Antiterrorism Bill: Security Trumps Privacy

Netizens will lose some of their privacy rights and businesses will find it harder to curb the snooping appetites of authorities under antiterrorism legislation that Congress expects to send to the president next week.

Netizens will lose some of their privacy rights and businesses will find it harder to curb the snooping appetites of authorities under antiterrorism legislation that Congress expects to send to the president next week.

After nearly a month of tense negotiations and high-wire political gamesmanship, the House and Senate late this week passed similar but separate versions of a Department of Justice package that would loosen federal wiretap laws and give authorities greater cybersurveillance powers.

Congressional leaders expected to have a compromise version ready for the president next week.

The final product will likely resemble the version passed by the Senate. That bill covers a wide range of antiterrorism measures, from immigration to money laundering to wiretapping. For the Internet, the bill:

  • Lets authorities collect unspecified, undefined information about Web browsing and e-mail, without the involvement of a judge.
  • Allows universities and network administrators, among others, to authorize surveillance without any judicial review.
  • Enables authorities to get "roving wiretaps," which would let them snoop on people from phone to phone and from computer to computer, even if a suspect wasnt in control of the device; the provision could, for example, let the government tap all computers in a library, if a suspect were using one of them.
  • Lets criminal wiretaps, including those for the Internet, be conducted under the lower standards of foreign intelligence gathering; no probable cause would be required.
  • Overrides existing privacy laws for sensitive categories of records, including medical records.

Civil libertarians and Internet businesses are particularly concerned that the provision gives authorities access to Web browsing and e-mail information without judicial review. Computer communications would be subject to the same rules girding pen registers and trap-and-trace devices used to capture the incoming and outgoing phone numbers of criminal suspects. Pen registers and trap-and-trace orders are rubber-stamped by authorities. If officials want to capture the content of phone conversations, however, they must prove probable cause of a crime to a judge.

Web Trail Seen as Content

Civil liberties advocates maintain that the paths of visited URLs and e-mail subject lines, which could be captured by authorities under the new law, are much more revealing about people than phone numbers, and in fact, constitute content. As content, it should be much harder for authorities to be able to snoop on most computer communications, they argue.

Internet businesses are also concerned about the related liability issues. If they are required to hand over more personal information about people, they say, they need assurances that they wont suddenly be opened up to new lawsuits.

"Most in the Internet industry are very worried about several provisions, which go to the practical realities of compliance," said Kevin McGuiness, executive director of, an Internet industry trade group. "They want to make sure their legal risks dont increase because of their compliance."

The Senate passed its bill late Thursday, Oct. 11, and adjourned for the weekend. House lawmakers "worked late into the night and then started early the next morning," changing their bill to nearly mirror the Senate bill, a House Committee on the Judiciary spokesman said.

The Senates late approval and subsequent departure infuriated House lawmakers, especially members of the Judiciary Committee, who had spent nearly a month toiling over the nitty-gritty of a bill that members believed best balanced the need for greater surveillance powers by authorities while protecting citizens civil liberties. The Bush administration favored the Senate bill because it hewed closer to the administrations more spy-friendly desires.

"Why should we care?" asked Rep. David Obey, D-Wis., during volatile debate about the hastily revised bill. "Its only the Constitution; its only individual liberty at stake."

One key sticking point between the houses has been whether the surveillance powers should be extended for only a specified time. The Senate has no so-called "sunset" provision on its bill. The House, however, wants the expanded surveillance powers to expire in three to five years.