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Commentary

Look Who’s Looking



While many Americans have been focusing their attention on Afghanistan since Sept. 11th, Congress has rushed through legislation that will purportedly prevent future terrorist attacks. The Uniting and Strengthening America Act (cynically abbreviated as the "USA Act"), passed by Congress and signed by President Bush, opens the door to significant invasions of the privacy of U.S. citizens through electronic surveillance by federal agents.

The Fourth Amendment to the U.S. Constitution intends to protect “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It also requires that a search warrant be issued by the courts and based on probable cause.

In addition to granting new authority to federal agents to conduct “secret searches,” should the new law survive judicial scrutiny, it will undermine a court’s ability to review and authorize search warrant requests by federal agents to perform electronic surveillance and wiretapping.

Perhaps the most significant new authority federal agents will have is the ability to monitor communication over the Internet. Law enforcement will soon be able acquire certain Internet information with an easily obtained subpoena instead of a court-authorized search warrant. This new authority is patterned after existing telephone surveillance laws, which requires investigators to obtain search warrants from a court to monitor “content information,” but allows law enforcement to monitor “identifying information” without court approval.

Allowing federal authorities to monitor Internet communication necessitates the use of Carnivore, the FBI’s controversial monitoring system, on Internet Service Providers (ISPs). Carnivore allows federal agents access to every piece of information that passes through targeted ISPs, not just information specified in search warrants. Although the FBI maintains that it will only monitor the information specified on subpoenas and warrants, these investigative tools have been abused in the past.

For example, as M.L. Elrick of the Detroit Free Press reported earlier this year, Michigan police officers “entrusted with the personal and confidential information in a state law enforcement database used it to stalk women, threaten motorists, and settle scores.” Internationally, the European Union expressed concern that Echelon, an electronic surveillance system used to intercept private and commercial communication and sponsored by the U.S. and four other English-speaking countries, was being used for corporate espionage.

The USA Act will surely give federal agents the opportunity to secretly and indiscriminately monitor the e-mails, credit card purchases, web history information, and all other information generated by U.S. citizens that passes through the Internet.

Moreover, the USA Act permits federal agents to place wiretaps with sweeping court orders that don’t include any of the specifics typically required of search warrants. The U.S. Department of Justice (USDoJ) deems this authority necessary because one terrorist may use many electronic communication devices, and obtaining a warrant for each device takes time. Although non-specific warrants would make law enforcement’s job easier, the Fourth Amendment also requires warrants to “particularly describ[e] the place to be searched, and the persons or things to be seized.” Without this constitutional limit, federal agents could legally engage in surveillance arbitrarily, using one warrant to wiretap any phone they want. A court’s power to review each request for a search warrant is crucial to limiting law enforcement’s ability to eavesdrop.

The USDoJ’s original outrageous proposal, the then-called Mobilization Against Terrorism Act, makes obvious federal law enforcement’s lack of respect for the civil rights of American citizens. Although Congress modified or eliminated some of the more constitutionally offensive proposals, those expanding electronic surveillance remain practically untouched.

Because of the complexity of new technology and the USDoJ’s pressure to rush anti-terrorism measures through, Congress neither closely examined these proposals nor adequately challenged the USDoJ’s assurances that they are constitutional. History teaches us that granting law enforcement agencies broad new powers during times of national crisis typically yields poor results. U.S. citizens have allowed the balance of individual liberties and privacy rights to tip precipitously in favor of the federal government’s campaign to stop terrorists at any and all costs. With America’s ever growing reliance on electronic communication, historians may view the implementation of the USA Act as the moment Big Brother truly started policing the conversations of every American.






  • MyGovCost.org
  • FDAReview.org
  • OnPower.org
  • elindependent.org