Terrorist Bills' effects on online privacy and separation of powers

Testimony of Jerry Berman

Executive Director

Center for Democracy & Technology

before the

Senate Judiciary Committee

Subcommittee on Constitution, Federalism, and Property Rights

on

Protecting Constitutional Freedoms in the Face of Terrorism

October 3, 2001

Summary

Thank you for the opportunity to testify at this hearing on the momentous

question of improving our nation's defenses against terrorism in a manner

consistent with our fundamental Constitutional liberties.

CDT joins the nation in grief and anger over the devastating loss of life

resulting from the September 11 terrorist hijackings and attacks against the

World Trade Center and the Pentagon. Like many, our relatively small staff

had friends and acquaintances killed in those heinous acts. We strongly

support the efforts of our government to hold accountable those who direct

and support such atrocities.

We know from history, however, that measures hastily undertaken in times of

peril - particularly measures that weaken controls on government exercise of

coercive or intrusive powers - often infringe civil liberties without

enhancing security. For that reason, we harbor serious reservations about

several bills currently under discussion in this Subcommittee and elsewhere

on Capitol Hill. In particular, we are deeply concerned about the

Administration's proposed "Anti-Terrorism Act of 2001" (ATA). A

recently-circulated alternate package, the Sensenbrenner-Conyers "Provide

Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT)

Act," removes or changes a very few concerns in ATA, but retains most of the

provisions damaging to civil liberties. The concerns we raise in this

testimony, unless otherwise noted, apply equally to both bills.

We are deeply concerned about the impact of these bills on constitutional

liberties, most particularly in two areas.

First, the ATA and PATRIOT Act tear down the "wall" between the government's

authority to conduct counter-intelligence surveillance against foreign

powers and terrorist groups, and its authority to conduct criminal

investigations of Americans. In the post-Watergate era, Congress carefully

constrained the government from inappropriately mixing its foreign

intelligence and law enforcement capabilities, since such mixing would

greatly infringe Americans' constitutional freedoms. The current bills

eviscerate that division. Both would change the "primary purpose" standard

that permits exceptional surveillance but only when counter-intelligence is

"the" primary purpose of an investigation. Instead, the bills would make

these extraordinary powers open to all investigations in which

counter-intelligence is "a" (or, in the PATRIOT Act, "a significant")

purpose (Sec. 153). As a result, they would permit law enforcement to use

constitutionally suspect surveillance techniquessecret searches, bugs, and

wiretappingÜagainst Americans in criminal investigations without the

protections that Congress originally intended. Besides damaging the civil

liberties of law-abiding Americans who may have their communications

subjected to secret interception, the bill raises the possibility that

criminal prosecutions pursued in this way could be thrown out on

constitutional grounds.

At the same time, the ATA and PATRIOT Act allow data collected in a criminal

investigation to be shared widely, without judicial review and regardless of

whether those activities serve a law enforcement or counter-intelligence

purpose (Sec. 154). This would include the content of Title III wiretaps and

evidence presented to grand juries, both of which are traditionally

protected under law. Such a revision to the law would permit such troubling

activities as the development by the CIA or other intelligence agencies of

dossiers for Americans not suspected of any criminal activity.

Second, the ATA and PATRIOT Act broadly expand the government's ability to

conduct electronic surveillance and diminish the rights of Americans online.

The most problematic sections in this regard are:

* SECTION 101. PEN REGISTER AND TRAP AND TRACE AUTHORITY. Both ATA and

PATRIOT would extend to the Internet the current, extremely permissive

authority to collect telephone numbers dialed to or from a specific

telephone line. But as drafted for Internet, this proposal would

provide the government with much more detailed information about a

monitored user. It would include not only e-mail addresses, but also

URLs detailing activities such as search queries, books browsed, and

online purchases. Those monitored do not need to be under

investigation, and judges must issue these orders upon a showing of

mere relevance, not probable cause.

* SECTION 106. INTERCEPTION OF COMPUTER TRESPASSER COMMUNICATIONS. Both

ATA and the PATRIOT Act (Sec. 105) say 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 agrees. This provision eviscerates current protections for

electronic communications. Relatively minor violations of an ISP's

terms of service - such as using foul language or downloading a

copyrighted MP3 file - would allow an ISP to turn over all of that

person's communications without the government obtaining a judicial

warrant.

