From Carl Shires
Tuesday, January 20, 1998 11:27 PM
Subject: First Amendment Protections for EMail ?
I have noticed that many agencies and persons have taken to using the
use" clause when reposting to a list. I have been the recipient of numerous
comments on how the proposed copyright rule changes would limit
dissemination of information by journalists, free speech advocates,
ZDNet News ( http://www.zdnet.com ) referenced the recently publicized
of the Navy CPO who is being discharged because on the contents of his AOL
User Profile. The referenced article is found at
http://annoy.com/cda/pointing_fingers/january98.html . It is a
thought-provoking commentary on the government's understanding of our Bill
I scanned the report and found the following article to be of particular
interest - it pertains to public use of a government publication that the
government had claimed was copyrighted by the Navy. Note the third sentence
and consider its' implications. ( in
cooperation with government policy, the article below has been heavily
"redacted" by me <grin> ).
..... the military eventually cited copyright over the Navy seal as a
justification for their refusal, threatening litigation in the event the
company did not comply.
To begin with, the poster had been in the public domain since 1972.
It is not copyrighted and copyright protection "is not available for
work of the United States Government," i.e., "a work prepared by an officer
or employee of the United States Government as part of that person's
As the United States Court of Appeals for the Ninth Circuit recently
the context of investigative reporting, "The journalist's privilege is
designed to protect investigative reporting, regardless of the medium used
to report the news to the public." The Supreme Court has stated emphatically
that "the press in its historic connotation comprehends every sort of
publication which affords a vehicle of information and opinion."
ApolloMedia released the CD-ROM uncensored, setting a de facto precedent
that afforded electronic publishers the same First Amendment protections
available to traditional media.
End of "Redacted" Copy
I am of the opinion that this disclosure of the true nature of government
copyrights provides the veterans community another weapon in the war on
bureacracy. This literally reaffirms the right to use their own words
against them. As I see it, the GWVM and Gulf-Chat comprise an electronic
community of researchers, investigators, and
reporters. If so, the use of government publications is covered.
Subject: Ducks, MycoToxins, and Hematuria
Date: Sunday, January 04, 1998 10:46 PM
Director, U.S. Fish and Wildlife Service
1849 C St., NW, MIB 3012
Washington, D.C. 20240
Tel. 202-208-4717, Fax 202-208-6965, email Director@mail.fws.gov
Region 4 (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, Puerto Rico, South Carolina, Tennessee, Virgin
1875 Century Boulevard, Rm 324
Atlanta, GA 30345
Tel. 404-679-4000, Fax 404-679-4006, email R4DIR@mail.fws.gov
Moldy Grain Killed Ducks on Refuge? Some questions .....
A veteran of the first official Gulf War, I have been diagnosed repeatedly
with hematuria, which is a medical term describing microscopic blood in the
urine. This condition became apparent after my return from the Gulf, and
was never discovered before, despite routine urinalysis conducted
periodically because of assignment to the DoD Personnel Reliability Program.
A kidney scan at a naval hospital revealed an enlarged kidney. My requests
for info are brushed off, the VA ignores it, and I am told "it's not
Since that time, I have been given to understand that our friend and
benefactor, the United States Government, authorized the sale of certain
biochemical items to Saddam Hussein, allegedly in violation of US law. See
the document at http://www.gslink.com/~arison/gws.html , and the legal
request for investigation at http://www.sirinet.net/~dwolf/gasior.htm . One
of those was a strain of mycotoxin, which has been identified as a potent
time-lapse bio-weapon. Some medical diagnoses suggest this may even be
As a result, I have become sensitive to reports of the occurrence of
malady. Details are sketchy, but it appears to be a common finding among
gulf war vets. Other reports appear to link mycotoxins with liver and
I'm not a medical specialist, but the following report caught my eye:
Parsons, Tenn (AP) Sunday January 4, 1998
Moldy Grain Killed Ducks on Refuge
--The recent deaths of 450 ducks at a Tennessee National Wildlife Resources
refuge may have been caused by moldy grain.
--The National Wildlife Health Center in Wisconsin did the analysis that
suggested kidney failure suffered by the ducks likely came from poisoning by
a mycotoxin, which is produced by a fungus.
--The tests showed the ducks didn't have any infectious diseases that could
harm other birds or humans. Pesticides were not involved.
--The birds, mostly mallards, were found dead last month in the Busseltown
section of the refuge. Up to 12,000 waterfowl live in that 7,000-acre unit.
--The otherwise good condition of the ducks indicated they probably died
within a day of exposure to the toxin, according to refuge manager John
1. If 450 out of several thousand ducks died from kidney failure as a
result of poisoning by a mycotoxin, how did this occur? Such a nice round
figure ...... Almost all one species ......
