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
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
- 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
- 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
"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
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.