With only 30 minutes to read and debate the proposed 9-page document, the Senate passed (97-0) an amendment to the 2002 appropriations budget entitled "Combating Terrorism Act of 2001." The Administration jumped on board yesterday with its own amplified version of the bill. Both pieces of legislation broadly expand law enforcement's wiretapping and surveillance capabilities, giving particularly far-ranging powers in cases of Internet surveillance.
Being touted by the authors as a "tool against terrorism" the Senate amendment neglects to define to whom that would apply, leading Sen. Leahy to say, "I guess some kid who is scaring you with his computer could be a terrorist and you could go through the kid's house, his parents' business or anything else under this language?." (He voted for the amendment anyway.) Bush's version does define terrorist activity, but includes in its definition of terrorist behavior crimes "relating to the protection of computers."
Despite its claims about securing the country against crimes such as 9/11, it also grants broad additional powers to "ongoing criminal investigations" not necessarily linked to terrorism.
Both bills dramatically expand the Pen Registers and Trap and Trace statutes. Originally conceived for telephones, the devices track incoming and outgoing phone numbers, but record no personal information or content. Although a court order is required for their use, prosecutors do not have to justify their requests and judges are required to approve them. The Bush bill amends current language in those statutes to include "dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted." This gives law enforcement agents full license to collect email address, URLs and IP addresses. All that is required to obtain such far-reaching powers is that a "law-enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation."
In its original form, these statutes could only detect a telephone number attached to a piece of equipment. Email addresses, URLs and IP addresses provide far more individualized information. By using the Pen Registers and Trap and Trace statutes on the Internet, law enforcement officials can bypass the tougher restrictions on content gathering allowed through wiretapping.
New surveillance powers are also being extended to cable companies who provide other types of communications services, such as cable modems or telephone service.
In addition, jurisdiction amendments provided in both bills allow law enforcement to apply to use these devices in multiple jurisdictions with only one application. With regard to the Internet, that allows for an application in, for example, Ohio, that would apply to Yahoo in Northern California. These amendments will also apply to search warrants being used to obtain unopened email.
Wiretapping laws are also being expanded. Under these bills, wiretapping, which in the past was legally limited to investigations surrounding mail fraud, wire fraud, and the interstate transportation of stolen property, is now being expanded to include any type of criminal investigation. Laws limiting disclosure of content derived from wiretapping are also being gutted These laws, which currently require a court order and only apply to criminal investigations, have been modified to include "disclosure of Title III-generated information to a non-law enforcement officer for such purposes as furthering an intelligence investigation."
Other restrictions that in the past required a Title III court order, including the seizure of voice mail messages, will now be possible with a simpler more accessible court order.
One of the inclusions in the Bush bill most vulnerable to abuse is an amendment allowing Federal Prosecutors "to use against American citizens information collected by a foreign government even if the collection would have violated the Fourth Amendment." They do add the language "such information may not be used if it was obtained with the knowing participation or at the direction of American law enforcement personnel." We should all feel safer.
It should be noted that the language in the Senate amendment was first proposed in April 2000 as S. 2092, leaving the attack on 9/11 a convenient excuse to dust it off and bring it out again under a different name.
Additional civil liberty concerns in the two bills include the ability to subpoena credit card numbers and financial information from communications providers, law-changing access to educational records, tax returns and business records, changes granting the President full control over sanctions (including medicinal and agricultural) against foreign states suspected of assisting or harboring terrorists and granting the President the ability to give financial assistance to any country he/she determines is supporting anti-terrorism laws without regard to current limitations on foreign assistance.
These bills have not yet been passed, but they're being pushed through rapidly with all likelihood of approval. The following link suggests actions that might be taken to at least curb some of these assaults on civil liberties.