporation, The Global Market Forecast for Internet Usage and Commerce, July 1997.

96 Id.

97 A trojan horse is defined as a tool used by hackers which appears benign to an unsuspecting system but once penetrated threatens security of data or system resources. Logic bombs are another tool often designed to go off at a specific time to destroy technology and allow access.

98 PCCIP Keynote Address, National Information Systems Security Conference, Oct. 7, 1997.

99 PCCIP Report, supra note 5, at 9.

100 A recent search conducted by the author via a popular search engine located several web sites dedicated to disseminating information related to illegal conduct. Recent legislation introduced in the Senate amends 18 U.S.C. § 842 (1) to make unlawful the distribution "by any means information pertaining to...the manufacture of explosive materials, if the person intends or knows such information will be used for or in furtherance of, an activity that constitutes a Federal offense..." See S. 1762 Sec. 1088.

101 Scott Charney and Kent Alexander, Computer Crime, 45 EMORY L.J. 931, 935 (1996).

102 Id. at 936. The article continues to point out, however, that new technology is being developed to assist system administrators in detecting cyber invaders through Computer Anomaly Detection Systems (CADS). Id.

103 See supra p. 1. The case of the Julio Cesar Ardita is a perfect illustration of this type of attack.

104 PCCIP Report, supra note 5, at 15-16.

105 See American Banker, Cyber Terrorism at <Error! Bookmark not defined..>.

106 This also rises concern over jurisdiction and prompts the question "where are you when you are in cyberspace?"

107 U.S. Information Agency, White House Fact Sheet on Counter-Terrorism Measures. See <http://www.epic.org/privacy>.

108 Id.

109 PCCIP Report, supra note 5, at 58. Designation as an office devotes additional personnel and monetary resources dedicated to monitoring threats to the infrastructure.

110 PCCIP Report, supra note 5, at 17.

111 Id. at 81. The Commission recommends that Congress consider amending the Defense Production Act Declaration of Policy to include a finding that "critical infrastructures are essential to national security." These critical infrastructures referred to include the Internet. Id. See supra pp. 2-3.

112 See supra p. 26.

113 John Carlin, A Farewell to Arms, WIRED, May 1997, at 51, 226.

114 Terri A. Cutreta, The Constitution in Cyberspace: The Fundamental Rights of Computer Users, 60 UMKC L. REV. 139, 142-3 (1991).

115 Computer Security Enhancement Act of 1997, 143 CONG. REC. H7293-03 (Sept. 16, 1997).

116 Katz v. U.S., 389 U.S. at 361, 88 S. Ct. at 517, 19 L. Ed. 2d at 586.

117 U.S. CONST. amend. IV.

118 389 U.S. at 361, 88 S. Ct. at 517, 19 L. Ed. 2d at 586.

119 Id.

120 This ability prompted Congressional legislation in the "Communications Decency Act" (CDA), Title V of 47 U.S.C.A. § 223 (Supp. 1997) which was struck down by the Supreme Court last term in Reno v. A.C.L.U., 1997 WL 348012 (1997).

121 This obviously includes First Amendment considerations, however, this paper focuses on right to privacy.

122 According to a recent analysis of Internet web sites, the number of sites devoted to weapons manufacturing, terrorism, racism, bigotry and other illegal activities increased 300% in just the past few months. Simon Wiesenthal Center, Racism, Mayhem and Terrorism: The Emergence of an Online Subculture of Hate, CD-ROM, West Los Angeles, California (Oct. 1997).

123 A thorough analysis of Internet monitoring for law enforcement purposes is outside the scope of this paper. However, the existence of this technology raises the question of whether the government would be justified in conducting such monitoring because this information could be considered "readily accessible to the general public." See ECPA exception supra p. 13.

124 See <http://www.anonymizer.com>. By first logging on to the Anonymizer web site before proceeding with their surfing, users can allegedly mask their identity from all subsequent sites.

125 U.S. v. Keith, 407 U.S. at 311-12, 92 S. Ct. at 2134, 32 L. Ed. 2d at 761-62.

126 Id. at 312, 2134, 762.

127 Harvard Law Review Association, Keeping Secrets in Cyberspace: Establishing Fourth Amendment Protection for Internet Communication, 110 HARV.. L. REV. 1591, 1604 (1997). See also Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 HARV. J.L. & TECH. 75 (1994).

128 110 HARV. L. REV. 1591, 1604 (1997).

129 George B. Trubow, Constitution vs. Cyberspace, 5 BUS. L. TODAY 41, 44 (1996).

130 For an examination of the current key escrow and cryptograhy debate, see generally Michael Froomkin, The Metaphor is the Key: Cryptography, The Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709 (1995). See also Anjali Singhal, The Piracy of Privacy? A Fourth Amendment Analysis of Key Escrow Cryptography, 7 STAN. L. & POL'Y REV. 189, 191 (1996).

