cr> Wiretapping and anti-terrorist measures


(Note from moderator: I'm reprinting one story of interest from the
ACLU Newsfeed, plus info on how to subscribe.--Andy)

Note: The following op-ed appeared in the Los Angeles Daily Journal.

                         *Congress Plans "National Wiretap Week"*

                                    By Laura W. Murphy
                                    Director, ACLU National Washington Office

     There's been no official proclamation, but the U.S. Congress is
preparing to celebrate "National Wiretap Week" from March 13th through the

     During this seven-day period, two pieces of legislation -- the so-called
antiterrorism act and the immigration bill -- are scheduled for debate on the
floor of the House.  Taken together, these bills would dramatically expand
federal law enforcement powers, including federal wiretap authority.

     These bills continue the relentless press from Federal law enforcement
authorities for wider powers. Yet in a November , 1995 letter to the House
Judiciary Committee, FBI Director Louis Freeh assured a nervous Congress that
his department had no intention of expanding the number of wiretaps or the
extent of wiretapping.

     And this is not the only sign of deception. Only two weeks before his
November letter, the FBI published a stealthily phrased notice in the Federal
Register signaling, in effect, that the federal government wants to require
the nation's phone companies to radically alter their critical electronic
equipment to enable the Bureau to eavesdrop on one out of every one hundred
telephone conversations occurring at any given time in the nation's largest
cities and other, undefined prime target areas.

     Which FBI should we believe? Is Director Freeh deceiving Congress or
does the FBI not understand the full consequences of its own wiretapping
proposals and the bills that it supports? From all the evidence, it seems
that Director Freeh is trying to hide the truth: the FBI certainly does
intend to expand wiretapping, as it has done in each of the years that Mr.
Freeh has been at the helm of the agency.

     Clearly, what is at stake is our privacy. We must be secure in the
knowledge that our government is not turning into Big Brother by
eavesdropping on our every conversation. According to the U.S. Supreme Court,
each and every electronic intercept constitutes a search and seizure under
the Fourth Amendment.   Already, too many innocent conversations-- nearly two
million in 1994 alone -- are intercepted by federal and local law enforcement
wiretaps.  In fact, every time a wiretap or other form of electronic
surveillance is placed, nearly 1,000 innocent conversations are intercepted.

     According to data from the Administrative Office of the United States
Courts, federal law enforcement agencies increasingly use wiretaps and other
forms of electronic surveillance. In fact, from 1984 to 1994, the number of
federal law enforcement electronic surveillance intercepts nearly doubled.
(Electronic surveillance, these days, includes wiretaps, telephone number
traces, electronic listening devices commonly known as "bugs," and
interception of pager transmissions, E-mail and cellular telephone

     And the future, if the FBI has its way, is even more grim. The Clinton
Administration's so-called counter-terrorism legislation -- which is being
pushed by Director Freeh -- would expand the list of felony investigations in
which an electronic surveillance order could be sought, expand authority to
conduct "roving" wiretaps and wiretaps without a prior court order, and
permit the FBI to use the fruits of illegal wiretaps in court when law
enforcement officials act illegally but do so in "good faith."  Similarly,
the immigration legislation would dramatically expand the list of crimes for
which a wiretap could be placed.

     Although the FBI would have us believe that more wiretapping is needed
to save the country from terrorists and prevent another Oklahoma City, the
numbers simply do not support the assertion. Though authorized already,
wiretapping is almost never used to investigate bombings, arson or firearms
violations. Indeed, the last time a wiretap was requested by a law
enforcement agency to investigate one of these crimes was in 1988. In the
past 11 years, fewer than 0.2 percent of all law enforcement wiretap requests
were made in connection with such crimes. Instead 83 percent of all
electronic surveillance intercepts are sought to investigate possible
gambling and drug offenses.

     To assuage the American public, already jittery from exposure of
possible federal law enforcement abuses at Waco and Ruby Ridge, the FBI
assures us that it will still have to go to court and demonstrate probable
cause to a judge before it is allowed to engage in electronic surveillance.
What it neglects to mention, however, is that its requests for wiretaps are
almost never turned down by the courts: no request for a law enforcement
intercept has been rejected since 1988; no request for a foreign intelligence
intercept has been turned down since 1979.

     The FBI's assurance also fails for another more fundamental reason. In
every decade since the Bureau was created, the FBI has engaged in
unconstitutional harassment and surveillance of disfavored individuals and
groups like civil rights activists or peace activists. And if history is any
guide, it will not be until 2005 that we learn if this decade's victims may
include legal gun owners, non-violent militias or anti-abortion activists.

     Why is this all coming to light now? Why suddenly are we learning of the
FBI's seemingly insatiable desire to listen in on our conversations? The
answer, in one word, is technology.

     As the nation continues its switch from analog to more efficient digital
telephone networks, the FBI fears it will lose its ability to wiretap
completely.  Last year, with that fear in mind, the Justice Department
persuaded Congress to pass digital telephony legislation that -- for the
first time in our history -- endorsed the radical notion that the government
could require an entire industry to alter its technology so the government
could continue to snoop.

     The digital telephony legislation, which was bitterly opposed both by
privacy advocates and some in the telecommunications industry, is akin to
requiring builders to put listening devices in the walls of the new homes
they build so the bugs could be turned on one day if the government wants to
listen in.

     Similarly, in another example of devastatingly bad judgment, the FBI is
trying to convince Congress to make it illegal to have a conversation made
private through encryption unless the Bureau is given a key so, if it wants
to, it can crack the code and listen in. This plan is being bitterly opposed
by industry groups and privacy advocates.

     In this age of massive commercial databases and computers storing and
sorting through every detail of our private lives, it would be nice to think
that technological advances could actually improve our privacy rights. But
the FBI seems determined, for reasons as yet unknown, to turn this potential
benefit against us, thereby stripping more of our constitutional rights.

     Instead of turning March 13-20 into "National Wiretapping Week,"
Congress would be wise to put the brakes on the FBI and take a second look at
the proposals it has approved or is considering: the digital telephony
legislation it adopted last year, the pending counter-terrorism legislation,
and the wiretapping provisions of the immigration bill.  The rights protected
by our  Constitution should be respected every day of the year.

ACLU Newsfeed
American Civil Liberties Union National Office
132 West 43rd Street
New York, New York 10036

To subscribe to the ACLU Newsfeed, send a message to •••@••.••• with
"subscribe News" in the body of the message.  To terminate your subscription,
send a message to •••@••.••• with "unsubscribe News" in the body of
the message.

For general information about the ACLU, write to •••@••.•••.

 Posted by Andrew Oram  - •••@••.••• - Moderator: CYBER-RIGHTS (CPSR)
   CyberJournal:  (WWW or FTP) -->
 Materials may be reposted in their _entirety_ for non-commercial use.