Despite growing opposition, U.S. Attorney General John Ashcroft last week completed his public relations road show to defend the expanded police powers found in the USA Patriot Act, which was signed into law two years ago. At the same time, the White House came out in favor of a movement to further expand the governments domestic spying capabilities.
While legal posturing continues, network operators are left bearing the burden of stepped-up subpoenas and wiretap orders that were enabled by a law enacted in the wake of the Sept. 11, 2001, terrorist attacks.
Saying they were making the United States safer, Ashcroft praised USA Patriot provisions such as the ability to force ISPs to turn over customer identities, billing records, session times, sources of payment and temporarily assigned addresses. Under the law, the FBI can demand records from businesses, health care facilities and universities by obtaining an order from the special Foreign Intelligence Surveillance Act court by claiming that the data is relevant to an international terrorism investigation.
For ISPs, the burden of complying depends on the size and type of the operation, but it costs the average provider about $100 to identify a customer in compliance with a subpoena. That includes labor and legal costs, said David McClure, president and CEO of the U.S. Internet Industry Association.
"Most ISPs run fairly lean on staff," said McClure, in Washington. "Even though youre being compensated, youre being compensated at a level that probably doesnt represent lost business time."
Also as part of the act, law enforcement can capture any communications of an intelligence subject without targeting a specific telephone line or computer, and third-party providers—such as universities—are forbidden to disclose that users were monitored.
"We have to adapt to the technology and tactics of the terrorists," Ashcroft said during a stop here last week. "Americans rightfully expect that the tools used for decades to fight organized crime will be used to fight terror."
Many legal experts say Ashcrofts argument fails to consider the way the powers could be misused.
"For certain provisions, the government could do everything before that they can do now. The difference is the powers used to be in the hands of the judiciary, and now theyre transferred to the executive branch, which is extremely dangerous," said Mark Rasch, a former U.S. attorney who is now chief security counsel at Solutionary Inc., based in Omaha, Neb.
Rep. Butch Otter, R-Idaho, is working on additional USA Patriot rollbacks, including repealing expanded surveillance powers in July 2004, a year before they are scheduled to begin expiring. Otter is also seeking to raise the bar for secret surveillance and obtaining private records, such as medical files and reading habits, an aide said.
Still, President Bush last week announced that he supports a Justice Department request to further expand surveillance powers. And proposed legislation drafted by Sen. Orrin Hatch, R-Utah, would authorize administrative subpoenas, ensuring a tug of war between police powers and civil liberties on Capitol Hill.