2. Has any investigation been initiated to determine if the source of this
poisoning is still a threat? If the moldy grain occurred naturally, then
the real possibility exists that it will reoccur and that many thousands
more will die. For that matter, has this occurred before?
3. Is it possible that this source of poisoning could be dangerous to human
life? Might it be water-soluble?
4. Dead within one day? Rather potent, wouldn't you say?
5. A fungus found in grain? Has the CDC taken steps to inspect grain
6. What actually killed the ducks? Kidney failure .... perhaps a type of
7. Events of this nature almost fit the definiton of a laboratory test.
Control groups and all.
8. Given today's political climate, and the government's insistence that we
are ripe for a terrorist biochemical attack, has anyone other than the
National Wildlife Health Center investigated this incident? DoD is
inoculating the military, and if I were a terrorist, I'd go for the soft
target. The goal is publicity, after all.
William C. Shires
"Chicken Little only has to be right once."
A review of TEMPEST Legal Issues
In the novel 1984, George Orwell foretold a future where individuals
expectation of privacy because the state monopolized the technology of
spying. The government watched the actions of its subjects from birth to
death. No one could protect himself because surveillance and counter-
surveillance technology was controlled by the government. This note explores
the legal status of a surveillance technology ruefully known as TEMPEST.
Using TEMPEST technology the information in any digital device may be
intercepted and reconstructed into useful intelligence without the operative
ever having to come near his target. The technology is especially useful in
the interception of information stored in digital computers or displayed on
The use of TEMPEST is not illegal under the laws of the United States,
England. Canada has specific laws criminalizing TEMPEST eavesdropping but
the laws do more to hinder surveillance countermeasures than to prevent
In the United States it is illegal for an individual to take effective
counter-measures against TEMPEST surveillance. This leads to the conundrum
that it is legal for individuals and the government to invade the privacy of
others but illegal for individuals to take steps to protect their privacy.
I. INTELLIGENCE GATHERING
Spying is divided by professionals into two main types: human intelligence
gathering (HUMINT) and electronic intelligence gathering (ELINT). As the
names imply, HUMINT relies on human operatives, and ELINT relies on
technological operatives. In the past HUMINT was the sole method for
collecting intelligence. The HUMINT operative would steal important papers,
observe troop and weapon movements, lure people into his confidences to
extract secrets, and stand under the eavesdrip of houses, eavesdropping on
As technology has progressed, tasks that once could only be performed
humans have been taken over by machines. So it has been with spying. Modern
satellite technology allows troop and weapons movements to be observed with
greater precision and from greater distances than a human spy could ever
hope to accomplish.
The theft of documents and eavesdropping on conversations may now be
performed electronically. This means greater safety for the human operative,
whose only involvement may be the placing of the initial ELINT devices. This
has led to the ascendancy of ELINT over HUMINT because the placement and
monitoring of ELINT devices may be performed by a technician who has no
training in the art of spying. The gathered intelligence may be processed by
an intelligence expert, perhaps thousands of miles away, with no need of
field experience. ELINT has a number of other advantages over HUMINT.
If a spy is caught his existence could embarrass his employing state
could be forced into giving up the identities of his compatriots or other
important information. By its very nature, a discovered ELINT device (bug)
cannot give up any information; and the ubiquitous nature of bugs provides
the principle state with the ability to plausibly deny ownership or
ELINT devices fall into two broad categories: trespassatory
non-trespassatory. Trespassatory bugs require some type of trespass in order
for them to function. A transmitter might require the physical invasion of
the target premises for placement, or a microphone might be surreptitiously
attached to the outside of a window.
A telephone transmitter can be placed anywhere on the phone line, including
at the central switch. The trespass comes either when it is physically
attached to the phone line, or if it is inductive, when placed in close
proximity to the phone line. Even microwave bugs require the placement of
the resonator cone within the target premises. Non-trespassatory ELINT
devices work by receiving electromagnetic radiation (EMR) as it radiates
through the ether, and do not require the placement of bugs. Methods include
intercepting information transmitted by satellite, microwave, and radio,
including mobile and cellular phone transmissions. This information was
purposely transmitted with the intent that some intended person or persons
would receive it.
Non-trespassatory ELINT also includes the interception of information
was never intended to be transmitted. All electronic devices emit
electromagnetic radiation. Some of the radiation, as with radio waves, is
intended to transmit information. Much of this radiation is not intended to
transmit information and is merely incidental to whatever work the target
device is performing. This information can be intercepted and reconstructed
into a coherent form.
