IP: RE: Senate votes to permit warrantless Net-wiretaps, Carn

[Declan McCullagh]

ivore us e
Cc: "Albertazzie, Sally" <SAlbertazzie at steptoe.com>
To: "Baker, Stewart" <SBaker at steptoe.com>, farber at cis.upenn.edu, 
ip-sub-1 at majordomo.pobox.com
Subject: RE: IP: RE: Senate votes to permit warrantless Net-wiretaps, Carn 
ivore us e
Cc: "Albertazzie, Sally" <SAlbertazzie at steptoe.com>

Stu,

Maybe you're right. Maybe this expansion of warrantless surveillance powers 
is unobjectionable. Maybe the FBI and the state law enforcement agencies 
that will be able to legally use Carnivore without a court order in some 
circumstances will prove entirely trustworthy. Maybe they truly do need 
this power in emergencies. Maybe it'll even stop some terrorists. Maybe 
you're correct to say, "What's the big deal?"

But let's have that discussion in public, during daylight hours, in a 
hearing room where reasoned conversation can take place. Let's ask the FBI 
director and the attorney general to testify, and let's invite 
representatives from groups like the ACLU, CDT and EPIC to join them. Let's 
allow senators to ask the bill's sponsors tough questions about what this 
oddly-written legislation really does. And let's give them as much time as 
they need to answer.

What we shouldn't do is rush substantial rewrites of wiretapping law 
through the Senate in the middle of the night, just two days after the 
worst terrorist attack ever, when the country is in the throes of a 
national emergency. What we shouldn't do is have the legislation's sponsors 
-- and I don't doubt that they have the best of intentions -- hand it to 
their fellow senators just 30 minutes or so before a vote, which is what 
reportedly happened Thursday night.

Stu, you've worked both in the government and in the private sector. You've 
studied wiretap law more closely than nearly anyone else. You know how it 
works. But would most senators know offhand what expanding wiretapping to 
include "any criminal violation of sections 2332, 2332a, 2332b, 2332d, 
2339A, or 2339B" means?

This is what Senator Patrick Leahy of Vermont, the chairman of the 
Judiciary committee and a former prosecutor, said during the floor debate: 
"Do we really show respect to the American people by slapping something 
together, something that nobody on the floor can explain, and say we are 
changing the duties of the Attorney General, the Director of the CIA, the 
U.S. attorneys, we are going to change your rights as Americans, your 
rights to privacy? We are going to do it with no hearings, no debate. We 
are going to do it with numbers on a page that nobody can understand."

Senator Carl Levin of Michigan said he had no time to read what he was 
being asked to vote on, adding that he had been told the bill was merely an 
anti-terrorism measure but it seemed to do far more: "I am trying to 
understand what is in it since it came to me for the first time tonight. I 
want to be very clear, at least the way I read this, that this is not 
something that is just limited to counterterrorism, about which I think all 
of us would have a passion."

The spending bill to which the wiretap legislation ("Combating Terrorism 
Act of 2001") was attached will have to go to conference committee and 
then, probably, both chambers of Congress for another vote. That process 
means the bill won't become law for weeks at best. During that time, 
Congress could have held at least one hearing on the bill; in fact, Leahy 
said he would have done so immediately. If the bill is so vital to our 
national security, couldn't it survive a straight up-or-down floor vote, 
rather than be attached to a massive must-pass appropriations bill for the 
Justice, Commerce, and State departments?

As a side note, even if you believe the language to be unobjectionable, 
Senate Judiciary committee aides told me they believe the wording of the 
bill -- apparently hastily-drafted, complete with typos -- may cover the 
content of communications, not just origin-desination information. If 
they're not sure, and they had a full day to read it by the time I spoke 
with them Friday, how can you be so positive your interpretation is 
correct? Even if you're right, doesn't it make sense to double-check?

During the next few months and years, we may see calls for restricting the 
freedoms Americans have enjoyed as a way to respond to and thwart 
terrorists. Many of these new laws and regulations are unobjectionable; I 
don't mind tighter temporary security around government buildings and 
airports. But others are more deserving of enlightened discussion and 
debate. Let's hope that happens, not in the darkness of midnight votes, but 
in public in the light of day.

-Declan

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