CDT POLICY POST Volume 7, Number 10, October 9, 2001

A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY

CONTENTS:

(1) Surveillance Bills Move Through House and Senate

(2) Anti-Terrorism Legislation Would Threaten Privacy on the Internet

(3) Fundamental Changes Proposed in Intelligence Authorities

(4) Secret Searches of Homes and Offices Sought

(5) Bush Administration Rejects Compromise

(1) SURVEILLANCE BILLS MOVE THROUGH HOUSE AND SENATE

Legislation to expand government surveillance and access to stored data may be considered by the House and Senate in the next several days. The House Judiciary Committee marked up its bill last week, on October 3, while on Friday, October 5, Senate Judiciary Committee Chairman Patrick Leahy introduced a bipartisan bill that may go straight to the full Senate.

Following the attacks of September 11, it is clear that US anti-terrorism efforts need to be improved. The seriousness of the issue demands that whatever is done be effective and focused without unnecessarily infringing civil liberties . Unfortunately, there has been little time for deliberation. The Bush Administration came forward soon after the attacks with a long list of proposals, some of which involve quite fundamental changes in the surveillance laws, particularly as they relate to intelligence investigations in the US. Most of the Bush changes are not limited to terrorism cases, but concern all crimes and all intelligence investigations.

CDT has been tracking these issues and offering its recommendations for balancing national security and civil liberties. We have established a special page where we are posting the latest draft bills, analyses, testimony and other materials, updated on a daily basis: http://www.cdt.org/security/010911response.shtml

In this Policy Post, we summarize the main issues of concern to privacy, online and off, in the pending legislation.

(2) ANTI-TERRORISM LEGISLATION WOULD THREATEN PRIVACY ON THE INTERNET

Two provisions in the House and Senate bills directly and specifically affect the Internet.

• Pen Registers/ Trap and Trace Devices for the Internet (House 101, Senate 216) - Allows government to collect, in real-time, unspecified, undefined information about Web browsing and e-mail without meaningful judicial review. This provision takes an already ambiguous statute and makes it more ambiguous, while giving the government a basis to claim access to more Internet transactional information.
   
  • Expands "rubber-stamp" authority of the pen register statute (designed to collect telephone dialing information) to "dialing, routing, addressing and signaling information" regarding e-mail, Web browsing and other Internet use.
     
  • Excludes "content," but no one knows what that means on the Internet, where packets combine content and non-content, and signaling data reveal much more than telephone numbers do. No definition is given to the terms "routing, addressing and signaling."
     
  • Will be cited by FBI in imposing Carnivore on ISPs and others.
     
  • At the least, it needs to be made clear that URL information after the host name (everything after cnn.com or amazon.com) is content that cannot be intercepted by pen register.
     
• Interception of computer trespasser communications (House 105, Senate 217) - Allows ISPs, universities, network administrators to authorize surveillance on others without judicial order.
   
  • Says 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 says its okay. "Without authorization" is not defined.
     
  • Under the House version, relatively minor violations - like downloading a copyrighted mp3 file - would allow an ISP to authorize the government to tap all of that person's communications. With no judicial permission, oversight, or supervision.
     
  • No time limit - the extrajudicial wiretapping could go on for ever.
     
  • Senate bill states "computer trespasser" does not include any person with a "preexisting contractual agreement" with the computer operator, thus exempting ISP users. Senate language is better and should be expanded to deal with workplaces, universities, libraries, or other network operators who do not necessarily have a contractual relationship with their users. Provision also needs to be given a time limitation of 48 hours, the limit on other emergency wiretap authorities.

(3) FUNDAMENTAL CHANGES PROPOSED IN INTELLIGENCE AUTHORITIES

Since the 1970s, our government privacy laws have been founded on a distinction between law enforcement and intelligence. The FBI, acting as an intelligence agency has broad powers, exercised largely in secret, to wiretap, conduct secret physical searches, and compel disclosure of financial, credit, travel and other records. Standards have been built up to govern use of those authorities, but they are looser than the standards governing access in criminal cases. Part of the justification for these lower standards was that they would be used in connection with foreign policy, national defense and diplomacy, not for the purpose of gathering evidence in criminal cases.