>>>>>With current TEMPEST technology it is possible to reconstruct the
contents of computer video display terminal (VDU) screens from up to a
kilometer distant; reconstructing the contents of a computer's memory
For a discussion of the TEMPEST ELINT threat See e.g., Memory Bank,
BANKER 20 (Apr 1 1985); Emissions from Bank Computer Systems Make
Eavesdropping Easy, Expert Says, AMERICAN BANKER 1 (Mar 26 1985); CRT
spying: a threat to corporate security, PC WEEK (Mar 10 1987).
By selectively firing the gun as it scans across the face of the CRT,
pixels form characters on the CRT screen.
ELINT is not limited to governments. It is routinely used by individuals
their own purposes. Almost all forms of ELINT are available to the
individual with either the technological expertise or the money to hire
someone with the expertise. Governments have attempted to criminalize all
use of ELINT by their subjects--to protect the privacy of both the
government and the population.
II. UNITED STATES LAW
In the United States, Title III of the Omnibus Streets and Crimes Act
criminalizes trespassatory ELINT as the intentional interception of wire
communications. As originally passed, Title III did not prohibit
non-trespassatory ELINT, because courts found that non-wire communication
lacked any expectation of privacy. The Electronic Communications Privacy
Act of 1986 amended Title III to include non-wire communication.
ECPA was specifically designed to include electronic mail, inter-
communications, and cellular telephones. To accomplish this, the expectation
of privacy test was eliminated. As amended, Title III still outlaws the
electronic interception of communications. The word "communications"
indicates that someone is attempting to communicate something to someone; it
does not refer to the inadvertent transmission of information. The reception
and reconstruction of emanated transient electromagnetic pulses (ETEP),
however, is based on obtaining information that the target does not mean to
transmit. If the ETEP is not intended as communication, and is therefore not
transmitted in a form approaching current communications protocols, then it
can not be considered communications as contemplated by Congress when it
amended Title III. Reception, or interception, of emanated transient
electromagnetic pulses is not criminalized by Title III as amended.
III. ENGLISH LAW
In England the Interception of Communications Act 1985 criminalizes
tapping of communications sent over public telecommunications lines.
The interception of communications on a telecommunication line can take
place with a physical tap on the line, or the passive interception of
microwave or satellite links. These forms of passive interception differ
from TEMPEST ELINT because they are intercepting intended communication;
TEMPEST ELINT intercepts unintended communication.
Eavesdropping on the emanations of computers does not in any way comport
tapping a telecommunication line and therefore falls outside the scope of
IV. CANADIAN LAW
Canada has taken direct steps to limit eavesdropping on computers.The
Criminal Amendment Act of 1985 criminalized indirect access to a computer
service. The specific reference to an "electromagnetic device" clearly
shows the intent of the legislature to include the use of TEMPEST ELINT
equipment within the ambit of the legislation.
The limitation of obtaining "any computer service" does lead to some
The Canadian legislature has not made it clear whether "computer service"
refers to a computer service bureau or merely the services of a computer.
If the Canadians had meant access to any computer, why did they refer to any
"computer service". This is especially confusing considering the al-
encompassing language of (b) 'any function of a computer system'. Even if
the Canadian legislation criminalizes eavesdropping on all computers, it
does not solve the problem of protecting the privacy of information. The
purpose of criminal law is to control crime.
Merely making TEMPEST ELINT illegal will not control its use. First,
it is an inherently passive crime it is impossible to detect and hence
punish. Second, making this form of eavesdropping illegal without taking a
proactive stance in controlling compromising emanations gives the public a
false sense of security. Third, criminalizing the possession of a TEMPEST
ELINT device prevents public sector research into countermeasures. Finally,
the law will not prevent eavesdropping on private information held in
company computers unless disincentives are given for companies that do not
take sufficient precautions against eavesdropping and simple, more common,
TEMPEST ELINT is passive. The computer or terminal emanates compromising
radiation which is intercepted by the TEMPEST device and reconstructed into
useful information. Unlike conventional ELINT there is no need to physically
trespass or even come near the target. Eavesdropping can be performed from
a nearby office or even a van parked within a reasonable distance.
This means that there is no classic scene of the crime; and little or
chance of the criminal being discovered in the act. If the crime is
discovered it will be ancillary to some other investigation. For example, if
an individual is investigated for insider trading a search of his residence
may yield a TEMPEST ELINT device.
