|SECURITY VS CIVIL RIGHTS?|
How will the new anti-terrorism legislation affect civil rights? Taking your questions are Douglas Kmiec, dean of the Catholic University School of Law; Anthony Romero, executive director of the American Civil Liberties Union; and Loretta Lynch, the former U.S. Attorney for the Eastern District of New York.
Huxtable from Lansing, Michigan asks:
Since the Constitution did not anticipate electronic monitoring systems and databases, don't we need a Constitutional amendment to protect our privacy, specifically in regards to electronic communication and identification?
How will the anti-terrorist bill affect our right to privacy on the Internet and cell phone communications?
While electronic and automated monitoring devices may assist federal authorities, wouldn't this violate our basic rights?
And, is the Attorney General trying to circumvent current privacy standards on paper communication by seeking greater power to audit electronic communication?
I don't believe what the Attorney General has asked for, and what the House and Senate appear on the verge of agreeing to, will erode the fundamental privacy of American citizens.
Much of the legislation, for example, is aimed specifically at expanding the surveillance authority of the Foreign Intelligence Surveillance Act, which is expressly directed at foreign powers and agents of foreign powers. Yes, new authority is being sought for roving wiretaps (to deal with the reality of wireless telephones) and to obtain rudimentary ID information, but not content, with reference to Internet transmission. The Supreme Court has held that there is no Fourth Amendment reasonable expectation of privacy with respect to phone numbers that come from a phone into the telephone company. Smith v. Maryland, 442 U.S. 735 (1979). Under current law, prosecutors routinely obtain this non-content-based information - that is, numbers dialed in and dialed out - through pen register/ trap & trace devices for criminal investigations.
Expanding that same capacity to include identifying URLs and the like on email only makes sense in light of both the new technology and what we already know about how the enemies of mankind of September 11 carried out their plotting. The legislative draft specifically excludes capturing content-based information protected under the privacy aspects of the First Amendment.
In protecting our privacy, the Constitution has already been interpreted to convey privacy rights in our electronic communications.
Thus, just as a warrant is needed before the government can search a private dwelling, so must a court order be obtained before the government obtains a wiretap of a private phone. Prior to obtaining a wiretap, the government must make a specific showing of criminal use of the relevant phone, as well as a showing as to why less intrusive means of surveillance (e.g., informants, physical surveillance), won't be effective. Court orders or grand jury subpoenas are also required before obtaining other information such as the customer's name, address, length of telephone service and form of payment. Use of the information gathered is limited to the criminal investigation, although the proposed legislation would authorize sharing of information to other agencies to further intelligence gathering and aid in terrorism investigations.
The proposed legislation does not change the appropriately high standard that must be met before electronic surveillance can be authorized.
With respect to the Internet and cable, however, where those electronic mediums act as telephone lines to transmit communications, they would be subject to the same rules and requirements as phone lines for purposes of electronic surveillance. This reflects the growing reality that the Internet and cable are really the telephones of today. While the expectation of privacy is the same, law enforcement needs may require surveillance there as well. The same strong showing would have to be made, however, before surveillance could be initiated. Thus, there would be no greater diminution in one's civil rights.
Mr. Huxtable is correct that technological advances in computers and monitoring technologies pose a huge new threat to Americans' privacy. A constitutional amendment, however, is extremely difficult to pass, and in any case the courts have clearly found that a right to individual privacy already exists as a constitutionally protected American freedom. The best way to meet the threat to our privacy is for Congress to simply enact new protections into law.
Unfortunately, the anti-terrorism legislation currently being considered by Congress would lessen Americans' privacy protections. It would sharply reduce judicial review and oversight of law enforcement wiretap activities; authorize intelligence wiretaps that don't specify the phone to be tapped or require that only the target's conversations be eavesdropped upon; and allow the FBI to circumvent the judicial review of the probable cause requirement of the Fourth Amendment by using its authority to conduct surveillance for "intelligence" purposes.
We must remember that technology, in particular, presents problems for safeguarding security and liberty. Last year, for example, the FBI unveiled "Carnivore," a powerful tool to monitor email and instant messages. Its proponents argue that it will be most effective as a weapon against terrorists. However, it could also be used against all citizens. For unlike a wiretap, which lets police listen in on conversations over one phone, Carnivore lets them monitor everyone who uses the same Internet provider that the suspect uses - whether they are under investigation or not. Clearly new rules are going to have to be put in place quickly to ensure that this new tool is not abused, and that innocent people aren't being illegally tracked.
What's needed are laws that balance the need for effective national security protections with the right of innocent Americans to be free from government surveillance. Congress and the Bush Administration have an obligation not to upset that balance.