washingtonpost.com: Bush Signs Into Law New Enforcement Era
Bush Signs Into Law New Enforcement Era
U.S. Gets Broad Electronic Powers
By Jonathan Krim and Robert O'Harrow Jr.
Washington Post Staff Writers
Saturday, October 27, 2001; Page A06
President Bush yesterday handed law enforcement broad new
investigative and surveillance powers, signing legislation aimed at helping
authorities track and disrupt the operations of suspected terrorists in the
"Today, we take an essential step in defeating terrorism
while protecting the constitutional rights of all Americans," Bush said at
a White House ceremony. "This government will enforce this law with all the
urgency of a nation at war."
The new law gives the government a freer
hand to conduct searches, detain or deport suspects, eavesdrop on Internet
communication, monitor financial transactions and obtain electronic records
of individuals. At the same time, it reduces the need for subpoenas, court
orders or other legal checks to enable law enforcement to move more quickly.
Convinced that the steps were necessary, Congress overwhelmingly approved
the legislation this week.
The government is moving aggressively on
a number of technology fronts to more efficiently collect and evaluate information
about people and their movements as they seek to combat terrorism.
The Defense Department, for instance, announced this week that it is seeking
proposals from companies on an array of new surveillance products such as
portable polygraph machines and systems that can see through walls at night.
And with Attorney General John D. Ashcroft promising an anti-terrorist campaign
reminiscent of the war on organized crime in the days of Al Capone, the FBI
will increasingly demand personal information held by banks, Internet service
providers and credit bureaus.
In many cases, those businesses will
not be allowed to tell clients that they have turned over medical, financial
or other personal records to investigators.
With new law enforcement
powers to monitor computer use, sometimes without a warrant, Internet users
will have to decide whether they want to rely more on ways of encrypting
their e-mail or otherwise disguising their identities online.
new abilities to share data between federal agencies, including the CIA,
law enforcement will be able to build more robust, centralized stores of
intercepted information. The law provides no guidelines for how long such
data can be kept, or what happens to it after a particular investigation
"It was inevitable that we would have much more data
collection, more data sharing, more data storing" as a result of technology,
said Jeffery Eisenach, president of the Progress and Freedom Foundation,
a conservative think tank. "And thinking through the privacy implications
of what was happening was fine on a 20-year schedule." Now, he said, "this
much broader set of privacy concerns is suddenly upon us."
of struggle on Capitol Hill, civil libertarians lost the argument that the
government will gain too many new police powers to potentially examine the
activities of innocent individuals and erode personal privacy.
Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), who helped craft the
legislation, said the current crisis requires aggressive action. Although
he expressed concern about giving authorities too much power, Leahy said
he was satisfied with provisions limiting the duration of some of the new
surveillance rules to four years, subject to congressional review. Leahy
said he expects frequent detailed reports about the expanded use of surveillance.
"They won't get the sunset extended if they're not doing the right thing," he said.
The sunset provision does not apply to all provisions in the bill, and it
wasn't enough to satisfy Sen. Russell D. Feingold (D-Wis.), who cast the
lone vote in the Senate against the legislation on Thursday, a day after
the House approved it by 356 to 66. "There have been periods in our nation's
history when civil liberties have taken a back seat to what appeared at the
time to be the legitimate exigencies of war," he said on the Senate floor.
"Our national consciousness still bears the stain and the scars of those
events: The Alien and Sedition acts, the suspension of habeas corpus during
the Civil War, the internment of Japanese Americans, German Americans and
Italian Americans during World War II, the blacklisting of supposed communist
sympathizers during the McCarthy era, and the surveillance and harassment
of antiwar protesters, including Dr. Martin Luther King Jr."
Band, a lawyer specializing in technology issues, said the most troubling
elements of the new law are likely to play out in more subtle ways.
For example, part of the law enabling expanded monitoring or interception
of online communications defines an eligible suspect not as a terrorist,
but as a "trespasser." But the definition of trespasser is murky, Band said,
creating "a huge civil liberties hole."
A trespasser can be anyone
without authorized access to a machine or network. As a result, Band said,
the FBI could compel a company, or Internet service provider, to allow it
to monitor communications for someone who violated terms of service agreements,
including being late on payments.
Or a company could give permission
for the FBI to monitor an employee's computer use if the person used a company
computer to shop online, in violation of company policy.
of the law say these objections are an overreaction and misinterpret the
intent and consequence of the legislation. "We've had a lot of these recommendations
for years," said Sen. Jon Kyl, (R-Ariz.). "They are not radical or new."
Band said that businesses, Internet service providers and large employers
are going to have to start thinking: "They have to come up with a policy
on how to deal with these requests. Who makes the decision in the company?"
Many companies might also need to alter their privacy policies, Band said,
so that their users know in advance how the company would react in such situations.
Otherwise, he said, they could be accused of unfair trade practice for violating
A spokesman for America Online, the online division
of AOL Time Warner Inc., declined to comment on the new law. The company's
about your account only to comply with valid legal process such as a search
warrant, subpoena or court order, or in special cases such as a physical
threat to you or others."
The new law's requirements that phone companies
and Internet providers turn over customer information and activity to the
government if the case involves suspected terrorism are not subject to the
Banks, especially those that cater to high net-worth
clients whose privacy is sacrosanct, will be subject to new scrutiny under
tougher money-laundering provisions in the law.
And the ability for
the FBI to get customer information from credit bureaus has been eased, although
full credit reports still require a court order.
Leahy said he doubted
the legislation would force businesses to rework privacy policies. Businesses
already have to comply with government subpoenas, he said.
"Like everything else, your records can be subpoenaed," Leahy said.
Some in the privacy community believe that expanded surveillance powers will
have an unintended consequence for the government: increased demand for easy-to-use
encryption products that will make monitoring more difficult.
communication networks generally are going to be perceived as more vulnerable"
to snooping, said David Sobel, general counsel for the Electronic Privacy
Products that integrate encryption capability into e-mail or word processing would be popular, Sobel said.
© 2001 The Washington Post Company