The device would explain how the defendant was obtaining insider
information; but it was the insider trading, not the device, that gave away
the crime. This is especially true for illegal TEMPEST ELINT performed by
Unless the perpetrators are caught in the act there is little evidence
their spying. A trespassatory bug can be detected and located; further, once
found it provides tangible evidence that a crime took place. A TEMPEST ELINT
device by its inherent passive nature leaves nothing to detect. Since the
government is less likely to commit an ancillary crime which might be
detected there is a very small chance that the spying will ever be
The only way to prevent eavesdropping is to encourage the use of
countermeasures TEMPEST Certified computers and terminals. In merely making
TEMPEST ELINT illegal the public is given the false impression of security;
they are lulled into believing the problem has been solved.
Making certain actions illegal does not prevent them from occurring.
especially true for a TEMPEST ELINT because it is undetectable.
Punishment is an empty threat if there is no chance of being detected;
without detection there can be no apprehension and conviction.
The only way to prevent some entity from eavesdropping on one's computer
computer terminal is for the equipment not to give off compromising
emanation; it must be TEMPEST Certified. The United States can solve this
problem by taking a proactive stance on compromising emanations. The
National Institute of Standards and Technology (NIST) is in charge of
setting forth standards of computer security for the private sector.
NIST is also charged with doing basic research to advance the art of
computer security. Currently NIST does not discuss TEMPEST with the private
sector. For privacy's sake, this policy must be changed to a proactive one.
The NIST should publicize the TEMPEST ELINT threat to computer security and
should set up a rating system for level of emanations produced by computer
equipment. Further, legislation should be enacted to require the labeling
of all computer equipment with its level of emanations and whether it is
TEMPEST Certified. Only if the public knows of the problem can it begin to
take steps to solve it.
Title III makes possession of a surveillance device a crime, unless
produced under contract to the government. This means that research into
surveillance and counter-surveillance equipment is monopolized by the
government and a few companies working under contract with NACSIM 5100A is
classified, as are all details of TEMPEST. To obtain access to it,
contractor must prove that there is demand within the government for the
specific type of equipment that intend to certify. Since the standard is
classified, the contractors can not sell the equipment to non-secure
governmental agencies or the public. This prevents reverse engineering of
the standard for its physical embodiment, the Certified equipment. By
preventing the private sector from owning this anti- eavesdropping
equipment, the NSA has effectively prevented the them from protecting the
information in their computers.
If TEMPEST eavesdropping is criminalized, then possession of TEMPEST
equipment will be criminal. Unfortunately,this does not solve the problem.
Simple TEMPEST ELINT equipment is easy to make. For just a few dollars many
older television sets can be modified to receive and reconstruct EMR. For
less than a hundred dollars a more sophisticated TEMPEST ELINT receiver can
be produced. The problem with criminalizing the possession of TEMPEST ELINT
equipment is not just that the law will have little effect on the use of
such equipment, but that it will have a negative effect on counter-measures
research. To successfully design counter-measures to a particular
surveillance technique it is vital to have a complete empirical
understanding of how that technique works. Without the right to legally
manufacture a surveillance device there is no possible way for a researcher
to have the knowledge to produce an effective counter-measures device. It is
axiomatic: without a surveillance device, it is impossible to test a
A number of companies produce devices to measure the emanations from
equipment. Some of these devices are specifically designed for bench marking
TEMPEST Certified equipment. This does not solve the problem. The question
arises: how much radiation at a particular frequency is compromising? The
current answer is to refer to NACSIM 5100A.
This document specifies the emanations levels suitable for Certification.
The document is only available to United States contractors having
sufficient security clearance and an ongoing contract to produce TEMPEST
Certified computers for the government. Further, the correct levels are
specified by the NSA and there is no assurance that, while these levels are
sufficient to prevent eavesdropping by unfriendly operatives, equipment
certified under NACSIM 5100A will have levels low enough to prevent
eavesdropping by the NSA itself.
The accessibility of supposedly correct emanations levels does not solve
problem of preventing TEMPEST eavesdropping. Access to NACSIM 5100A limits
the manufacturer to selling the equipment only to United States governmental
agencies with the need to process secret information. Without the right to
possess TEMPEST ELINT equipment manufacturers who wish to sell to the public
sector cannot determine what a safe level of emanations is. Further those
manufacturers with access to NACSIM 5100A should want to verify that the
levels set out in the document are, in fact, low enough to prevent
Without an actual eavesdropping device with which to test, no manufacturer
will be able to produce genuinely uncompromising equipment.
Even if the laws allow ownership of TEMPEST Certified equipment by the
public, and even if the public is informed of TEMPEST's threat to privacy,
individuals' private information will not necessarily by protected.
Individuals may choose to protect their own information on their own
computers. Companies may choose whether to protect their own private
information. But companies that hold the private information of individuals
must be forced to take steps to protect that information.
