Civil Rights
Oct. 13, 2001
Accountability Will Ensure Protection of Civil Liberties
Immediately after the Sept. 11 attacks, the U.S. Senate and Attorney General John Ashcroft proposed measures that would expand federal law-enforcement surveillance authority. Civil libertarians have voiced concerns about incursions on privacy. Ashcroft has expressed frustration that final legislation has not yet been passed.
Rory K. Little
Joseph W. Cotchett Jr. Professor of Law, UC Hastings College of the Law
Email: littler@uchastings.edu
Rory clerked at the U.S. Supreme Court and also served as an associate deputy attorney general in 1996-97
Immediately after the Sept. 11 attacks, the U.S. Senate and Attorney General John Ashcroft proposed measures that would expand federal law-enforcement surveillance authority. Civil libertarians have voiced concerns about incursions on privacy. Ashcroft has expressed frustration that final legislation has not yet been passed.
America appears to have learned some lessons from past actions taken in response to national emergencies. World War I led to criminal prosecutions for free speech. Pearl Harbor caused civil liberties to be sacrificed as American citizens were incarcerated for their ethnicity. Such overreaction has not happened today, even after the most horrific acts of terrorism ever perpetrated on American soil.
Instead, the attorney general and FBI Director Robert Mueller have gone on national television denouncing ethnic violence. Congress is exercising caution, and protecting civil liberties appears to be a part of the legislative mix.
The new legislation will not give the attorney general everything he has requested. Moreover, any legislation is likely to "sunset" after a few years. Concerns that the civil liberties sky is falling are exaggerated.
Much of what has been proposed is already lawful, either by court decision, limited legislative authority or practice. The attorney general simply is requesting that the authority be made explicit. What may surprise many Americans is how much surveillance is already permitted.
• Person-focused wiretaps. The phrase "roving wiretaps" has been used to attack a reasonable change in electronic-surveillance laws. This misleading label should be abandoned. No one is asking for authority to "rove" around your neighborhood and tap whomever they please. Instead, the legislation simply will permit a single wiretap order for all communications devices used by the target of the investigation. In fact, such authority exists, in limited contexts, under 18 U.S.C. Section 2518(11)(b).
Critics have suggested this will allow the FBI to tap phones used by the target in the homes of friends and relatives. This is true, but it is true under existing law. The only difference will be that far fewer hours will be wasted on duplicative applications.
• Nationwide wiretap authority. A judicial wiretap order is good only in the federal district where it is issued. When a target travels to one of the 94 districts, a new application has to be prepared. Each application consumes 200 pages and lawyer and judge time. This is needlessly time-consuming because judges always sign what is essentially a duplicate order. Nationwide authority will not permit the FBI to "judge shop" any more easily than they can today. The order still must be sought in a district where the crime is occurring, and applications are randomly assigned to whichever judge is on "duty."
• Access to ISP and Web site information. It may surprise most Americans that the FBI can get your telephone "toll data," such as the identity and addresses of subscribers and long-distance numbers dialed out, without a court order. But more than 20 years ago, in Smith v. Maryland, 442 U.S. 735 (1979), the court decided that telephone subscribers don't have a "reasonable expectation of privacy" in information they provide to the phone company. Thus, law enforcement can get toll data with a simple subpoena and automatically can get a "pen register" or "trap and trace" order (to record incoming or outgoing calls) from a judge with a simple application.
New legislation will extend this authority, explicitly, to Internet service providers for limited Web site and e-mail information. The constitutional analogy to telephone toll data is clear: By using an ISP, we knowingly provide the data of our e-mail "to" and "from" fields, and our Web site visits and searches, to unknown third parties. In fact, some courts have ruled that existing authority applies to these new technologies.
This proposal would allow the notorious "Carnivore" program to be applied more easily to ISPs. Carnivore is a program that allows FBI computers to "eat through" messages looking for key words like "bomb." The FBI employs Carnivore only after getting a full-blown wiretap court order. The new legislation would permit the FBI to abandon that procedure in favor of streamlined pen-register court orders.
Although the analogy to telephone data is clear, there seems to be a real threat to privacy here. But again, the problem is with existing law, not with the attorney general's request to make current law consistent with new technology.
Many believe that Smith was wrongly decided. The idea that we don't "reasonably expect" privacy in the anonymity of massive and faceless technology is inaccurate. We do "expect" privacy: Although we all understand that machinery somewhere records all the numbers we dial, we don't think that anyone looks at them. Permitting law enforcers to "cruise" through ISPs and Web sites and identify all visitors, without discretionary oversight by a judge, seems more intrusive than giving up phone numbers.
However, initial drafts of this proposal have been amended to make a "no subject matter" limitation clear. Only "to" and "from" fields will be searchable without a full search order. With that improvement, extending existing authority to new technology seems reasonable.
• Extending Foreign Intelligence Surveillance Act authority. In 1978, Congress created a "secret" court to handle foreign intelligence surveillance orders. 50 U.S.C. Section 1801 et seq. Such orders are limited to investigations that focus exclusively on foreign intelligence matters. The attorney general seeks authority to use this court when foreign terrorism or intelligence is involved but is not the exclusive focus.
Again, if there is a problem here, it is with the existing law. Congress decided in 1978 that the specter of foreign terrorism was sufficient to require unusual procedures. If that judgment was correct then, it seems reasonable to stick with it now, even if the foreign-intelligence purpose is not exclusive or even primary.
Part of the Sept. 11 problem may have been a failure to share information between foreign-intelligence and law-enforcement agencies. There is good reason to be concerned about blurring these functions. But an impermeable "wall" between them is also a bad idea.
Soon we should know precisely what new laws are proposed. So far, rumor has been outrunning reality. The process of legislative compromise appears to be working, and civil liberties appear to be playing a central role. The care that is being taken with this legislation is good. We cannot allow the exigencies of this moment to codify sloppy legislative language.
What seems threatening to some is, for the most part, law that is on the books. Certainly, caution is warranted. But some of the proposals are not controversial. These should be placed in a separate bill that can be enacted quickly. Law enforcers should be given the tools that they need to keep up with the terrorists' technology.
In order to have effective law enforcement, the reality is that we must trust the law enforcers. If we do not trust them, we ought not provide them with discretionary tools, even if they are effective. However, the overall record of federal law-enforcement authority is one that merits our trust. Where abuses have occurred, the American system has been good at detection, correction and accountability.
Legislation must not be passed without strong accountability provisions. Congress and the courts should provide oversight of the executive branch's exercise of law-enforcement authority. But with accountability, effective surveillance authority should not be denied.
Rory Little is a professor of criminal law and procedure at Hastings College of the Law in San Francisco.
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