A range of other provisions further expand the government's surveillance

authority, including:

* SECTION 152. MULTI-POINT WIRETAP AUTHORITY. Authorizes FISA "roving"

wiretaps, but more broadly than under current criminal law and without

necessary guidelines or restrictions on this authority. Thus, if a

surveillance target is suspected of using a library computer, then all

communications from that library computer might be monitored. We

believe a better solution would be to limit this authority's extent to

those devices under the control of a surveillance target.

* SECTION 155. PEN REGISTER/TRAP AND TRACE CONTROLS. Eliminates the only

meaningful statutory control (judicial supervision, and a showing that

the target is connected to a foreign power or terrorist organization)

that exists on use of pen registers and trap and trace devices in

intelligence cases.

* SECTION 154. FOREIGN INTELLIGENCE INFORMATION SHARING. Permits

distribution of information gathered in criminal investigations -

including grand jury information and Title III wiretaps - to a huge

number of government employees not involved in law enforcement, without

judicial supervision..

* SECTION 156. BUSINESS RECORDS. Allows access to any business records

based only on the demand of an FBI agent for intelligence or terrorism

investigations with no judicial review or oversight.

* SECTION 157. MISCELLANEOUS NATIONAL-SECURITY AUTHORITIES. Amends

several key privacy laws, allowing much greater access to banking,

credit, and other consumer records in counter-intelligence

investigations, with no judicial review or any showing that such

records are relevant to the investigation of a foreign or terrorist

agent.

Mr. Chairman, we commend you and the Subcommittee for holding this hearing,

and taking the time to consider the legislative proposals put forth by the

Administration. Only through the hearing process can you and the American

public understand what is being proposed, how it would change current law,

and whether the changes are responsive to any deficiencies that the

September 11 attack may have revealed. Just as President Bush and his

military advisers are taking their time in planning their response, to

ensure that they hit the terrorist targets with a minimum of collateral

damage, so it is incumbent upon this Congress to avoid collateral damage to

the Constitution.

Context: Law Enforcement and Intelligence Gathering Authorities

As you well know, the current legal structure of the intelligence community

was established after Watergate both to improve intelligence and to ensure

that the rights of Americans were not eroded by the vast and sometimes vague

intelligence authorities that had previously existed. The legal and

oversight system for intelligence sprang not just from a concern about civil

liberties, but also from a concern about improving the efficacy of

intelligence gathering.

A number of the provisions of the Attorney General's bill would change

provisions of the Foreign Intelligence Surveillance Act of 1978 (FISA). As

the Subcommittee is well aware, FISA gave the FBI and the CIA extremely

broad authority to investigate terrorism and to conduct counter-intelligence

not only against foreign nationals here in the U.S., but also against

American citizens suspected of involvement with terrorist groups. Unlike

criminal law, where high standards of government conduct vigorously protect

constitutional rights, FISA makes a special exemption for the intelligence

community, permitting it to place wiretaps, install bugs, and conduct secret

searches without showing probable cause of criminal conduct, giving notice,

or even turning the results of the surveillance over to a court for later

review. Through FISA, our intelligence community has authority to

investigate a sweeping array of individuals and organizations, and through

such investigations to defend against acts of terrorism.

Congress designed the FISA statute to be effective, but it recognized that

such broad investigative powers, if misapplied, could threaten Americans'

constitutional rights. Congress therefore demanded that the powers bestowed

by FISA be strongly contained, and that a clear separation - a wall - be

erected between the unique and broad standards for surveillance described in

FISA, and those used in the rest of the criminal justice system. In

particular, Congress wanted to ensure that surveillance under FISA would not

be initiated for the purpose of criminal investigations, since such would

circumvent the careful protections built into the criminal system. Rules

were installed that carefully constrained FISA's usage, and the "wall"

precluded information collected through FISA investigations from being used

in criminal ones except in cases where the surveillance was initiated and

maintained for broader foreign intelligence purposes.

Comments on Administration Proposals

The ATA and the PATRIOT Act would expand already-broad federal government

authorities to conduct electronic surveillance and otherwise collect

information not only on foreign nationals but on American citizens, while

sidestepping constitutional protections. As described above, the bills do

not adequately control that expansion, and as a result they damage civil

liberties in two ways.