In England the Data Protection Act 1984 imposes sanctions against anyone
stores the personal information on a computer and fails to take reasonable
measures to prevent disclosure of that information. The act mandates that
personal data may not be stored in any computer unless the computer bureau
or data user has registered under the act. This provides for a central
registry and the tracking of which companies or persons maintain databases
of personal information. Data users and bureaus must demonstrate a need and
purpose behind their possession of personal data.
The act provides tort remedies to any person who is damaged by disclosure
the personal data. Reasonable care to prevent the disclosure is a defense.
English courts have not yet ruled what level of computer security measures
constitute reasonable care. Considering the magnitude of invasion possible
with TEMPEST ELINT it should be clear by now that failure to use TEMPEST
Certified equipment is prima facie unreasonable care.
The Remedies section of the act provides incentive for these entities
provide successful protection of person data from disclosure or illicit
access. Failure to protect the data will result in monetary loss. This may
be looked at from the economic efficiency viewpoint as allocating the cost
of disclosure the persons most able to bear those costs, and also most able
to prevent disclosure. Data users that store personal data would use TEMPEST
Certified equipment as part of their computer security plan, thwarting
would-be eavesdroppers. The Data Protection Act 1984 allocates risk to those
who can bear it best and provides an incentive for them to keep other
individuals' data private. This act should be adopted by the United States
as part of a full-spectrum plan to combat TEMPEST eavesdropping.
Data users are in the best position to prevent disclosure through proper
computer security. Only by making them liable for failures in security can
we begin to rein in TEMPEST ELINT.
Do not criminalize TEMPEST ELINT. Most crimes that TEMPEST ELINT would
such a insider trading, are already illegal; the current laws are adequate.
The National Institute of Standards and Technology should immediately begin
a program to educate the private sector about TEMPEST. Only if individuals
are aware of the threat can they take appropriate precautions or decide
whether any precautions are necessary.
Legislation should be enacted to require all electronic equipment to
prominently display its level of emanations and whether it is TEMPEST
Certified. If individuals are to choose to protect themselves they must be
able to make a informed decision regarding how much protection is enough.
TEMPEST Certified equipment should be available to the private sector.
current ban on selling to non- governmental agencies prevents individuals
who need to protect information from having the technology to do so.
Possession of TEMPEST ELINT equipment should not be made illegal.
inherently passive nature and simple design of TEMPEST ELINT equipment means
that making its possession illegal will not deter crime; the units can be
easily manufactured and are impossible to detect. Limiting their
availability serves only to monopolize the countermeasures research,
information, and equipment for the government; this prevents the testing,
design and manufacture of counter-measures by the private sector.
Legislation mirroring England's Data Protection Act 1984 should be enacted.
Preventing disclosure of personal data can only be accomplished by giving
those companies holding the data a reason to protect it. If data users are
held liable for their failure to take reasonable security precautions they
will begin to take reasonable security precautions, including the use of
TEMPEST Certified equipment.
2. TEMPEST is an acronym for Transient Electromagnetic Pulse Emanation
This standard sets forth the official views of the United States on the
amount of electromagnetic radiation that a device may emit without
compromising the information it is processing. TEMPEST is a defensive
standard; a device which conforms to this standard is referred to as TEMPEST
The United States government has refused to declassify the acronym for
devices used to intercept the electromagnetic information of non-TEMPEST
Certified devices. For this note, these devices and the technology behind
them will also be referred to as TEMPEST; in which case, TEMPEST stands for
Transient Electromagnetic Pulse Surveillance Technology.
The United States government refuses to release details regarding TEMPEST
and continues an organized effort to censor the dissemination of information
about it. For example the NSA succeeded in shutting down a Wang Laboratories
presentation on TEMPEST Certified equipment by classifying the contents of
the speech and threatening to prosecute the speaker with revealing
The pixels glow for only a very short time and must be routinely struck
the electron beam to stay lit. To maintain the light output of all the
pixels that are supposed to be lit, the electron beam traverses the entire
CRT screen sixty times a second. Every time the beam fires it causes a high
voltage EMR emission. This EMR can be used to reconstruct the contents of
the target CRT screen. TEMPEST ELINT equipment designed to reconstruct the
information synchronizes its CRT with the target CRT. First, it uses the EMR
to synchronize its electron gun with the electron gun in the target CRT.
Then, when the TEMPEST ELINT unit detects EMR indicating that the target CRT
fired on a pixel, the TEMPEST ELINT unit fires the electron gun of its CRT.
