Part of me doesn’t want to comment on the Mark Sanford news, because it’s all so tawdry and inconsistent with the respectable, family-friendly tone of Freedom to Tinker. But since everybody from the Gray Lady on down is plastering the web with stories, and because all of this reporting is leaving unanalyzed some Internet law questions, let me offer this:

On Wednesday, after Sanford’s confessional press conference, The State, the largest newspaper in South Carolina, posted email messages appearing to be love letters between the Governor and his mistress. (The paper obscured the name of the mistress, calling her only “Maria.”) The paper explained in a related news story that they had received these messages from an anonymous tipster back in December, but until yesterday’s unexpected corroboration of their likely authenticity, they had just sat on them.

Did the anonymous tipster break the law by obtaining or disclosing the email messages? Did the paper break the law by publishing them? After the jump, I’ll offer my take on these questions.

Note: I worked for the Department of Justice’s Computer Crime and Intellectual Property Section (CCIPS) from 2001 to 2005. The documents discussed below mention a memo written by somebody at CCIPS during the time I worked there, but absolutely everything I say below reflects only my personal thoughts and impressions about the documents released to the public today.

Two years ago, Kevin Poulsen broke the news that the FBI had successfully deployed spyware to help catch a student sending death threats to his high school. The FBI calls the tool a CIPAV for “computer and internet protocol address verifier.”

We learned today that Kevin filed a Freedom of Information Act request (along with EFF and CNet News) asking for other information about CIPAVs. The FBI has responded, Kevin made the 152 pages available, and I just spent the past half hour skimming them.

Here are some unorganized impressions:

• The 152 pages don’t take long to read, because they have been so heavily redacted. The vast majority of the pages have no substantive content at all.
• Page one may be the most interesting page. Someone at CCIPS, my old unit, cautions that “While the technique is of indisputable value in certain kinds of cases, we are seeing indications that it is being used needlessly by some agencies, unnecessarily raising difficult legal questions (and a risk of suppression) without any countervailing benefit,”
• On page 152, the FBI’s Cryptographic and Electronic Analysis Unit (CEAU) “advised Pittsburgh that they could assist with a wireless hack to obtain a file tree, but not the hard drive content.” This is fascinating on several levels. First, what wireless hack? The spyware techniques described in Poulsen’s reporting are deployed when a target is unlocatable, and the FBI tricks him or her into clicking a link. How does wireless enter the picture? Don’t you need to be physically proximate to your target to hack them wirelessly? Second, why could CEAU “assist . . . to obtain a file tree, but not the hard drive content.” That smells like a legal constraint, not a technical one. Maybe some lawyer was making distinctions based on probable cause?
• On page 86, the page summarizing the FBI’s Special Technologies and Applications Office (STAO) response to the FOIA request, STAO responds that they have included an “electronic copy of ‘Magic Quadrant for Information Access Technology'” on cd-rom. Is that referring to this Gartner publication, and if so, what does this have to do with the FOIA request? I’m hoping one of the uber geeks reading this blog can tie FBI spyware to this phrase.
• Pages 64-80 contain the affidavit written to justify the use of the CIPAV in the high school threat case. I had seen these back when Kevin first wrote about them, but if you haven’t seen them yet, you should read them.
• It definitely appears that the FBI is obtaining search warrants before installing CIPAVs. Although this is probably enough to justify grabbing IP addresses and information packed in a Windows registry, it probably is not enough alone to justify tracing IP addresses in real time. The FBI probably needs a pen register/trap and trace order in addition to the warrant to do that under 18 U.S.C. 3123. Although pen registers are mentioned a few times in these documents–particularly in the affidavit mentioned above–many of the documents simply say “warrant.” This is probably not of great consequence, because if FBI has probable cause to deploy one of these, they can almost certainly justify a pen register order, but why are they being so sloppy?

Two final notes: First, I twittered my present sense impressions while reading the documents, which was an interesting experiment for me, if not for those following me. If you want to follow me, visit my profile.

Second, if you see anything else in the documents that bear scrutiny, please leave them in the comments of this post.