SCN: [Fwd: FC: Peter Swire op-ed on anti-terrorism bill: Power may be abused]

[sharma at blarg.net]

-------- Original Message --------
Subject: FC: Peter Swire op-ed on anti-terrorism bill: Power may
be abused
Date: Wed, 24 Oct 2001 01:57:35 -0400
From: Declan McCullagh <declan at well.com>
Reply-To: declan at well.com
To: politech at politechbot.com


*********

Date: Tue, 23 Oct 2001 17:05:39 -0500
To: declan at well.com
From: Peter Swire <pswire at law.gwu.edu>
Subject: Op Ed on Anti-terrorist law

Declan:

         This op ed piece can be released to the public domain on
Wednesday 
morning.  It highlights some key concerns with the anti-terrorism
law that 
the President will likely sign shortly.

         Peter

         If surveillance expands, safeguard civil liberties Peter
P. Swire 
- For the Atlanta Journal-Constitution Sunday, October 21, 2001
         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.


This article available at 
http://www.accessatlanta.com/ajc/epaper/editions/sunday/issue_b32dd46d81b5509a1081.html

Previous Swire Brookings article on the wiretap laws available 
at 
http://www.brookings.edu/views/articles/fellows/2001_swire.htm :: 
"Administration Wiretap Proposal Hits the Right Issues But Goes
Too Far", 
October 3, 2001.




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