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.”
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The DSEA draft, which the Center for Public Integrity obtained and distributed, has never been officially released by Ashcrofts office.
Another provision in the draft seeks to expand surveillance powers generally, raising worries that snooping technologies such as Carnivore and the Pentagons Total Information Awareness Program would be used against U.S. citizens. In passing the Patriot Act, Congress gave the government power to obtain detailed information about an Internet users communications via a low standard of judicial review, but when it came to U.S. citizens, the new power could be used only in terrorism or counterintelligence investigations. Less than two years later, the Justice Departments proposal asks Congress to eliminate that limitation.
The DSEA would also broaden the scope of surveillance warrants and enhance the governments ability to monitor multifunction devices, such as PDAs. If the government could show probable cause that one type of communications is relevant to a crime, it would receive automatic approval to access other types of communications over the same device. For example, a warrant to listen to a persons telephone conversations would automatically authorize monitoring of the persons e-mail or faxes transmitted over the same device; a warrant to intercept e-mail or voice communications over a computer would also authorize seizing data stored on its hard drive.
Under the proposal, individuals using multifunction devices forgo privacy protections that they would receive using less advanced communications technologies. Privacy rights defenders charge that the proposal follows a trend within law enforcement to take advantage of technology to pare back privacy standards.
One of the more alarming provisions to privacy rights advocates is the establishment of a national DNA registry of terrorism suspects.
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