Both bills would change the "primary purpose" standard that permits FISA's

exceptional standards to be used only when counter-intelligence is "the"

primary purpose of an investigation. Instead, the ATA and PATRIOT Act

propose to open FISA to all investigations in which counter-intelligence is

"a" (or, in the PATRIOT Act, "a significant") purpose (Sec. 153). Such a

change clearly threatens the "wall" Congress erected between the

government's normal police authority and its special counter-intelligence

powers, with the end result of substantially reducing American's

constitutional protections before the government. The ATA and PATRIOT Act

would thus permit law enforcement to use constitutionally suspect

surveillance techniquesÜ secret searches, bugs, and wiretappingÜagainst

Americans in criminal investigations without the protections that Congress

originally intended. Besides damaging the civil liberties of law-abiding

Americans who may have their communications subjected to secret

interception, the bill raises the possibility that criminal prosecutions

pursued using FISA could be thrown out on constitutional grounds.

At the same time, the ATA and PATRIOT Act allow data collected in a criminal

investigation to be shared widely and used for any number of activities,

without judicial review and regardless of whether those activities serve a

law enforcement or counter-intelligence purpose (Sec. 154). Information that

could be shared would include the content of Title III wiretaps and evidence

presented to grand juries, both of which are traditionally protected under

law. Certainly, the government's law enforcement and intelligence

communities should be encouraged to work together, but the terms of their

cooperation should be carefully defined, with, standards that serve the dual

purposes of national security and civil liberties.

Such a lack of controls on the government's ability to share and distribute

information about American citizens - no matter the purpose for which it was

collected - leads to a situation in which entire communities (such as the

American Islamic community) might have a surveillance net cast over them by

the government's counter-intelligence arm. It leads to the possibility that

American citizens disagreeing with the policies of a sitting Administration

would have their activities monitored and logged, and dossiers created for

them at the CIA or FBI. And it creates the risk that, in our desire for a

nation as secure in the future as it has been in the past, we might

sacrifice the elements of freedom that made this country as strong as it is.

Even as the ATA and PATRIOT Act alter the division between FISA and the

government's normal police powers, they also include numerous, complex

provisions extending the surveillance laws, particularly regarding the

Internet, even as both bills raise many questions about how such provisions

will be implemented. Many of the changes are not related to security

concerns raised by the September 11 terrorist attacks. Many are not limited

to terrorism cases, but relate to criminal investigations. Some have been

proposed by the Justice Department before, and some have been rejected by

Congressional committees before, based on their breadth and their impact on

liberty.

The proposed language includes sweeping revisions such as a modification of

the pen register standard that would allow the government to intercept the

content of some Internet communications without any fourth amendment

protection (Sec. 101) and a new authority for Internet Service Providers

(ISPs) to authorize government surveillance of their users' Internet

connections (Sec. 106 in ATA, Sec. 105 in PATRIOT Act). Other changes

include the so-called "roving wiretap" authority (Sec. 152), which would

permit the government to intercept, for example, all Internet communications

coming from a public Internet terminal (no matter who is using it) if a

suspected terrorist is seen using that terminal.

As technology develops, so too should the government's ability to carry out

its law enforcement and counter-terrorism functions. But injudicious changes

such as those proposed in the ATA and the PATRIOT Act threaten basic

freedoms guaranteed by the constitution. We therefore urge this Subcommittee

and the law enforcement and intelligence communities to take a more limited,

surgical approach to expanding government powers, both online and off.

A more detailed analysis of the Administration's bill follows below. Once

again, we appreciate and commend this Subcommittee's efforts to gather

public input and to hold this hearing today. We hope the Subcommittee will

move forward with those provisions of its bill and the Administration's bill

that are non-controversial and responsive to the tragic attacks of September

11, but will defer on the other more complex and divisive provisions that we

have identified. We look forward to working with the Subcommittee and staff

to craft an appropriate response at this perilous moment in our country's

history, and to avoid a rush to judgment on legislation that could

ultimately imperil both freedom and security.

The Center for Democracy and Technology is a non-profit, public interest

organization dedicated to promoting civil liberties and democratic values

for the new digital communications media. Our core goals include enhancing

privacy protections and preserving the open architecture of the Internet.

Among other activities, CDT coordinates the Digital Privacy and Security

Working Group (DPSWG), a forum for more than 50 computer, communications,

and public interest organizations, companies and associations working on

information privacy and security issues.

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