Surveillance powers: Changes being considered by Congress

On September 19, only eight days after the tragic terrorist attacks on New York and Washington, the Bush Administration unveiled its proposed Anti-Terrorism Act (ATA), legislation that included many changes to the nation’s current surveillance laws. The chart below outlines the changes proposed by the ATA, and the ACLU’s objections to those changes. Also compared are the latest versions of anti-terrorism legislation being considered in the House and Senate.

On September 19, only eight days after the tragic terrorist attacks on New York and Washington, the Bush Administration
unveiled its proposed Anti-Terrorism Act (ATA), legislation that included many changes to the nation’s current surveillance
laws. The chart below outlines the changes proposed by the ATA, and the ACLU’s objections to those changes.. Also
compared are the latest versions of anti-terrorism legislation being considered in the House and Senate.

The ACLU has five overall concerns about the surveillance provisions of the legislation being discussed:

  • They would reduce or eliminate the role of judges in ensuring that law enforcement
    wiretapping is conducted legally and with proper justification. There is no
    reason why the requirement to get a court order for surveillance should slow
    down the investigation of suspects for which there is evidence of terrorist
    activities.

  • They would dangerously erode the longstanding distinction between domestic
    law enforcement and foreign intelligence collection, which protects Americans
    from being spied upon by their own intelligence agencies, as happened during
    the Cold War.

  • The definition of “terrorism” is too broad, permitting the special surveillance
    powers granted in this legislation to be applied far beyond what is commonly
    thought of by the term. Under the definition proposed by the Administration,
    even acts of simple civil disobedience could lead organizations such as People
    for the Ethical Treatment of Animals (PETA) to become targets of “terrorist”
    investigations.

  • Many of the expansions in surveillance authority being considered are not
    limited to even the broad definition of terrorism investigations.

  • The Congress is moving unnecessarily and irresponsibly quickly on these
    measures. It takes a great deal of time to deal with complex issues such as
    how to apply wiretap law to the Internet, and to think through all the possible
    unintended consequences of legislative language. Few of the provisions being
    discussed are needed for the current terrorism investigations, so Congress
    should take the time to do it right.

Security and civil liberties do not have to be at odds. Law enforcement authorities already have great leeway under current law
to investigate suspects in terrorist attacks – including broad authority to monitor telephone and Internet communications. In
fact, under current law, judges have rejected only three federal or state criminal wiretap requests in the last decade.

Domestic Surveillance Provisions





















































































































































Type of Surveillance

Anti-Terrorism Act

House bill
(PATRIOT Act)

Senate bill
(USA Act)

ACLU Comments

Pen Register/ Trap Trace
(PR/TT) authority for the Internet
Allows for the interception
of numbers dialed on a telephone line based only upon a law enforcement
assertion that it would be “relevant” to an investigation.
PP/TT may be used to collect
“addressing” information on the Internet.
PR/TT may be used to collect
“addressing” information on the Internet, but not the content of communications.
“Content” is not defined. Judges have no power to reject a PP/TT wiretap.
Wiretapping equipment must be configured to exclude content and ISPs cannot
be required to use equipment designed to allow surveillance.
Similar to PATRIOT.

On the Internet “addressing” is a meaningless term; PR/TT
wiretaps inevitably capture “content.” Neither House nor Senate defines
what is content or provides for judicial oversight, leaving law enforcement
officials (using methods like Carnivore) to decide for themselves what
is content. more>

Nationwide PR/TT (roving wiretaps) A PR/TT warrant applies only within jurisdiction
of the Court that issued it.
PR/TT orders issued by one judge can
be made valid anywhere in the United States.
Same as ATA Same as ATA Marginalizes the judiciary. Allows for
blank warrants explicitly barred by the Constitution. Makes it difficult
for judges to meaningfully monitor orders, or for small, remote ISPs to
contest them. more>
Nationwide subpoenas for electronic records Orders apply only within geographic jurisdiction
of the Court approving the surveillance.
Allows courts to issue orders for seizure
of electronic evidence in storage, which may include content, that apply
to any service provider nationwide.
Same as ATA Same as ATA Makes it difficult for judges to meaningfully
monitor orders, or for small, remote ISPs to contest them. more>
Seizure of voice mail Law unclear but most believe law enforcement
must prove probable cause to a judge.
Stored voice mail messages can be obtained
under same terms as stored email: by warrant or by subpoena if more than
180 days old.
Same as ATA Same as ATA Extends the same inadequate standards
that currently govern e-mail to voice mail, which is content and should
be subject to the same standard as a wiretap.
Dissemination of wiretap information,
including intercept content
Limits disclosure to law enforcement
and investigative officer.
Permits broad disclosure to any executive
branch employee.
Dissemination limited to federal law
enforcement, intelligence, immigration, national security, protective agency,
President, or VP as it relates to foreign intelligence.
Allows disclosure of foreign intelligence
to intelligence, defense, immigration, and protective officials in performance
of their duties. Unauthorized disclosure subject to penalties of Privacy
Act.
Disclosure not limited to terrorism cases.
May be abused for political purposes. Disclosure to intelligence agencies
about U.S. citizens effectively puts the CIA back in the business of spying
on Americans.
Admission into evidence of wiretap information
from foreign governments
Not allowed. Allows evidence if obtained without US
participation or with US participation where interception would have been
lawful in US.
Leaves current law unchanged Leaves current law unchanged ATA would encourage using foreign wiretaps
to spy on Americans and undetectable collusion between US and other national
intelligence agencies.
Interception of “computer trespasser”
information
Not permitted by government without complying
with wiretap law.
Permits interception without notice to
the target of communications of a broadly defined “computer trespasser”
with consent of owner/operator of a protected computer. Computer trespasser
could be a customer who violates an ISP’s terms of service.
Same as ATA Same as ATA, except it bars customers
or employees who violate terms of service contracts from being treated as
“trespassers.”
The provision is too broad. It removes
judicial oversight from the process, and isn’t limited to terrorism cases.
Innocent targets will never know of surveillance. Except under Senate version,
anyone who violates an ISP’s or employer’s “terms of service” can be surveilled.
more>
Sunset provision None None Surveillance provisions sunset December
31, 2003.
None New surveillance powers have not received
careful consideration. If they are to be approved, they should be sunsetted.
New surveillance powers should be limited to terrorism.

