Congress makes it easier to snoop

Big Brother will probably grow bigger under antiterrorism legislation emerging from the United States Congress in response to the Sept. 11 attacks on New York and Washington.

Both the House and the Senate approved bills last week making it easier for intelligence agents to snoop on techno-savvy terrorists.

With just a single warrant, agents will be able to tap all of the telephones or Internet accounts a suspected terrorist uses and get lists of every e-mail address he contacts.

Justice Department officials say the measures are simply a matter of the law catching up with technology at a time when terrorists use disposable cellphones and e-mails locked with encryption software.

But civil libertarians fear these new measures will decrease oversight by judges and tread on citizens' privacy, without necessarily preventing future terrorist attacks.

Lawmakers first reined in domestic spying after Watergate and the end of J. Edgar Hoover's tenure at the Federal Bureau of Investigation by adopting the Federal Intelligence Surveillance Act (FISA) in 1978.

Under FISA, military and political intelligence-gathering operates under stricter judicial oversight than before 1978 - and also under rules different from those governing criminal investigations. Intelligence agents are barred from turning their findings over to the police for criminal investigations, but on the other hand, they don't need to present as much evidence to get approval for a wiretap as do their police counterparts.

After the Sept. 11 attacks, the Bush administration proposed loosening many of these constraints on domestic spying as part of a broad antiterrorism bill submitted to Congress.

"Technology has dramatically outpaced our statutes," Attorney General John Aschroft told the House Judiciary Committee. "Law enforcement tools created decades ago were crafted for rotary telephones - not e-mail, the Internet, mobile communications and voice mail."

The Clinton administration unsuccessfully proposed similar changes in 1996 and 1998, says former Deputy Attorney General Eric Holder. This time, Congress will likely approve roving wiretaps for listening in on terrorists.

Instead of obtaining a separate warrant from a different court for each phone line a target uses, investigators would need only one court approval.

E-mail addresses would be treated like phone numbers, allowing the use of technology like "trap and trace" registers that can record every number dialed.

Accessing the contents of the e-mail message, or even the subject heading, would still require a showing of probable cause and a search warrant.

Both House and Senate antiterrorism bills expand the types of investigations that can apply for wiretaps under the less stringent FISA standard. It may now be used only when intelligence gathering is "the primary purpose" of the surveillance. The new legislation would allow the FISA standard to apply to investigations in which intelligence gathering is a "significant purpose."

Critics fear that law-abiding citizens will see their conversations exposed along with those of criminal suspects.

"If law enforcement is listening on 10 telephones rather than two telephones, it's more likely that that they will catch other conversations they don't have warrants on," says Shari Steele, executive director of the Electronic Frontier Foundation in San Francisco.

Experts also question the wisdom of reducing judicial scrutiny, which ensures that someone outside the executive branch oversees wiretap requests.

Currently, a seven-member foreign intelligence court reviews all FISA wiretap requests in a secure room at the Justice Department.

"It's there as a check and balance," says Kenneth Bass, a Washington attorney who previously served as the Justice Department's intelligence counsel.

Yet even now, judges rarely deny wiretap requests.

The FISA court has turned down only one wiretap request in its entire history, while federal and state courts approved all 1,190 wiretap requests last year, according to an analysis by the Center for Democracy and Technology in Washington.

To address privacy concerns, House Democrats proposed allowing citizens to sue if information gathered from the new surveillance powers winds up going public, and also proposed making the roving wiretap power expire in 2003.

Congress also threw out more controversial items on the Justice Department's wish list. For example, the Bush administration had proposed allowing US prosecutors to use intelligence gathered by foreign governments - even if the information was obtained by methods that violate US law.

Even with the added tools, it's not clear whether better intelligence could have prevented the Sept. 11 attacks. Investigators confiscated evidence from a public computer in a Delray Beach, Fla., library where one of the hijackers accessed the Internet.

"Clearly, having these powers is going to make it easier for law enforcement to pick up leads and gather evidence," says Evan Cox, a San Francisco attorney specializing in Internet privacy and security at the firm of Covington & Burling.

But other observers say intelligence agencies need to do a better job analyzing the data they already receive.

"The FBI had the tools it needed to work with before," says Prof. Barry Kellmann of DePaul Law School in Chicago. "This clarifies, this simplifies, but does it really make the difference? I'm skeptical."

One issue left unresolved by the antiterrorism bills: encryption.

For years, law enforcement officials have said they need ways to get around encryption software that makes it difficult to crack e-mail messages. In the past, law enforcement officials unsuccessfully proposed requiring chips that would give them a backdoor that the government could access.

Cox predicts that the government may address the issue more quietly this time, approaching individual companies to urge them to install backdoors.