From: [log in to unmask] [mailto:[log in to unmask]] Sent: Tuesday, October 09, 2001 8:25 PM
To: [log in to unmask]
Subject: Policy Post 7.10: Surveillance Bills Move Through House and
Senate
CDT POLICY POST Volume 7, Number 10, October 9, 2001
A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) Surveillance Bills Move Through House and Senate
(2) Anti-Terrorism Legislation Would Threaten Privacy on the Internet
(3) Fundamental Changes Proposed in Intelligence Authorities
(4) Secret Searches of Homes and Offices Sought
(5) Bush Administration Rejects Compromise
_________________________________________________________
(1) SURVEILLANCE BILLS MOVE THROUGH HOUSE AND SENATE
Legislation to expand government surveillance and access to stored data may
be considered by the House and Senate in the next several days. The House
Judiciary Committee marked up its bill last week, on October 3, while on
Friday, October 5, Senate Judiciary Committee Chairman Patrick Leahy
introduced a bipartisan bill that may go straight to the full Senate.
Following the attacks of September 11, it is clear that US anti-terrorism
efforts need to be improved. The seriousness of the issue demands that
whatever is done be effective and focused without unnecessarily infringing
civil liberties . Unfortunately, there has been little time for
deliberation. The Bush Administration came forward soon after the attacks
with a long list of proposals, some of which involve quite fundamental
changes in the surveillance laws, particularly as they relate to
intelligence investigations in the US. Most of the Bush changes are not
limited to terrorism cases, but concern all crimes and all intelligence
investigations.
CDT has been tracking these issues and offering its recommendations for
balancing national security and civil liberties. We have established a
special page where we are posting the latest draft bills, analyses,
testimony and other materials, updated on a daily basis:
http://www.cdt.org/security/010911response.shtml
In this Policy Post, we summarize the main issues of concern to privacy,
online and off, in the pending legislation.
_________________________________________________________
(2) ANTI-TERRORISM LEGISLATION WOULD THREATEN PRIVACY ON THE INTERNET
Two provisions in the House and Senate bills directly and specifically
affect the Internet.
* Pen Registers/Trap and Trace Devices for the Internet (House 101,
Senate 216) - Allows government to collect, in real-time, unspecified,
undefined information about Web browsing and e-mail without meaningful
judicial review. This provision takes an already ambiguous statute
and makes it more ambiguous, while giving the government a basis to
claim access to more Internet transactional information.
* Expands "rubber-stamp" authority of the pen register statute
(designed to collect telephone dialing information) to "dialing,
routing, addressing and signaling information" regarding e-mail,
Web browsing and other Internet use.
* Excludes "content," but no one knows what that means on the
Internet, where packets combine content and non-content, and
signaling data reveal much more than telephone numbers do.
No definition is given to the terms "routing, addressing and
signaling."
* Will be cited by FBI in imposing Carnivore on ISPs and others.
* At the least, it needs to be made clear that URL information
after the host name (everything after cnn.com or amazon.com) is
content that cannot be intercepted by pen register.
* Interception of computer trespasser communications (House 105,
Senate 217) - Allows ISPs, universities, network administrators to
authorize surveillance on others without judicial order.
* Says that anyone accessing a computer "without authorization"
has no privacy rights and can be tapped by the government without
a court order, if the operator of the computer system says its
okay. "Without authorization" is not defined.
* Under the House version, relatively minor violations - like
downloading a copyrighted mp3 file - would allow an ISP to
authorize the government to tap all of that person's communications.
With no judicial permission, oversight, or supervision.
* No time limit - the extrajudicial wiretapping could go on for
ever.
* Senate bill states "computer trespasser" does not include any
personwith a "preexisting contractual agreement" with the computer
operator, thus exempting ISP users. Senate language is better and
should be expanded to deal with workplaces, universities, libraries,
or other network operators who do not necessarily have a contractual
relationship with their users. Provision also needs to be given a
time limitation of 48 hours, the limit on other emergency wiretap
authorities.
____________________________________________________________
(3) FUNDAMENTAL CHANGES PROPOSED IN INTELLIGENCE AUTHORITIES
Since the 1970s, our government privacy laws have been founded on a
distinction between law enforcement and intelligence. The FBI, acting as
an intelligence agency has broad powers, exercised largely in secret, to
wiretap, conduct secret physical searches, and compel disclosure of
financial, credit, travel and other records. Standards have been built up
to govern use of those authorities, but they are looser than the standards
governing access in criminal cases. Part of the justification for these
lower standards was that they would be used in connection with foreign
policy, national defense and diplomacy, not for the purpose of gathering
evidence in criminal cases
Now, the Administration is asking Congress to lower the standards for
intelligence investigations even further and, at the same time, to allow
these authorities to be used for the purpose of gathering evidence in
criminal cases, thus circumventing the stricter procedures. The changes
include:
* Eliminating FISA's "primary purpose" test (House 153, Senate 218) --
Criminal wiretaps could be conducted under the lower standards for
foreign intelligence, without showing probable cause of a crime -- an
end-run around the relatively more stringent requirements for wiretaps
in Title III.
