As the government frantically works to fast-track new antiterrorism legislation in the face of the Sept. 11 attacks on the U.S., civil liberty groups are expressing increasing concern that lawmakers have cast their nets too wide, at the cost of online privacy.
"When our civil liberties are at stake we need to sit down -- whether on a fast or slow track -- and make sure (that the laws) are clear on the face and we know what's authorized," said Jerry Berman, executive director of Center for Democracy and Technology (CDT).
Berman's comment came as he briefed reporters Monday in preparation for his scheduled testimony before the Senate Judiciary Subcommittee on the Constitution tomorrow.
The House is slated to mark up new antiterrorism legislation Wednesday, as part of the government's push to crack down on terrorists following the deadly attacks in New York and near Washington, D.C., last month, which left over 6,000 people presumed dead.
One of the pieces of legislation, the Anti-Terrorism Act of 2001 (ATA) was proposed by President George W. Bush's administration shortly after the attacks, but has received vocal criticism from a number of groups who claim that its surveillance and intelligence-gathering provisions step on the heels of civil rights.
Although House Democrats and Republicans reached an agreement Monday on a scaled-back version of the ATA, civil liberties groups claim the legislation is still too sweeping. The compromise bill expands officials ability to wiretap suspected terrorists, share information about them and monitor their Internet communications, but unlike the original bill, it does not allow authorities to detain immigrants suspected of terrorism indefinitely without charges.
But what is immediately worrisome to the CDT's Berman is that the proposed legislation allows for electronic surveillance without a warrant and less probable cause than is currently needed. More alarming, "it appears that anyone who doesn't have authorized access to a computer has a zero-level of privacy," said Berman, noting that the bill is not limited to surveillance of people who are apparently engaged in terrorist activity.
The CDT executive director gave the example of a person downloading music on a site without authorized permission. Under the bill as it is now, the Internet service provider (ISP) could alert authorities of the user's activities and officials could then use wiretaps and monitor the user's e-mail without a warrant, Berman said.
Furthermore, the "roving tap" provisions would allow the government to intercept whatever phone or e-mail account a suspect uses, even if the government cannot specify it in advance. The problem, Berman said, is that the proposed language places no limitation on the exercise of the roving tap authority and offers the FBI no guidance for its exercise.
And although under the bill e-mail can be monitored as easily as phone communications are now -- armed with a subpoena authorities can see when and to whom an e-mail was sent -- permission for e-mail tracking would provide significantly more information than phone tracking does, offering subject header information and URL addresses.
The monitoring of the actual correspondence of e-mails would require a search warrant from a judge, however, after showing probable cause that a crime has been committed.
What's more, the electronic monitoring provisions were just the tip of the iceberg in what appears to be a laundry list of concerns the CDT has about the legislation, Berman indicated. The organization claims that because the legislation is being fast-tracked, the usual safeguards of discussion and debate are being cast aside.
"It's not a normal process and the danger of getting it wrong is significantly high," Berman said. With recent changes to the legislation "we don't even know what bill we are commenting on," he added.