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New Anti-Terrorism Law Poses Old Risks

by Peter Swire

The Uniting and Strengthening America Act of 2001, expected to be signed by President Bush this week, will give our government important new surveillance powers to fight terrorism.

Unfortunately, the USA Act does not make sure that these expanded powers won’t be abused. While it sharply expands how government can wiretap e-mails and Web surfing, it provides no remedy if officials exceed that authority. It also breaks down the wall that once separated foreign intelligence-gathering from domestic law enforcement, without creating new safeguards to replace those it removes.

On the wiretap side, the act permits law enforcement to camp at a phone company or Internet service provider and monitor a wide range of communications as they flow through the network. The “computer trespasser” provision, as it’s called, is intended to let phone companies and Internet providers bring police into their systems to look for unauthorized usage.

The idea has a core of good sense. System owners should be able to ask for help from the police when they expect a hacker attack. The question is how well the new law has been written. The Bush administration proposed the “computer trespasser” language just four days after the attack on the World Trade Center. There was never a single hearing in Congress on the idea.

Law enforcement abuses feared

One worry with this new law is that a company might “invite” the police to stay based on undue pressure from law enforcement. Another worry is that the police might intentionally exceed their authority. Under the long-standing rule covering telephone wiretaps, law enforcement is forbidden from using wrongfully obtained evidence in court. But that rule does not apply to information illegally obtained by police from wiretaps of e-mail and Web surfing.

Last year, the Clinton administration proposed that intercepted e-mails be treated the same as intercepted phone calls. As the House Judiciary Committee debated the wiretap proposal this month, it agreed that illegal e-mail wiretaps should not be used in court. It made sure that law enforcement would have to report on how often it was using the expanded powers. The House also created a $10,000 fine against the government for illegal Internet wiretaps. None of these desirable safeguards made it into the final USA Act.

In a second big change, the USA Act integrates foreign intelligence-gathering and law enforcement in ways forbidden since the 1970s. Congress separated the two functions after discovering numerous abuses of the power, from clandestine spying here in the United States by the CIA to criminal prosecutions based on evidence obtained overseas by means that would be illegal under the Constitution.

Security forces work together

To stop those abuses, Congress enacted strict rules preventing the CIA and other intelligence agencies operating overseas from sharing information with domestic law-enforcement agencies. Those rules are outdated in the face of the current threat. In the recent words of one senior FBI official, “The walls are all down now.”

In the wake of Sept. 11, new integrated command centers house officials from the CIA, FBI, National Security Agency, Defense Intelligence Agency, Customs Service, and so on.

The USA Act furthers this trend. It specifically provides that secret grand jury testimony, historically used only for law enforcement within the United States, can now be shared with intelligence agencies without getting permission from a judge, or even noting the fact that the information has been shared.

Similarly, the act allows information gathered from secret wiretaps on foreign agents to go directly to law enforcement officials. Defendants no longer have to be informed that the wiretap occurred, as previous law required. From now on, it will be easier for the government to conduct “foreign intelligence” wiretaps and use information from those wiretaps without ever revealing their existence.

Again, the logic for these changes is clear. Terrorists clearly operate both in the United States and overseas. Communications on the Internet constantly bounce between different countries. If we leave walls in place between the CIA and the FBI, we prevent our agencies from seeing dangerous patterns and taking needed action.

In summary, there are strong reasons to support new surveillance powers. But we should stay keenly aware that we are repealing safeguards created because of previous abuse. The Framers adopted the Fourth Amendment to make sure that all government searches were reasonable and approved by an independent judge. When Congress revisits the wiretap rules soon, as it inevitably will, it must create new safeguards to match the new surveillance powers our government gained this week.

Peter P. Swire is a visiting professor of law at George Washington University. During the Clinton administration, he chaired a White House Working Group on how to update wiretap laws for the Internet age.

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