* Eliminates the requirement that FISA procedures only be used when
the government's purpose is the gathering of foreign intelligence
-- allows wiretaps and secret searches in criminal investigations
under the weaker FISA standards thereby circumventing the relatively
stricter requirements for criminal investigations.
* The latest language in the bills - which adds the word
"significant"
- is characterized as a compromise but would in fact have the same
effect as the administration proposal. It would authorize the use
of FISA procedures in all criminal investigations involving
international terrorism or espionage, because they will always have
"a significant' foreign intelligence gathering purpose. Destroys
the distinction between intelligence and law enforcement agencies,
which made the lower standards of FISA constitutional in the first
place.
* Roving taps in FISA cases (House 152, Senate 206) - Allows FBI to go
from phone to phone, computer to computer, without assurance that device
is used by suspected terrorist. Gives FBI multi-point or "roving" tap
authority in FISA cases. But does not limit tap top phone or computer
while suspect is using it.
* Could allow government to tap all the computers in a library if
suspect is using one of them. If a FISA target is using payphones,
the government could tap all payphones in the neighborhood, all
day long.
* House Judiciary Committee Members agreed to work to include the
so-called ascertainment guideline, which is in the roving tap
provision applicable in criminal cases, specifying that the
government can tap a particular payphone or computer when it
ascertains that the target is using it.
* FISA Business Records Provision (House 156, Senate 215) -- Overrides
existing privacy laws for sensitive categories of records, including
medical, educational and library. Would give intelligence agency
access to "any tangible thing" - including sensitive medical,
financial, or library records - from any person, with minimal judicial
review, if "sought for" an intelligence investigation. A simple
change - "Unless existing federal or state law provides otherwise as to
the criteria for obtaining an order to produce records," - would avoid
preemption of existing privacy laws.
* Sharing of Intelligence Information (House 103, 154, 353; Senate 203)
- Allows intelligence agencies to receive - mainly with no judicial
controls - information collected domestically in criminal cases.
_______________________________________________________
(4) SECRET SEARCHES OF HOMES AND OFFICES SOUGHT
In a provision that would codify a highly contested area of the law,
the Senate bill would allow law enforcement agencies to search homes and
offices without notifying the owner right away. (Senate 213, not in the
House bill)
* Not limited to terrorism cases - emerged two years ago in an
anti-methamphetamine bill. Applies to citizens. See August 20, 1999
Policy Post http://www.cdt.org/publications/pp_5.19.html Allows seizure
of things and of wire and electronic communications (thereby seeming to
supercede Title III.)
* Government could enter your house, apartment or office with a search
warrant when you are away, search through your property and take
photographs, and in some cases seize physical property and electronic
communications, and not tell you until later.
The Senate made changes to the broad Administration proposal, but secret
searches remain a fundamental departure for traditional police practice
and strict adherence to the Fourth Amendment. This provision should be
dropped.
____________________________________________________
(5) BUSH ADMINISTRATION REJECTS COMPROMISE
A lot of Members of the House and public interest groups worked very hard
to make improvements (some would say marginal improvements) in the anti-
terrorism bill in the House. Chairman F. James Sensenbrenner worked in
good faith with ranking Democrat John Conyers, Jr. to follow normal
legislative procedure, including a mark-up.
Most notable among the compromises made, the House bill's surveillance
provisions "sunset" in two years.
As CDT and other groups from across the political spectrum have pushed
for a balanced bill that addresses civil liberties concerns, the
Department of Justice has made it clear that it wants all the new
authorities made permanent and that it is unwilling to accept meaningful
judicial controls or otherwise compromise. In its latest move, the
Administration is actually working to preclude the House from voting on
the anti-terrorism bill as reported from the House Judiciary Committee.
Over the Columbus Day weekend, the Administration began pushing for a
delay in consideration of the House bill, with the goal of getting the
House to accept provisions of the Senate bill and otherwise return to
the Administration's initial proposals. This approach - delaying until
it gets everything its way - belies the Administration's claim that it
needs these new authorities to respond to an emergency.
____________________________________________________
Detailed information about online civil liberties issues may be found at
http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/pp_7.10.shtml
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Policy Post 7.10 Copyright 2001 Center for Democracy and Technology
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