Fw: Policy Post 7.11: Anti-Terrorism Legislation Gutting Privacy Standar

----- Original Message -----
From: "Michael Clark" <mclark@cdt.org>
To: <dennis.blewitt@lawyernet.com>
Sent: Friday, October 26, 2001 4:11 PM
Subject: Policy Post 7.11: Anti-Terrorism Legislation Gutting Privacy
Standards Becomes Law


> CDT POLICY POST Volume 7, Number 11, October 26, 2001
>
> A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL
> LIBERTIES ONLINE
> from
> THE CENTER FOR DEMOCRACY AND TECHNOLOGY
>
> CONTENTS:
> (1) Anti-Terrorism Legislation Gutting Privacy Standards Becomes
> Law
> (2) Provisions Take Effect Immediately; Some "Sunset" in 2005
> (3) New Law Requires Close Oversight; Other Civil Liberties Issues
> Loom
>
> ______________________________________________________
> ___
>
> (1)  ANTI-TERRORISM LEGISLATION GUTTING PRIVACY
> STANDARDS BECOMES LAW
>
> President Bush on October 26 signed into law an anti-terrorism
> package that dismantles many privacy protections for
> communications and personal data.   Many of the provisions are not
> limited to terrorism investigations, but apply to all criminal or
> intelligence investigations.
>
> This bill has been called a compromise but the only thing
> compromised is our civil liberties.
>
> The bill:
>
> * Allows government agents to collect undefined new information
> about Web browsing and e-mail without meaningful judicial review;
>
> * Allow Internet Service Providers, universities, network
> administrators to authorize surveillance of "computer trespassers"
> without a judicial order;
>
> * Overrides existing state and federal privacy laws, allowing FBI to
> compel disclosure of any kind of records, including sensitive
> medical, educational and library borrowing records, upon the mere
> claim that they are connected with an intelligence investigation;
>
> * Allows law enforcement agencies to search homes and offices
> without notifying the owner for days or weeks after, not only in
> terrorism cases, but in all cases - the so-called "sneak and peek"
> authority;
>
> * Allows FBI to share with the CIA information collected in the name of
> a grand jury, thereby giving the CIA the domestic subpoena powers it
> was never supposed to have;
>
> *  Allows FBI to conduct wiretaps and secret searches in criminal
> cases using the lower standards previously used only for the
> purpose of collecting foreign intelligence.
>
> The text of the legislation and analyses by CDT and others are online
> at http://www.cdt.org/security/010911response.shtml
> ______________________________________________________
> _______________
>
> (2)  PROVISIONS TAKE EFFECT IMMEDIATELY; SOME "SUNSET" IN
> 2005
>
> As passed, some of the surveillance provisions expire, or "sunset," in
> four years unless renewed by Congress.   In four years, before any
> extension of the provisions, CDT hopes that there will be a
> Congressional review that will involve the deliberative balancing of
> civil liberties and national security that was lacking from the current
> debate.
>
> CDT made it clear throughout the debate that terrorism was a
> serious problem, that the U.S. counter-terrorism effort had failed on
> September 11, and that changes to government security programs
> were needed.  What is doubly distressing about the new law is that it
> was enacted without any examination of why existing authorities
> failed to prevent the September 11 attacks.
>
> It is our greatest concern that the changes will be worse than
> ineffective - that, by cutting government agencies loose from
> standards and judicial controls, they will result in the government
> casting an even wider net, collecting more information on innocent
> people, information that distracts the government from the task of
> identifying those who are planning future attacks.
>
> The sunset provision does not apply to the sharing of grand jury
> information with the CIA, giving the CIA permanent benefit of the
> grand jury powers.  Nor does it apply to the provisions for sneak and
> peek searches or  the provision extending application of the pen
> register and trap and trace law to the Internet.
>
> The sunset also does not apply to ongoing investigations.  Since
> intelligence investigations often run for years, even decades, the
> authorities will continue to be used even if they are not formally
> extended in 2005.
> ______________________________________________________
> _____________
>
> (3)  NEW LAW REQUIRES CLOSE OVERSIGHT; OTHER CIVIL
> LIBERTIES ISSUES LOOM
>
> Many threats to civil liberties loom in the short and mid-term. CDT is
> planning a series of efforts to monitor implementation of the new law
> as well as to counter additional efforts to erode privacy and other civil
> liberties:
>
> *  CDT is calling upon Congress to exercise its oversight powers to
> conduct a probing and sustained review of how the new law is
> interpreted and applied.  To that end, CDT will be working, through its
> Digital Privacy and Security Working Group, to share information
> among affected members of the telecommunications and Internet
> industry and other civil liberties groups.  The co-chairs of the
> Congressional Internet Caucus have asked CDT to use DPSWG and
> the Internet Caucus Advisory Committee to examine the new law and
> future proposals.
>
> *  The FBI may be pushing for extension to the Internet of the
> Communications Assistance for Law Enforcement Act, the 1994 law
> requiring telecommunications carriers -- but not providers of
> information services -- to build surveillance capabilities into their
> networks.  Implementing CALEA in the traditional and wireless
> telephone networks has proven extremely contentious.  Extending it
> to the Internet could have even worse consequences for network
> operations and security.
>
> *  CALEA for the Internet is only one shape that design mandates
> may take.  European governments have been particularly aggressive
> in pushing data retention requirements -- rules requiring ISPs and
> others to maintain logs of all communications for a period of months.
> The issue of critical infrastructure protection also could serve as a
> vehicle for government controls on technology.
>
> *  Calls have been made for a national ID card.  In addition to the civil
> liberties implications of hard copy identity cards, the concept poses
> additional risks if extended to the Internet.  Several bills have been
> introduced or are being drafted calling for greater use of biometrics at
> the borders and in other contexts.
>
> *  Encryption is not entirely off the agenda.  While Senator Judd Gregg
> pulled back from his announced intent to introduce mandatory key
> recovery legislation, the issue may return.
>
> *  At the behest of the new cyber-security czar, NSC official Richard
> Clarke, the Bush Administration issued a Request for Information
> (RFI) to the U.S. telecommunications industry seeking information
> and suggestions for the development of a special
> telecommunications network, separate from the Internet.   The
> proposal's impact on e-government and citizen access to information
> is unclear, and it raises questions about the lack of government
> confidence in, and commitment to, the Internet.
>
> ____________________________________________________
>
> Detailed information about online civil liberties issues may be found
> at
> http://www.cdt.org/.
>
> This document may be redistributed freely in full or linked to
> http://www.cdt.org/publications/pp_7.11.shtml
>
> Excerpts may be re-posted with prior permission of ari@cdt.org
>
> Policy Post 7.11 Copyright 2001 Center for Democracy and
> Technology
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