10/21/01 Atlanta J. & Atlanta Const. D.2
2001 WL 3696165
The Atlanta Journal - Constitution
Copyright, The Atlanta Journal and Constitution - 2001

Sunday, October 21, 2001


If surveillance expands, safeguard civil liberties

The Uniting and Strengthening America Act of 2001, expected to be
signed by President Bush this week, will give our government
important new surveillance powers to fight terrorism.

Unfortunately, the USA Act does not make sure that these expanded
powers won't be abused. While it sharply expands how government can
wiretap e-mails and Web surfing, it provides no remedy if officials
exceed that authority. It also breaks down the wall that once
separated foreign intelligence-gathering from domestic law
enforcement, without creating new safeguards to replace those it

On the wiretap side, the act permits law enforcement to camp at a
phone company or Internet service provider and monitor a wide range
of communications as they flow through the network. The "computer
trespasser" provision, as it's called, is intended to let phone
companies and Internet providers bring police into their systems to
look for unauthorized usage.

The idea has a core of good sense. System owners should be able to
ask for help from the police when they expect a hacker attack. The
question is how well the new law has been written. The Bush
administration proposed the "computer trespasser" language just four
days after the attack on the World Trade Center. There was never a
single hearing in Congress on the idea.

Law enforcement abuses feared

One worry with this new law is that a company might "invite" the
police to stay based on undue pressure from law enforcement. Another
worry is that the police might intentionally exceed their authority.
Under the long-standing rule covering telephone wiretaps, law
enforcement is forbidden from using wrongfully obtained evidence in
court. But that rule does not apply to information illegally obtained
by police from wiretaps of e-mail and Web surfing.

Last year, the Clinton administration proposed that intercepted e-
mails be treated the same as intercepted phone calls. As the House
Judiciary Committee debated the wiretap proposal this month, it
agreed that illegal e-mail wiretaps should not be used in court. It
made sure that law enforcement would have to report on how often it
was using the expanded powers. The House also created a $10,000 fine
against the government for illegal Internet wiretaps. None of these
desirable safeguards made it into the final USA Act.

In a second big change, the USA Act integrates foreign
intelligence-gathering and law enforcement in ways forbidden since
the 1970s. Congress separated the two functions after discovering
numerous abuses of the power, from clandestine spying here in the
United States by the CIA to criminal prosecutions based on evidence
obtained overseas by means that would be illegal under the

Security forces work together

To stop those abuses, Congress enacted strict rules preventing the
CIA and other intelligence agencies operating overseas from sharing
information with domestic law-enforcement agencies. Those rules are
outdated in the face of the current threat. In the recent words of
one senior FBI official, "The walls are all down now."

In the wake of Sept. 11, new integrated command centers house
officials from the CIA, FBI, National Security Agency, Defense
Intelligence Agency, Customs Service, and so on.

The USA Act furthers this trend. It specifically provides that
secret grand jury testimony, historically used only for law
enforcement within the United States, can now be shared with
intelligence agencies without getting permission from a judge, or
even noting the fact that the information has been shared.

Similarly, the act allows information gathered from secret
wiretaps on foreign agents to go directly to law enforcement
officials. Defendants no longer have to be informed that the wiretap
occurred, as previous law required. From now on, it will be easier
for the government to conduct "foreign intelligence" wiretaps and use
information from those wiretaps without ever revealing their

Again, the logic for these changes is clear. Terrorists clearly
operate both in the United States and overseas. Communications on the
Internet constantly bounce between different countries. If we leave
walls in place between the CIA and the FBI, we prevent our agencies
from seeing dangerous patterns and taking needed action.

In summary, there are strong reasons to support new surveillance
powers. But we should stay keenly aware that we are repealing
safeguards created because of previous abuse. The Framers adopted the
Fourth Amendment to make sure that all government searches were
reasonable and approved by an independent judge. When Congress
revisits the wiretap rules soon, as it inevitably will, it must
create new safeguards to match the new surveillance powers our
government gained this week.

Peter P. Swire is a visiting professor of law at George Washington
University. During the Clinton administration, he chaired a White
House Working Group on how to update wiretap laws for the Internet

Return to the Peter Swire Publications Page