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Uncle Sam reinstates big brother

By Declan McCullagh, Special to ZDNet
11 February 2003


Attorney General John Ashcroft wants even more power to snoop on the Internet, spy on private conversations and install secret microphones, spy-ware and keystroke loggers.

Ashcroft's Justice Department has quietly crafted a whopping 120-page proposal that represents the boldest attack yet on our electronic privacy in the name of thwarting future terrorist attacks. The non-partisan Centre for Public Integrity posted the draft legislation, which reads like J. Edgar Hoover's wish list, on its Web site Friday.

Called the Domestic Security Enhancement Act (DSEA), the legislation has not been formally introduced in Congress, and a representative for Ashcroft indicated on Friday that it's a work in progress. But the fact that the legislation is under consideration already, before we know the effects of its USA Patriot Act predecessor, should make us realise that the Bush administration thinks "homeland security" is the root password to the Constitution.

Don't believe me? Keep reading and peruse some of DSEA's highlights:

  • The FBI and state police would be able to eavesdrop on what Web sites you visit, what you search for with Google and with whom you chat through email and instant messaging--all without a court order for up to 48 hours. That's if you're suspected of what would become a new offense of "activities threatening the national security interest."
  • Currently police can seek a warrant to "require the disclosure by a provider of electronic communication service of the contents of an electronic communication." Under existing law, police must notify the target of an investigation except in rare cases such as when witnesses may be intimidated or a prospective defendant might flee. DSEA allows police to delay notification for three months simply by citing "national security."
  • When investigating a computer crime or other serious felonies, prosecutors would be able to serve secret subpoenas on people, ordering them to hand over evidence and testify in person. If served with a secret subpoena, you'd go to jail if you "disclosed" to anyone but your lawyer that you received it.
  • Police would be able to ask a judge to issue search warrants valid for anywhere in the United States if someone were suspected of computer hacking. Previously that law applied only to "violent acts or acts dangerous to human life."

Other portions of DSEA are devoted to unshackling the mighty Foreign Intelligence Surveillance Act (FISA), a post-Watergate law that was intended to be used against foreign spies.

FISA isn't limited to traditional phone wiretapping. There's an entire section devoted to electronic surveillance, permitting "the installation or use of an electronic, mechanical or other surveillance device." That's a flexible definition that stretches to include the FBI's Carnivore Net-surveillance system, keystroke loggers and remotely installed spyware like the FBI's Magic Lantern spyware.

"I think the Department of Justice has concluded that it wants the ability to use these techniques in virtually every situation," says Marc Rotenberg, director of the Electronic Privacy Information Centre. "This is breathtakingly bad. Apart from the dramatic expansion of government surveillance authority and government secrecy, (the DSEA) transfers enormous power from the Congress and the judiciary to the executive branch and gives the attorney general absolutely unprecedented authority. This is more than an assault on constitutional liberty--it is an attack on the constitutional system of checks and balances."

Another worrisome part of the DSEA is a section that targets encryption. It would create a new federal felony of wilfully using encryption during the commission of a felony, punishable by "no more than five years" in prison plus a hefty fine.

When encryption eventually becomes glued into just about every technology we use, from secure Web browsing to encrypted hard drives, the DSEA would have the effect of boosting maximum prison terms for every serious crime by five years. It'll be no different--and no more logical--than a law that says "breathing air while committing a crime" is its own offence.

A leaked Justice Department document suggests that Ashcroft already forwarded a copy of the DSEA to House Speaker Dennis Hastert and Vice President Dick Cheney last month. Unfortunately, with a Congress as supine as ours happens to be, Ashcroft will likely get what he wants. After all, the USA Patriot Act passed the House by a 6-to-1 margin and ran into only one dissenting vote in the Senate.

Many of the DSEA's new powers will go--surprise!--to agents in FBI field offices. That possibility should worry anyone with an appreciation of history, which reveals that time and again, the FBI and other law enforcement organisations have ignored the law and spied on Americans illegally, without court authorization.

In the past, government agencies have subjected hundreds of thousands of law-abiding Americans to unlawful surveillance, illegal wiretaps and warrantless searches. Eleanor Roosevelt, Martin Luther King, feminists, gay rights leaders and Catholic priests were spied upon. The FBI used secret files and hidden microphones to blackmail the Kennedy brothers, sway the Supreme Court and influence presidential elections.

It's true that our current FBI appears to be more trustworthy than the bureau during its dark years of the 1950s and 1960s. But the possibility that future FBI directors may misuse the DSEA's vast powers--and transform America into a tech-enabled surveillance state--means that we should be extraordinarily cautious about acquiescing to Ashcroft's demands.

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