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Key lawmakers made it clear Tuesday that the path championed by the Department of Justice for increased Internet surveillance wont be a smooth one.
Appearing before the Senate Judiciary Committee Tuesday, Attorney General John Ashcroft, who earlier had urged lawmakers to pass the legislation by the end of last week, continued to press for accelerated congressional action, saying that “until Congress makes these changes, we are fighting an unnecessarily uphill battle.”
“Technology has dramatically outpaced our statutes,” he told committee members. “Law enforcement tools created decades ago were crafted for rotary phones, not e-mail or the Internet or mobile communications and voice-mail. Every day that passes with outdated statutes and the old rules of engagement is a day that terrorists have a competitive advantage.”
But other lawmakers, including the chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., said the proposal, which clearly would tinker with the balance between civil liberties for citizens and surveillance capabilities by authorities, needs “weeks and months” of debate.
Ashcroft gave similar testimony Monday afternoon before the House Judiciary Committee, where the chairman of the committee, Rep. James Sensenbrenner, R-Wis., unexpectedly canceled a markup on the legislation he had scheduled for Tuesday after committee members from both parties expressed misgivings about the scope of the department legislative package. At that hearing, lawmakers said the proposal was too complex and sweeping to be rushed into law.
The two days of hearings featuring the Attorney General made it clear that the prospects for a quick congressional rubber stamp — along the lines of what Congress voted on for the airline industry and for rebuilding New York and fighting terrorism shortly after the attacks occurred — were swiftly diminishing.
Among other things, the bill would give authorities the ability to snoop on e-mail communications and Web surfing with more ease and greater stealth. It would also permit authorities more flexibility in using relatively loose rules for collecting foreign intelligence for the pursuit of domestic intelligence.
Civil liberties advocates across the political spectrum formed a coalition called In Defense of Freedom last week aimed at stopping Congress from passing legislation that would erode civil liberties in the name of terrorism.
Senators from both parties grilled Ashcroft during Tuesdays packed hearing. Sen. Charles Grassley, R-Iowa, wanted more details about how the department would treat e-mail information. Among the questions asked: Would the new rules let the department freely seize the contents of the e-mails, as well as the routing information? Ashcroft assured Grassley that for what are called “trap and trace” and “pen register” orders, the department would seek only routing information, such as to who the e-mail was sent to and who sent it. Content within the subject line or within the e-mail itself would be inaccessible under the relatively lax rules surrounding pen registers and trap and trace orders. As in telephone calls, content would be accessible only with a Title 3 order, which requires law enforcement officials to demonstrate to a federal judge that there is probable cause that the e-mails contain incriminating evidence.
Leahy voiced similar concerns.
Sen. Orrin Hatch, R-Utah, on the other hand, said the committee should move fast to pass the department proposal in its full.
“Electronic surveillance, conducted under the supervision of a federal judge, is one of the most powerful tools at the disposal of our law enforcement community,” he said. “It is simply unfortunate that the laws currently on the books which govern such surveillance were enacted before the fax machine came into common usage, and well before the advent of cellular telephones, e-mail and instant messaging. All of these modern modes of communications we now know were principal tools used by the terrorists to coordinate their deadly attacks.”
He added: “The Department of Justice has asked us for years to update these laws to reflect the new technologies, but there has always been a reason to go slow, to seek more information, to order further studies. We simply cannot afford to wait anymore.”
The document is clearly fluid right now. During Mondays hearing, several issues codified in last weeks version of the bill had been excised during negotiations between the two parties over the bill, although many were not aware of the changes. Witnesses testifying against parts of last weeks version were notified about the changes in the middle of their testimony.