Now, the Administration is asking Congress to lower the standards for intelligence investigations even further and, at the same time, to allow these authorities to be used for the purpose of gathering evidence in criminal cases, thus circumventing the stricter procedures. The changes include:

• Eliminating FISA's "primary purpose" test (House 153, Senate 218) -- Criminal wiretaps could be conducted under the lower standards for foreign intelligence, without showing probable cause of a crime -- an end-run around the relatively more stringent requirements for wiretaps in Title III.
   
• Eliminates the requirement that FISA procedures only be used when the government's purpose is the gathering of foreign intelligence -- allows wiretaps and secret searches in criminal investigations under the weaker FISA standards thereby circumventing the relatively stricter requirements for criminal investigations.
   
• The latest language in the bills - which adds the word "significant" - is characterized as a compromise but would in fact have the same effect as the administration proposal. It would authorize the use of FISA procedures in all criminal investigations involving international terrorism or espionage, because they will always have "a significant' foreign intelligence gathering purpose. Destroys the distinction between intelligence and law enforcement agencies, which made the lower standards of FISA constitutional in the first place.
   
• Roving taps in FISA cases (House 152, Senate 206) - Allows FBI to go from phone to phone, computer to computer, without assurance that device is used by suspected terrorist. Gives FBI multi-point or "roving" tap authority in FISA cases. But does not limit tap top phone or computer while suspect is using it.
   
  • Could allow government to tap all the computers in a library if suspect is using one of them. If a FISA target is using payphones, the government could tap all payphones in the neighborhood, all day long.
     
  • House Judiciary Committee Members agreed to work to include the so-called ascertainment guideline, which is in the roving tap provision applicable in criminal cases, specifying that the government can tap a particular payphone or computer when it ascertains that the target is using it.
     
• FISA Business Records Provision (House 156, Senate 215) -- Overrides existing privacy laws for sensitive categories of records, including medical, educational and library. Would give intelligence agency access to "any tangible thing" - including sensitive medical, financial, or library records - from any person, with minimal judicial review, if "sought for" an intelligence investigation. A simple change - "Unless existing federal or state law provides otherwise as to the criteria for obtaining an order to produce records," - would avoid preemption of existing privacy laws.
   
• Sharing of Intelligence Information (House 103, 154, 353; Senate 203) - Allows intelligence agencies to receive - mainly with no judicial controls - information collected domestically in criminal cases.

(4) SECRET SEARCHES OF HOMES AND OFFICES SOUGHT

In a provision that would codify a highly contested area of the law, the Senate bill would allow law enforcement agencies to search homes and offices without notifying the owner right away. (Senate 213, not in the House bill)

• Not limited to terrorism cases - emerged two years ago in an anti-methamphetamine bill. Applies to citizens. See August 20, 1999 Policy Post http://www.cdt.org/publications/pp_5.19.html Allows seizure of things and of wire and electronic communications (thereby seeming to supercede Title III.)
   
• Government could enter your house, apartment or office with a search warrant when you are away, search through your property and take photographs, and in some cases seize physical property and electronic communications, and not tell you until later.

The Senate made changes to the broad Administration proposal, but secret searches remain a fundamental departure for traditional police practice and strict adherence to the Fourth Amendment. This provision should be dropped.

(5) BUSH ADMINISTRATION REJECTS COMPROMISE

A lot of Members of the House and public interest groups worked very hard to make improvements (some would say marginal improvements) in the anti-terrorism bill in the House. Chairman F. James Sensenbrenner worked in good faith with ranking Democrat John Conyers, Jr. to follow normal legislative procedure, including a mark-up.

Most notable among the compromises made, the House bill's surveillance provisions "sunset" in two years.

As CDT and other groups from across the political spectrum have pushed for a balanced bill that addresses civil liberties concerns, the Department of Justice has made it clear that it wants all the new authorities made permanent and that it is unwilling to accept meaningful judicial controls or otherwise compromise. In its latest move, the Administration is actually working to preclude the House from voting on the anti-terrorism bill as reported from the House Judiciary Committee.

Over the Columbus Day weekend, the Administration began pushing for a delay in consideration of the House bill, with the goal of getting the House to accept provisions of the Senate bill and otherwise return to the Administration's initial proposals. This approach - delaying until it gets everything its way - belies the Administration's claim that it needs these new authorities to respond to an emergency.

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_7.10.shtml.

Excerpts may be re-posted with prior permission of ari@cdt.org

Policy Post 7.10 Copyright 2001 Center for Democracy and Technology