From: [log in to unmask] [mailto:[log in to unmask]] Sent: Friday, October 26, 2001 10:38 PM
To: [log in to unmask]
Subject: Policy Post 7.11: Anti-Terrorism Legislation Gutting Privacy
Standards Becomes Law
CDT POLICY POST Volume 7, Number 11, October 26, 2001
A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL
LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) Anti-Terrorism Legislation Gutting Privacy Standards Becomes
Law
(2) Provisions Take Effect Immediately; Some "Sunset" in 2005
(3) New Law Requires Close Oversight; Other Civil Liberties Issues
Loom
______________________________________________________
___
(1) ANTI-TERRORISM LEGISLATION GUTTING PRIVACY
STANDARDS BECOMES LAW
President Bush on October 26 signed into law an anti-terrorism
package that dismantles many privacy protections for
communications and personal data. Many of the provisions are not
limited to terrorism investigations, but apply to all criminal or
intelligence investigations.
This bill has been called a compromise but the only thing
compromised is our civil liberties.
The bill:
* Allows government agents to collect undefined new information
about Web browsing and e-mail without meaningful judicial review;
* Allow Internet Service Providers, universities, network
administrators to authorize surveillance of "computer trespassers"
without a judicial order;
* Overrides existing state and federal privacy laws, allowing FBI to
compel disclosure of any kind of records, including sensitive
medical, educational and library borrowing records, upon the mere
claim that they are connected with an intelligence investigation;
* Allows law enforcement agencies to search homes and offices
without notifying the owner for days or weeks after, not only in
terrorism cases, but in all cases - the so-called "sneak and peek"
authority;
* Allows FBI to share with the CIA information collected in the name of
a grand jury, thereby giving the CIA the domestic subpoena powers it
was never supposed to have;
* Allows FBI to conduct wiretaps and secret searches in criminal
cases using the lower standards previously used only for the
purpose of collecting foreign intelligence.
The text of the legislation and analyses by CDT and others are online
at http://www.cdt.org/security/010911response.shtml
______________________________________________________
_______________
(2) PROVISIONS TAKE EFFECT IMMEDIATELY; SOME "SUNSET" IN
2005
As passed, some of the surveillance provisions expire, or "sunset," in
four years unless renewed by Congress. In four years, before any
extension of the provisions, CDT hopes that there will be a
Congressional review that will involve the deliberative balancing of
civil liberties and national security that was lacking from the current
debate.
CDT made it clear throughout the debate that terrorism was a
serious problem, that the U.S. counter-terrorism effort had failed on
September 11, and that changes to government security programs
were needed. What is doubly distressing about the new law is that it
was enacted without any examination of why existing authorities
failed to prevent the September 11 attacks.
It is our greatest concern that the changes will be worse than
ineffective - that, by cutting government agencies loose from
standards and judicial controls, they will result in the government
casting an even wider net, collecting more information on innocent
people, information that distracts the government from the task of
identifying those who are planning future attacks.
The sunset provision does not apply to the sharing of grand jury
information with the CIA, giving the CIA permanent benefit of the
grand jury powers. Nor does it apply to the provisions for sneak and
peek searches or the provision extending application of the pen
register and trap and trace law to the Internet.
The sunset also does not apply to ongoing investigations. Since
intelligence investigations often run for years, even decades, the
authorities will continue to be used even if they are not formally
extended in 2005.
______________________________________________________
_____________
(3) NEW LAW REQUIRES CLOSE OVERSIGHT; OTHER CIVIL
LIBERTIES ISSUES LOOM
Many threats to civil liberties loom in the short and mid-term. CDT is
planning a series of efforts to monitor implementation of the new law
as well as to counter additional efforts to erode privacy and other civil
liberties:
* CDT is calling upon Congress to exercise its oversight powers to
conduct a probing and sustained review of how the new law is
interpreted and applied. To that end, CDT will be working, through its
Digital Privacy and Security Working Group, to share information
among affected members of the telecommunications and Internet
industry and other civil liberties groups. The co-chairs of the
Congressional Internet Caucus have asked CDT to use DPSWG and
the Internet Caucus Advisory Committee to examine the new law and
future proposals.
* The FBI may be pushing for extension to the Internet of the
Communications Assistance for Law Enforcement Act, the 1994 law
requiring telecommunications carriers -- but not providers of
information services -- to build surveillance capabilities into their
networks. Implementing CALEA in the traditional and wireless
telephone networks has proven extremely contentious. Extending it
to the Internet could have even worse consequences for network
operations and security.
* CALEA for the Internet is only one shape that design mandates
may take. European governments have been particularly aggressive
in pushing data retention requirements -- rules requiring ISPs and
others to maintain logs of all communications for a period of months.
The issue of critical infrastructure protection also could serve as a
vehicle for government controls on technology.
* Calls have been made for a national ID card. In addition to the civil
liberties implications of hard copy identity cards, the concept poses
additional risks if extended to the Internet. Several bills have been
introduced or are being drafted calling for greater use of biometrics at
the borders and in other contexts.
* Encryption is not entirely off the agenda. While Senator Judd Gregg
pulled back from his announced intent to introduce mandatory key
recovery legislation, the issue may return.
* At the behest of the new cyber-security czar, NSC official Richard
Clarke, the Bush Administration issued a Request for Information
(RFI) to the U.S. telecommunications industry seeking information
and suggestions for the development of a special
telecommunications network, separate from the Internet. The
proposal's impact on e-government and citizen access to information
is unclear, and it raises questions about the lack of government
confidence in, and commitment to, the Internet.
____________________________________________________
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_7.11.shtml
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 7.11 Copyright 2001 Center for Democracy and
Technology
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