Date: Wed, 24 Oct 2001 12:22:55 -0400
To: Matthew Gaylor <freematt@coil.com>
From: Matthew Gaylor <freematt@coil.com>
Subject: Peter Swire's Op Ed on Anti-terrorist law
Content-Type: text/plain; charset="us-ascii" ; format="flowed"

Date: Tue, 23 Oct 2001 17:05:39 -0500
To: declan@well.com
From: Peter Swire <pswire@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_b32dd46 
d81b5509a1081.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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