Date: Mon, 1 Oct 2001 11:39:03 -0400
To: Matthew Gaylor <freematt@coil.com>
From: Matthew Gaylor <freematt@coil.com>
Subject: EPIC's Analysis of Provisions of the Proposed Anti-Terrorism Act
 of 2001
Content-Type: text/plain; charset="us-ascii" ; format="flowed"

David L. Sobel, General Counsel       *   +1 202 483 1140
(tel) Electronic Privacy Information Center *   +1 202 483 1248
(fax) 1718 Connecticut Ave., N.W. Suite 200 *   sobel@epic.org
Washington, DC 20009   USA     *   <http://www.epic.org>


<http://www.epic.org/privacy/terrorism/ata_analysis.html>

This document is available in PDF

September 24, 2001 

Analysis of Provisions of the Proposed Anti-Terrorism Act of 2001
Affecting the Privacy of Communications and Personal Information

In response to the horrendous attacks that occurred on September 11, 
Attorney General Ashcroft has proposed the Anti-Terrorism Act of 2001 
(ATA), a far-reaching legislative package intended to strengthen the 
nation's defense against terrorism. Several of ATA's provisions would 
vastly expand the authority of law enforcement and intelligence 
agencies to monitor private communications and access personal 
information. Those provisions address issues that are complex and 
implicate fundamental constitutional protections of individual 
liberty, including the appropriate procedures for interception of 
information transmitted over the Internet and other rapidly evolving 
technologies. Despite the complexity of these matters, the Attorney 
General has urged Congress to quickly approve the proposal, which 
became available for analysis only within the last several days.

As Congress considers this important piece of legislation, it should 
be guided by several critical factors:

*Law enforcement and intelligence agencies already possess 
broad authority to conduct investigations of suspected terrorist 
activity. In fact, Congress approved new surveillance powers to 
combat terrorism in late 1998. Describing those provisions after 
enactment, an FBI national security official said that "any one of 
these extremely valuable tools could be the keystone of a successful 
operation" against sophisticated foreign terrorists.


*Any expansion of existing authorities should be based upon a 
clear and convincing demonstration of need. Congress should assess 
the likely effectiveness of any proposed new powers in combating the 
threats posed by terrorist activity.


*Any new authorities deemed necessary should be narrowly drawn 
to protect the privacy and constitutional rights of the millions of 
law-abiding citizens who use the Internet and other communications 
media on a daily basis.


*The longstanding distinction between domestic law enforcement 
and foreign intelligence collection should be preserved to the 
greatest extent possible consistent with the need to detect and 
prevent terrorist activity.


*Expanded investigative powers should be limited to the 
investigation of terrorist activity and should not be made generally 
applicable to all criminal investigations.



Analysis of Specific Provisions

Pen Registers, the Internet and Carnivore

Currently, the statute authorizing the use of "pen register" and 
"trap and trace" devices governs real time interception of "numbers 
dialed or otherwise transmitted on the telephone line to which such 
device is attached." Although the use of such devices requires a 
court order, it does not require a showing of probable cause. There 
is, in effect, no judicial discretion, as the court must authorize 
monitoring upon the mere certification by a government attorney that 
the "information likely to be obtained by such installation and use 
is relevant to an ongoing criminal investigation." Therefore, these 
procedures lack almost all of the significant privacy protections 
found in Title III, the statute governing the interception of the 
actual "content" of a communication (e.g., a phone conversation or 
the text of an e-mail message).

The proposed ATA (Section 101) would significantly expand law 
enforcement authority to use trap and trace and pen register devices. 
Current law relating to the use of such devices was written to apply 
to the telephone industry, therefore the language of the statute 
refers only to the collection of "numbers dialed" on a "telephone 
line" and the "originating number" of a telephone call. The proposed 
legislation would redefine a pen register as "a device or process 
which records or decodes dialing, routing, addressing, or signaling 
information transmitted by an instrument or facility from which a 
wire or electronic communication is transmitted." A trap and trace 
device would be defined as "a device or process which captures the 
incoming electronic or other impulses which identify the originating 
number or other dialing, routing, addressing, and signaling 
information relevant to identifying the source or a wire or 
electronic communication."

By expanding the nature of the information that can be captured, the 
amendment clearly expands pen register capacities to the Internet, 
covering electronic mail, Web surfing, and all other forms of 
electronic communications. The full impact of this expansion of 
coverage is difficult to assess, as the proposed statutory 
definitions are vague with respect to the types of information that 
can be captured and are subject to broad interpretations. The 
proposed ATA does not take into account the unique nature of such 
information, which contains data far more revealing than phone 
numbers, such as URLs generated while using the Web which often 
contain a great deal of information that cannot in any way be 
analogized to a telephone number. Although the FBI has compared 
telephone calls to Internet communications to justify invocation of 
the existing pen register statute to authorize the use of its 
controversial Carnivore system, whether current law in fact grants 
such authority remains an open and debatable question. The proposed 
amendment would codify the FBI's questionable interpretation of the 
pen register statute, thereby closing the door to fully informed and 
deliberate consideration of this complex issue.

###


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