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Monday, Nov. 05, 2001 at 9:59 AM
Will the FBI be able to keep its brand new set of eavesdropping and surveillance powers?
Terror Law Foes Mull Strategies
By Declan McCullagh
2:00 a.m. Nov. 3, 2001 PST
President Bush recently signed a massive anti-terrorism bill, granting investigators unprecedented powers that have been
applauded by police groups but condemned by civil libertarians.
Because parts of the spy law are so invasive that they arguably violate Americans' privacy rights, opponents of the
so-called USA Patriot Act have begun to weigh how to mount a legal challenge.
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"These things are certainly being discussed and assessed," says David Sobel, general counsel for the Electronic Privacy
Information Center in Washington, D.C.
But, says Sobel, there's only one problem: An immediate lawsuit asking a federal judge to declare the anti-terrorism act
unconstitutional faces an uphill battle.
Any legal challenge would focus on the Constitution's Fourth Amendment, which explicitly forbids "unreasonable searches
and seizures" -- while implicitly permitting reasonable ones. Since the anti-terrorism law lets police obtain court approval to
sneak into someone's house or office, rummage through the contents and leave without telling the owner, opponents could
argue such a search was "unreasonable."
A court challenge would proceed along one of two paths: A lawsuit filed in the near future that says secret searches and
enhanced wiretapping powers are blatantly unconstitutional and should be struck down, or a case that eventually arises out
of a prosecution.
The first approach, called a facial challenge and successfully used by opponents of the 1996 Communications Decency Act,
is said to be far less likely to succeed.
"At least in terms of the surveillance provisions, there are not any obvious opportunities for facial challenges," says Jim
Dempsey, an attorney at the Center for Democracy and Technology. "Outside of the First Amendment (area), facial
challenges are usually difficult. I think that case-by-case challenges are possible."
Dempsey says the second approach -- spurred by a criminal prosecution involving, say, secret searches or the use of a
shadowy court that meets in the bowels of the Justice Department -- is more promising.
In June, the U.S. Supreme Court ruled 5-4 that police could not snoop on Americans' homes using thermal imaging
devices without obtaining a warrant first. The high court could take a similar approach in a prosecution involving the
anti-terrorism law and decide that certain police methods authorized by the law are unconstitutional.
Cliff Fishman, a law professor at Catholic University, says he supports the law and predicts that there is little "likelihood
that this Supreme Court would overthrow any provisions. The court has made it clear that the government has the right to
One especially controversial part of the anti-terrorism law is how it expands a secret court -- created in 1978 by the Foreign
Intelligence Surveillance Act -- and permits the court's search warrants and eavesdropping orders to apply in domestic
investigations. Since the investigations are intended for intelligence purposes, not law enforcement, the FISA judges don't
have to follow the Fourth Amendment.
Fishman says that "if the government uses that change in language as a way to use FISA as end-run around (the Fourth
Amendment), then there is a distinct possibility the court is going to shoot it down."
Antonio Perez, also a law professor at Catholic University, agrees. Perez says a possible approach for a constitutional
challenge is "in the sections on collection of information, if it's collected under the lax intelligence protections and it's used
for criminal prosecution."
"We don't expect there will be any immediate litigation here," says Barry Steinhardt, the associate director of the American
Civil Liberties Union. "There will be litigation down the road. The real law will be made on appeal in criminal prosecutions."
One section of the new law that could be challenged states that the Justice Department can order an Internet provider to
install the FBI's Carnivore surveillance system and record addresses of Web pages visited and e-mail correspondents --
without going to a judge. Previously, there were stiffer legal restrictions on Carnivore and other Internet surveillance
Also, any Internet provider or telephone company must turn over customer information, including phone numbers called --
no court order required -- if the FBI claims that the "records sought are relevant to an authorized investigation to protect
against international terrorism." The company contacted may not "disclose to any person" that the FBI is doing an
Legal experts say one problem with a constitutional attack on the law is that so much of the eavesdropping is taking place
covertly -- meaning police may collect vast amounts of information but never use it in a prosecution. The FBI already has
indicated how tight-lipped it plans to be: It had refused to release information on over 1,000 people detained after the
Sep. 11 terrorist attacks.
"Typically, Fourth Amendment issues are raised in the context of a specific criminal prosecution," says EPIC's Sobel. "But
it's not clear that there will be such prosecutions here because so many powers are tied to intelligence gathering that's not
tied to criminal investigations."
Previously, when the FBI wiretapped an American citizen, the target was supposed to find out about it -- either by being
prosecuted or through a notice the police were legally obliged to send after the surveillance was complete. But under FISA
investigations, the right of notice does not apply.
"I trust the professionals in law enforcement," says Fishman, the Catholic University professor. "We have to hope that the
FBI is conscientious, and that's all we can ask."
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