The ELINT CRT is in perfect synchronism with the target CRT; when the target
lights a pixel, a corresponding pixel on the TEMPEST ELINT CRT is lit. The
exact picture on the target CRT will appear on the TEMPEST ELINT CRT. Any
changes on the target screen will be instantly reflected in the TEMPEST
ELINT screen. TEMPEST Certified equipment gives off emissions levels that
are too faint to be readily detected. Certification levels are set out in
National Communications Security Information Memorandum 5100A
(NACSIM 5100A). "Emission levels are expressed in the time and frequency
domain, broadband or narrow band in terms of the frequency domain, and in
terms of conducted or radiated emissions." White, supra, note 9, 10.1.
For a thorough though purposely misleading discussion of TEMPEST ELINT
Van Eck, Electromagnetic Radiation from Video Display units: An
Eavesdropping Risk?, 4 Computers & Security 269 (1985).
3. This Note will not discuses how TEMPEST relates to the Warrant
Requirement under the United States Constitution. Nor will it discuss the
Constitutional exclusion of foreign nationals from the Warrant Requirement.
Protecting privacy under TEMPEST should be made freely available; TEMPEST
Certified equipment should be legally available; and organizations
possessing private information should be required by law to protect that
information through good computer security practices and the use of TEMPEST
4. HUMINT has been used by the United States since the Revolution.
necessity of procuring good intelligence is apparent & need not be further
urged -- All that remains for me to add is, that you keep the whole matter
as secret as possible. For upon Secrecy, Success depends in Most Enterprises
of the kind, and for want of it, they are generally defeated, however well
planned & promising a favorable issue." Letter of George Washington (Jul.
5. "... I wish you to take every possible pains in your powers, by sending
trusty persons to Staten Island in whom you can confide, to obtain
Intelligence of the Enemy's situation & numbers -- what kind of Troops they
are, and what Guards they have -- their strength & where posted." Id.
6. Eavesdrip is an Anglo-Saxon word, and refers to the wide overhanging
eaves used to prevent rain from falling close to a house's foundation. The
eavesdrip provided "a sheltered place where one could hide to listen
clandestinely to conversation within the house."
W. MORRIS & M. MORRIS, MORRIS DICTIONARY OF WORD AND PHRASE ORIGINS, (1977).
9. There are two types of emissions, conducted and radiated. Radiated
emissions are formed when components or cables act as antennas for
transmitting the EMR; when radiation is conducted along cables or other
connections but not radiated it is referred to as "conducted". Sources
include cables, the ground loop, printed circuit boards, internal wires, the
power supply to power line coupling, the cable to cable coupling, switching
transistors, and high-power amplifiers. WHITE & M. MARDIGUIAN, EMI CONTROL
METHODOLOGY AND PROCEDURES,
10.1 (1985). "[C]ables may act as an antenna to transmit the signals
directly or even both receive the signals and re-emit them further away from
the source equipment. It is possible that cables acting as an antenna in
such a manner could transmit the signals much more efficiently than the
equipment itself...A similar effect may occur with metal pipes such as those
for domestic water supplies. ... If an earthing [(grounding)] system is not
installed correctly such that there is a path in the circuit with a very
high resistance (for example where paint prevents conduction and is acting
as an insulator), then the whole earthing system could well act in a similar
fashion to an antenna. ... [For a VDU the strongest signals, or harmonics
thereof, are usually between 60-250 MHz approximately.
There have however been noticeable exception of extremely strong
in the television bands and at higher frequencies between 450-800 MHz.
Potts, Emission Security, 3 COMPUTER LAW AND SECURITY REPORT 27 (1988).
10. The TEMPEST ELINT operator can distinguish between different
the same room because of the different EMR characteristics of both homo and
heterogeneous units. "There is little comparison between EMR characteristics
from otherwise comparable equipment. Only if the VDU was made with exactly
the same components is there any similarity. If some of the components have
come from a different batch, have been updated in some way, and especially
if they are from a different manufacturer, then completely different results
are obtained. In this way a different mark or version of the same [VDU] will
emit different signals. Additionally because of the variation of
manufacturing standards between counties, two VDUs made by the same company
but sourced from different counties will have entirely different EMR signal
characteristics...From this it way be thought that there is such a jumble of
emissions around, that it would not be possible to isolate
those from any one particular source. Again, this is not the case.
Most received signals have memory or the contents of its mass storage
devices is more complicated and must be performed from a closer distance.