 

Foreign Intelligence Surveillance Provisions

Type of surveillance

Current
Law

(FISA)

Original Bush Administration Proposal


(Anti-Terrorism Act)

House bill
(PATRIOT Act)

Senate bill
(USA Act)

ACLU Comments

Multi-point authority (roving wiretaps) Surveillance orders apply only to one
specific Internet Service Provider (ISP).
Allows surveillance to follow a person
wherever they go or may go.
Same as ATA Same as ATA Intercept is not limited to the target
and will lead to interception of many innocent conversations not involving
the target. more>
Criminal evidence uncovered using an
intelligence (FISA) wiretap.
FISA wiretaps may only be used when foreign
intelligence gathering is the primary or sole purpose. If a FISA wiretap
yields evidence of crime and investigation of that crime becomes primary
purpose of wiretap, criminal wiretap standards must be applied.
Allows lower standards of FISA to be
used whenever foreign intelligence is a purpose, even if gathering evidence
for the criminal case is the primary purpose.
FISA may be applied when foreign intelligence
is “a significant purpose.”
Same as Patriot. Bypasses the 4th Amendment’s
probable cause standards by extending weaker intelligence-gathering wiretap
standards to criminal searches. Even House & Senate’s “significant purpose”
language will encourage use of FISA rather than more privacy-protective
domestic surveillance laws. more>
Sharing of foreign intelligence information
with domestic law enforcement officials
Wiretap and grand jury information from
intelligence cases may not normally be disclosed to non-relevant law enforcement
officials.
Permits unfettered sharing of any “foreign
intelligence information” with many federal officials not involved in law
enforcement.
Same as ATA except limits disclosure
for “performance of official duties.”
Allows disclosure of foreign intelligence
(and grand jury) information to intelligence, defense, immigration, and
protective officials for “performance of official duties.” Makes unauthorized
disclosure subject to penalties.
No definition or limitation of “foreign
intelligence.” No judicial authorization required. Puts CIA back in the
business of collecting information about Americans. Open to abuse against
political “enemies.” more>
Pen register and trap and trace authority
(PR/TT)
PR/TT only allowed when the government
proves the surveillance target is “an agent of a foreign power.”
Deletes “agent of a foreign power” requirement
and allow use of PR/TT when government asserts (not proves) that it is “relevant”
to an ongoing intelligence investigation.
Limits use of FISA PR/TT searches to
the purpose of protecting against terrorism or foreign espionage, and bans
their use based on activities protected by the First Amendment.
Essentially the same as Patriot. Eliminates “agents of foreign powers”
restriction that protects Americans from improper spying by intelligence
agencies. Allows rampant use of PR/TT surveillance. more>
Business records/tangible things Court order required for access to certain
tangible items such as books, records, and papers.
Allows access to tangible things with
an administrative subpoena instead of a court order when those things are
“relevant” to an intelligence or terrorism investigation.
Retains the current requirement for a
court order, but removes limits on the scope of the tangible items that
can be released with one.
Same as Patriot. ATA greatly expands access to records
without any judicial review. All versions will expand the replacement of
domestic laws by FISA to gain access to records.
Access to citizens’ educational, credit,
consumer and communications records.
Banking, credit and telecommunications
records may be accessed only if the consumer is an agent of a foreign power.
The release of information on students is generally prohibited.
Allows access to records on certification
that they are “relevant” to a intelligence investigation; eliminates requirement
that target be an agent of a foreign power. Overrides privacy protections
for students in any “national security” matter.
Leaves current law unchanged. Similar to ATA. Amends Federal communications
and privacy laws to let FBI access records without cause based on a mere
certification of relevancy to foreign intelligence. No requirement that
target be an agent of a foreign power. Amends student privacy laws to allow
Dept. of Justice to seek warrants for educational records related to terrorism.
Both ATA provisions allow sweeping access
to sensitive information about Americans under a rationale of intelligence.
Such access should be subject to a showing that the subject is an agent
of foreign power and that an investigation involves terrorism.
Time limits on surveillance orders Orders for physical surveillance expire
in 45 days, electronic surveillance in 90 days.
Allows surveillance orders for non-citizens
for up to 1 year (except green card holders).
Same as ATA Initial electronic surveillance orders
expire in 90 to 120 days, with extensions of up to a year; physical search
orders last 45-90 days.
Severely limits FISA Court’s power to
ensure that surveillance is continued only when productive. more>
Sunset provision None None Surveillance provisions sunset Dec. 31,
2003.
None New surveillance powers have not received
careful consideration. If they are to be approved, they should be sunsetted.
New surveillance powers should be limited to terrorism.

Author: The American Civil Liberties Union

News Service: The American Civil Liberties Union Freedom Network

URL: http://www.aclu.org/congress/patriot_chart.html