Seizing the Moment

With the backdrop of war, the Justice Department eyes more stringent electronic policing.

As the United States began military attacks on Iraq last week, fears rose at home that the heat of war could pressure Congress to enact new technology-driven domestic police powers without thorough debate or review.

Officials at the FBI and other parts of the Department of Justice have been drafting a sequel to the USA Patriot Act—passed in the wake of the Sept. 11, 2001, terrorist attacks—authorizing broad new law enforcement powers. The proposed DSEA (Domestic Security Enhancement Act), drafted by the Justice Department, represents a law enforcement wish list with several items Congress has debated and rejected in peacetime.

Lawmakers, meanwhile, this week will meet in committee to discuss homeland security issues. The Senate Subcommittee on Technology, Terrorism and Homeland Security scheduled the hearing to examine technological issues in protecting the country. Observers say several members of Congress who criticized the harried passage of the Patriot Act are likely now to strive to restore liberties that were pared back.

As written, the DSEA would enhance government power to eavesdrop on communications over multifunction devices, establish a national DNA database of broadly defined "suspected terrorists" and add a minimum of five years to criminal sentences for knowingly using encryption technology while committing a crime, according to a draft.

In the draft, someone convicted of a computer-related crime would incur a longer sentence if encryption were used to commit the crime. Industry experts are concerned that such a provision could create a disincentive for computer users generally to use common safe-computing measures.

"If you do what everybody is supposed to do as a matter of course and if you do it in connection with a crime, then youre worse off than if you didnt follow the [standard computing] rules as a matter of course," said Jim Dempsey, executive director of the Center for Democracy and Technology, in Washington.

In another area of the draft, in a somewhat vaguely worded provision, the Justice Department intimates that software makers and ISPs potentially "should give law enforcement access to keys for the purpose of decoding intercepted communications." Turning over the encryption codes for an ISPs wireless data network would greatly expand the governments surveillance powers, said Mark Bayliss, CEO of Visual Link Communications Inc., an ISP in Winchester, Va.

"Handing over WAP [Wireless Application Protocol] keys would let them monitor entire networks," Bayliss said. "If they asked for access to one persons communications, they would then be able to have access to the entire network. It would be more like Carnivore."

Sen. Patrick Leahy, D-Vt.—who is sponsoring a bill to restore some of the Freedom of Information Act rights weakened by the Patriot Act—criticized U.S. Attorney General John Ashcrofts Justice Department for drafting anti-terrorism legislation in secret and without bipartisan support. Through a spokesman, Ashcroft responded that it "should not be surprising that the Department of Justice takes [its] responsibility seriously and discussed additional tools to protect the American people."