131 Wiretap Nets a Hacker in a Cybermonitoring First, NEWSDAY, Mar. 30, 1996, at A-06.

132 Id.

133 David Banisar, Roadblocks on the Information Superhighway, 41 FED. B. NEWS & J. 495, 498 (1994).

134 Id.

135 Banisar, supra note 133, at 498.

136 143 CONG. REC. H7293-03, Sept. 16, 1997.

137 See U.S. CONST. amend. IV which provides protection only against "unreasonable searches and seizures..."

138 See supra p. 11.

139 Anjali Singhal, The Piracy of Privacy? A Fourth Amendment Analysis of Key Escrow Cryptography, 7 STAN. L. & POL'Y REV. 189, 191 (1996).

140 Niccolo Machiavelli, Discourses on the First Ten Books of Titus Livius (1531). DANIEL BAKER, POWER QUOTES, 159 (1992).

141 Richard Posner, The Uncertainty of Privacy Protection by the Supreme Court, 1979 SUP. CT. REV. 173, 176.

142 Gary H. Anthes, Private Affairs, COMPUTERWORLD, Nov. 20, 1995, at 66.

143 U.S. CONST. art. II, § 1, cl. 8. See supra pp. 6-7.

144 See Katz v. U.S., 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) and U.S. v. U.S. Dist. Ct. Eastern Dist. of Mich., 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). See supra pp. 8, 11.

145 See 18 U.S.C. §§ 2510-2520. See also supra pp. 9-13.

146 See 50 U.S.C. §§ 1801 et seq., Pub. L. No. 95-511, 92 Stat. 1783 (1994). See also supra pp. 13-16.

147 Id.

148 See supra p. 28.

149 See supra p. 13 and note 50. See also 18 U.S.C. § 2511 (1994).

150 PCCIP Report, supra note 5, at 79.

151 407 U.S. at 321-24, 92 S. Ct. at 2138-40.

152 Id. at 322, 2139.

153 Id.

154 Id. at 322-23, 2139.

155 This does not mean that the fruits of warrantless national security Internet surveillance could not be used in the prosecution of traditional crimes. As long as the initial purpose of the surveillance is lawful, courts have held that the information gathered from the surveillance can be used in prosecutions if a neutral magistrate later determines it to have been lawfully obtained. See U.S. v. Truong Dinh Hung, 629 F.2d 908, 913-16 (4th Cir. 1980). See also supra note 70. The court in Chagnon v. Bell rejected the argument that a warrant is required for a national security wiretap to obtain foreign intelligence information when the "primary purpose" is prosecutorial. 642 F.2d 1248 (D.C. Cir. 1980), cert. denied, 453 U.S. 911, 101 S. Ct. 3142, 69 L. Ed. 2d 694 (1981). Chagnon involved an action against the Attorney General for damages based on allegedly illegal electronic surveillance. Furthermore, the court stated that as long as an "objectively reasonable" national security purpose exists, proof that the national security purpose predominates is not necessary to justify the legality of the surveillance. Id. at 1260-61. See also Halperin v. Kissinger, 807 F.2d 180, 189, 257 U.S. App. D.C. 35, 44 (1986).

156 See supra p. 1.

157 Lawrence Lessig, Reading the Constitution in Cyberspace, 45 EMORY L.J. 869, 881 (1996).

158 See supra p. 3.

159 U.S. CONST. amend. IV. The Fourth Amendment requires a warrant be issued "particularly describing the place to be searched, and the persons or things to be seized." Id. When defending against attack or searching cyberspace for information to prevent attack, intelligence officials cannot be expected to set forth such detailed requirements.

160 See flowchart summarizing argument infra App. A, at A-1.

161 PCCIP Report, supra note 5, at 64.

162 Id.

163 Id. at 19-20.

164 See 47 U.S.C. §§ 1001-1010, Pub. L. 103-414, Title I, (1994), 108 Stat. 4279.

165 In 1994, Congress passed the FBI endorsed CALEA, also known as the Digital Telephony Act. A discussion of this bill is beyond the scope of this paper because CALEA's focus is on domestic regulation of telecommunications companies and the encryption debate.

166 PCCIP Report, supra note 5, at 24.

167 Id.

168 First Conference on Computers, Freedom and Privacy Keynote Address, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier, Mar. 26, 1991.

169 Joshua Quittner, Invasion of Privacy - Our Right to be Left Alone, TIME, Aug. 25, 1997, at 59.

170 John Carlin, A Farewell to Arms, WIRED, May 1997, at 222.