Two More OLC Opinions Published:

I spent the weekend in idyllic Orkney Springs, VA. After I left on Friday, the Office of Legal Counsel released two more opinions, both concerning “Einstein 2.0,” which sounds a little like a kid movie sequel (“Beethoven’s 2d,” anyone?), but actually is a cybersecurity initiative used to protect civilian unclassified networks in the Executive Branch against malicious network activity.

The first opinion is a 35 pager signed during the waning days of the Bush Administration, which concludes that Einstein 2.0 complies with the Fourth Amendment, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, FISA, the Stored Communications Act, and the pen register and trap and trace provisions of the U.S. Code, provided that log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by agencies using the system.

The second opinion, which is much shorter (just a hair over 5 pages), was signed August 14, 2009. It states that “[w]e have reviewed that opinion and agree that the operation of the EINSTEIN 2.0 program complies with” those provisions, which I guess isn’t to be assumed nowadays, and also goes on to conclude that operation of Einstein does not run afoul of state wiretapping or communications privacy laws. Most of the opinion discusses the reasonable expectations of privacy of system users.

Publication of the August 14 opinion is the best indication yet that the current OLC is making it a priority to quickly publish those opinions it intends to publish.

The opinions received some press coverage. The most in-depth article was in the Washington Post.

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