[Infowarrior] - Pentagon revising computer-snooping policy

[Richard Forno]

Monday, January 7, 2008
Last modified Monday, January 7, 2008 4:08 AM PST

http://www.nctimes.com/articles/2008/01/07/news/top_stories/15_50_901_6_08.t
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Pentagon revising computer-snooping policy

By: TERI FIGUEROA - Staff Writer
Search-and-seizure warnings prompted outcry from military attorneys
obligated to protect client communications.

A warning to users of military computers that government agents could seize
-- without cause or a warrant -- anything found on the machines is now under
revision, the top legal adviser in the Marine Corps said this week.

"The key aspect of the revision is to make certain that we maintain the
protections of privileged communications" within the Marine Corps and the
Department of Defense, staff Judge Advocate Brig. Gen. James Walker said
this week in a telephone interview from his Pentagon office. "It is a
problem, and I honestly think it is going to be fixed."

The warning, which appeared on all military computers as the user booted up
the machine, raised eyebrows shortly after it was posted on all Marine Corps
computers in early December. For a few weeks, the first words on the screens
of military computer users when they started the machines stated that law
enforcement agents could search and seize whatever they desire ---- for any
reason or none at all.

Marine Corps lawyers representing defendants in the military justice system,
including Marines facing war crimes trials in the deaths of Iraqis, said a
policy that allowed the government to read their correspondence and see
their work jeopardized the attorney-client privilege central to a providing
a full defense.

A November memo from the Pentagon detailing the new policy stated that
privileged communications remain protected from search and seizure.

That piece of information, however, did not appear on the warnings that
showed up on the computer screens.

The policy "is not intended to negate any privilege recognized by law," Maj.
Patrick Ryder, a spokesman for the office of the secretary of defense, wrote
in an e-mail Thursday to the North County Times.

Ryder also noted that the proposed policy "does not seek to broaden" the
Pentagon's authority over searching and seizing any information found on
military computers. Instead, Ryder wrote, the purpose of the new policy was
twofold: to clarify the old policy that allowed for search and some
authorized seizures, and to make the warning language standard throughout
all military branches.

"In general terms, the main difference in the two user consent banners is
that the updated version seeks to make it clearer to users what they are
consenting to when they use a DoD (Department of Defense) computer," Ryder
wrote.

But there remains a problem with the revised banner warnings that appeared
on the computers last month. Ryder said one of the services brought up a
concern with the banner warning and it was pulled until that concern --
which Ryder declined to define -- could be resolved.

On Wednesday, Walker said the banner on computer screens came down late last
week.

That was welcome news to David Blair-Loy, the legal director of the American
Civil Liberties Union of San Diego and Imperial Counties.

"I think that's entirely appropriate," Blair-Loy said of the decision to
pull the warning and revise the policy. "In criminal cases, it impacts the
constitutional right to counsel. We are very glad they are going to revise
the policy."

The November change in the banner warning policy came in response to a
ruling from the Court of Appeals of the Armed Forces -- the military
equivalent to the Supreme Court -- after the military high court overturned
the conviction of a lance corporal on drug charges.

The lance corporal had allegedly sent e-mails from her military computer
detailing her drug use. The military high court, however, found the junior
service member had an expectation of privacy regarding e-mails sent using
the military computer, because the military had not adequately notified her
that her computer could be searched and the communications could be used
against her.

Contact staff writer Teri Figueroa at (760) 631-6624 or
tfigueroa at nctimes.com.