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
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