The reconstruction of information via EMR, a process for which the United
States government refuses to declassify either the exact technique or even
its name, is not limited to computers and digital devices but is applicable
to all devices that generate electromagnetic radiation. TEMPEST is
especially effective against VDUs because they produce a very high level of
EMR, a different line synchronization, due to design, reflection,
interference or variation of component tolerances. So that if for instance
there are three different signals on the same frequency ... by fine tuning
of the RF receiver, antenna manipulation and modification of line
synchronization, it is possible to lock onto each of the three signals
separately and so read the screen information. By similar techniques, it is
entirely possible to discriminate between individual items of equipment in
the same room." Potts, supra note 9.
11. TEMPEST is concerned with the transient electromagnetic pulses formed
digital equipment. All electronic equipment radiates EMR which may be
reconstructed. Digital equipment processes information as 1's and 0's--on's
or off's. Because of this, digital equipment gives off pulses of EMR. These
pulses are easier to reconstruct at a distance than the non-pulse EMR given
off by analog equipment. For a thorough discussion the radiation problems of
broadband digital information see e.g. military standard MIL-STD-461 REO2;
White supra note 9, 10.2.
12. See supra note 2.
13. Of special interest to ELINT collectors are EMR from computers,
communications centers and avionics. Schultz, Defeating Ivan with TEMPEST,
DEFENSE ELECTRONICS 64 (June 1983).
14. The picture on a CRT screen is built up of picture elements (pixels)
organized in lines across the screen. The pixels are made of material that
fluoresces when struck with energy. The energy is produced by a beam of
electrons fired from an electron gun in the back of the picture tube. The
electron beam scans the screen of the CRT in a regular repetitive manner.
When the voltage of the beam is high then the pixel it is focused upon emits
photons and appears as a dot on the screen.
15. Pub. L. No. 90-351, 82 Stat. 197. The Act criminalizes trespassatory
ELINT by individuals as well as governmental agents. cf. Katz v. United
States, 389 U.S. 347 (1967) (Fourth Amendment prohibits surveillance by
government not individuals.)
16. 18 U.S.C. 2511(1)(a).
17. United States v. Hall, 488 F.2d 193 (9th Cir. 1973) (found
legislative history indicating Congress intended the act to include
radio-telephone conversations). Further, Title III only criminalized the
interception of "aural" communications which excluded all forms of computer
18. Willamette Subscription Television v. Cawood, 580 F.Supp 1164 (D.
1984) (non-wire communications lacks any expectation of privacy).
19. Pub. L. No. 99-508, 100 Stat. 1848 (codified at 18 U.S.C. 2510-710)
20. 18 U.S.C. 2511(1)(a) criminalizes the interception of "any wire,
electronic communication" without regard to an expectation of privacy.
21. Interception of Communications Act 1985, Long Title, An Act to make
provision for and in connection with the interception of communications sent
by post or by means of public telecommunications systems and to amend
section 45 of the Telecommunications Act 1984.
22. Interception of Communications Act 1985 1, Prohibition on Interception:
(1) Subject to the following provisions of this section, a person who
intentionally intercepts a communication in the course of its transmission
by post or by means of a public telecommunications system shall be guilty of
an offence and liable-- (a) on summary conviction, to a fine not exceeding
the statutory maximum; (b) on conviction on indictment, to imprisonment for
a term not exceeding two years or to a fine or to both. ***
23. Tapping (aka trespassatory eavesdropping) is patently in violation
the statute. "The offense created by section 1 of the Interception of
Communications Act 1985 covers those forms of eavesdropping on computer
communications which involve "tapping" the wires along which messages are
being passed. One problem which may arise, however, is the question of
whether the communication in question was intercepted in the course of its
transmission by means of a public telecommunications system. It is
technically possible to intercept a communication at several stages in its
transmission, and it may be a question of fact to decide the stage at which
it enters the "public" realm. THE LAW COMMISSION,WORKING PAPER NO. 110:
COMPUTER MISUSE, 3.30 (1988).
24. "There are also forms of eavesdropping which the Act does not cover.
For example. eavesdropping on a V.D.U. [referred to in this text as a CRT]
screen by monitoring the radiation field which surrounds it in order to
display whatever appears on the legitimate user's screen on the
eavesdropper's screen. This activity would not seem to constitute any
criminal offence..." THE LAW COMMISSION, WORKING PAPER NO. 110: COMPUTER
MISUSE, 3.31 (1988).
25. 301.2(1) of the Canadian criminal code states that anyone who:
without color of right, (a) obtains, directly or indirectly, any computer
service, (b) by means of an electromagnetic ... or other device, intercepts
or causes to be intercepted, either directly or indirectly, any function of
a computer system ... [is guilty of an indictable offence].
