Roving wiretap power OK'd Analysis: Congress granted law enforcers more authority to monitor your electronic communications.

October 19, 1998|By Dan Gillmor | Dan Gillmor,KNIGHT RIDDER/TRIBUNE

It was, to paraphrase one commentator's apt reaction, a sneak attack on liberty.

Earlier this month, in the legislative dead of night, Congress gave law enforcement unprecedented new power to wiretap your communications.

You can argue whether this particular expansion of wiretapping authority, called the "roving wiretap" in law-enforcement circles, is a good or bad idea. However you feel about it, you should be outraged that a few members of Congress, cowed by the FBI and indifferent to your privacy, sneaked this provision without debate or voting on its merits.

Before I explain how underhandedly these lawmakers gave the FBI one of its wish-list gifts - a bill that Congress had previously rejected in an open vote - you should understand why it deals a blow to some fundamental notions of privacy and liberty.

When I said law enforcement could gain additional power to tap your communications, that's exactly what I meant: your phone, your computer, your cell phone. If President Clinton signs this bill, you won't have to be a criminal suspect anymore to be wiretapped. You won't even have to know the suspect. If someone under surveillance visits your home or business, any communications device there will be subject to wiretapping, too - even if the suspect doesn't intend to use it, says James Dempsey, senior staff council of the Center for Democracy and Technology, a Washington-based advocacy group.

Roving wiretaps have been allowed for more than a decade, but under extremely limited circumstances, Dempsey notes. The new law would drastically expand what is allowed today, he explains, by loosening standards for obtaining these taps, and by expanding the reach to include all nearby communications.

Imagine what the likes of Kenneth W. Starr would do with such power - not that you can expect any consideration from the Clinton administration, easily the most hostile to civil liberties since Richard Nixon ran the government.

Contrary to the FBI's spinmeistering, which is nearly indistinguishable from outright lying, this would be a dramatic expansion of today's wiretapping law. And it would shred one of the few remaining protections under the Constitution's Fourth Amendment, which once upon a time shielded us from unreasonable searches and seizures.

Even if you think this new authority is hunky-dory, the way it came about - what the Electronic Frontier Foundation's Stanton McCandlish called a "sneak attack on privacy" - should raise the hair on the back of your neck. Sneak attacks can come from all directions, not just from your own side.

Here's what happened:

The House of Representatives and Senate separately passed "intelligence authorization" legislation. This routine annual bill details Congress' expectations for intelligence services including the CIA, National Security Agency and other such organizations for the coming year. As usual, differences between the two bills led to a conference committee, in which members of both houses of Congress reconciled their differences; the bill then went back to both chambers for a final vote before it went off to the White House for the president's signature.

This time, members of the conference committee - made up primarily of people who lean strongly toward law enforcement and care little about civil liberties - added something that hadn't been in either bill that originally came out of the House or Senate: the roving-wiretap provision. It wasn't in the original bills because neither the House nor the Senate had any appetite for the provision on its own.

In fact, the full House rejected roving wiretaps two years ago. This year, the idea had so little support that its proponents didn't even bother to try to get it through hearings, much less a vote, in the House Judiciary Committee, where it would have been subject to serious challenges by members who still care about individual liberty.

When the intelligence-agency authorization legislation came back to the floors of the House and Senate, it was no longer subject to amendment, according to congressional rules. The full bodies had to pass the entire bill - a much more comprehensive bill with many worthy provisions - or turn it down. As the roving-wiretap backers expected, both houses passed the law.

The wiretap legislation isn't the only liberty-loathing garbage coming out of this Congress, which is poised to pass a new version of the Communications Decency Act. That's the measure designed to ensure that the Internet won't contain anything that might be inappropriate for children, thereby making the Internet appropriate only for children. Politicians rue their public image. Sometimes they have a right to feel that way. Despite their miscues, most try to serve in the public interest, and they mostly try to live up to an oath of office that includes a promise to defend the Constitution, of which the Bill of Rights may be the most important part.

The roving-wiretap law, which invites abuse by law enforcement, shoots yet another hole in the Bill of Rights. By behaving like thieves in the night, Congress has richly earned its occasionally unsavory image - and our contempt.

Pub Date: 10/19/98

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