26. UNITED STATES SENTENCING COMM'N, FEDERAL SENTENCING GUIDELINES MANUAL
(1988) (Principles Governing the Redrafting of the Preliminary Guidelines
"g." (at an unknown page))
27. There has been great debate over what exactly is a computer
There are several schools of thought. The more articulate school, and the
one to which the author adheres holds that the category computer crime
should be limited to crimes directed against computers; for example, a
terrorist destroying a computer with explosives would fall into this
category. Crimes such as putting ghost employees on a payroll computer and
collecting their pay are merely age-old accounting frauds; today the fraud
involves a computer because the records are kept on a computer. The computer
is merely ancillary to the crime. This has been mislabeled computer crime
and should merely be referred to as a fraud perpetrated with the aid of a
Finally, there are information crimes. These are crimes related to the
purloining or alteration of information. These crimes are more common and
more profitable due to the computer's ability to hold and access great
amounts of information. TEMPEST ELINT can best be categorized as a
28. Compare, for example, the Watergate breakin in which the burglars
discovered when they returned to move a poorly placed spread spectrum bug.
29. TEMPEST Certified refers to the equipment having passed a testing
emanations regime specified in NACSIM 5100A. This classified document sets
forth the emanations levels that the NSA believes digital equipment can give
off without compromising the information it is processing. TEMPEST Certified
equipment is theoretically secure against TEMPEST eavesdropping.
30. Previously the Bureau of Standards. The NIST is a division of the
31. In this case computer equipment would include all peripheral computer
equipment. There is no use is using a TEMPEST Certified computer if the
printer or the modem are not Certified.
32. The NSA has tried to limit the availability of TEMPEST information
prevent the spread of the devices. For a discussion of the First Amendment
and prior restraint See, e.g. The United States of America v. Progressive,
Inc. 467 F.Supp 990 (1979, WD Wis.)(magazine intended to publish plans for
nuclear weapon; prior restraint injunction issued), reh. den. United States
v. Progressive Inc. 486 F.Supp 5 (1979, WD Wis.), motion den Morland v.
Sprecher 443 US 709 (1979)(mandamus), motion denied United States v.
Progressive, Inc. 5 Media L R (1979, 7th Cir.), dismd. without op. U.S. v.
Progressive, Inc 610 F.2d 819 (1979, 7th Cir.); New York Times, Co. v.
United States, 403 U.S. 713 (1971)(per curium)(Pentagon Papers case: setting
forth prior restraint standard which government was unable to meet); T.
EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970); Balance Between
Scientific Freedom and NAtional Security, 23 JURIMETRICS J. 1 (1982)(current
laws and regulations limiting scientific and technical expression exceed the
legitimate needs of national security); Hon. M. Feldman, Why the First
Amendment is not Incompatible with National Security, HERITAGE FOUNDATION
REPORTS (Jan. 14, 1987). Compare Bork, Neutral Principles and Some First
Amendment Problems, 47 IND. L. J. 1 (First Amendment applies only to
political speech); G. Lewy, Can Democracy Keep Secrets, 26 POLICY REVIEW 17
(1983)(endorsing draconian secrecy laws mirroring the English system).
33. For example, the NSA has just recently allowed the Drug Enforcement
Agency (DEA) to purchase TEMPEST Certified computer equipment. The DEA
wanted secure computer equipment because wealthy drug lords had were using
TEMPEST eavesdropping equipment.
34. An Act to regulate the use of automatically processed information
relating to individuals and the provision of services in respect of such
information. -Data Protection Act 1984, Long Title.
35. "Personal data" means data consisting of information which relates
living individual who can be identified from that
36. "Data user" means a person who holds data, and a persons "Holds"
if -- (a) the data form part of a collection of data processed or intended
to be processed by or on behalf of that person as mentioned in subsection
(2) above; [subsection (2) defines "data"] and (b) that person (either alone
or jointly or in common with other persons) controls the contents and use of
the data comprised in the collection; and (c) the data are in the form in
which they have been or are intended to be processed as mentioned in
paragraph (a) above or (though not for the time being in that form) in a
form into which they have been converted after being so processed and with a
view to being further so processed on a subsequent occasion. - Data
Protection Act 1(5).
37. Data Protection Act 1984, 4,5.
38. An individual who is the subject of personal data held by a data
and who suffers damage by reason of (1)(c) ... the disclosure of the data,
or access having been obtained to the data without such authority as
aforesaid shall be entitled to compensation from the data user... for any
distress which the individual has suffered by reason of the ... disclosure
or access. - Data Protection Act 1984 23.
39. ... it shall be a defense to prove that ... the data user ... had
such care as in all the circumstances was reasonably required to prevent
the... disclosure or access in question. Data Protection Act 1984 23(3)