[iwar] [fc:Wiretap.Bill.Gets.Third.Degree]

From: Fred Cohen (fc@all.net)
Date: 2001-09-26 12:00:36

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From: Fred Cohen <fc@all.net>
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Date: Wed, 26 Sep 2001 12:00:36 -0700 (PDT)
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Subject: [iwar] [fc:Wiretap.Bill.Gets.Third.Degree]
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Wiretap Bill Gets Third Degree
By Declan McCullagh

2:00 a.m. Sep. 26, 2001 PDT

WASHINGTON -- President Bush's proposal to permit Internet surveillance
without a court order drew sharp questions from senators on Tuesday. 

Members of the Senate Judiciary committee appeared divided over whether
the Mobilization Against Terrorism Act (MATA), which the Justice
Department sent to Congress this week, was a vital anti-terrorism
measure or an infringement of privacy. 

It wasn't a partisan split: Left-leaning Dianne Feinstein of California
and conservative icon Chuck Grassley of Iowa both wondered during
Tuesday's hearing whether the administration's bill could be reworked --
just a bit -- to resolve some of their worries. 

Feinstein suggested that MATA could be temporary: "What if we had a
sunset on them of five years? Some of these sections, on technology and
wiretaps, a five-year sunset to make sure they haven't been abused."

Ironically, Feinstein co-sponsored a similar bill this month, called the
Combating Terrorism Act of 2001, that also expands FBI wiretapping
powers -- and does not include an expiration date.  The Senate
unanimously approved that measure on Sept.  13, just two days after the
bloody attacks on the World Trade Center and the Pentagon. 

Replied Attorney General John Ashcroft, the only witness to testify: "We
would then run the risk of having these rules expire at a time when we
would need them.  If I believed terrorism would sunset in five years, I
would agree to that.  We need to err on the side of having tools
available."

Grassley zeroed in on the section of MATA that permits prosecutors to
authorize online surveillance -- using, for instance, the FBI's
Carnivore system -- for 48-hour periods without a judge's approval. 
Current law allows police to record the numbers of incoming and outgoing
phone calls in certain situations, and Ashcroft said MATA would extend
that rule to the Internet world by allowing the interception of e-mail
headers and addresses of websites visited. 

"Some of that information contains some information about what the mail
contains," Grassley said.  "Wouldn't you be going farther?"

In his response, Ashcroft said he believed "To:" and "From:" lines of
e-mail could be intercepted without a court order, but "Subject:" lines
would require a judge's signature.  "We're not asking that we get
content or the subject," he replied.  "We want information on who sent
it and to whom it was sent."

It's too early to predict what the judiciary committee will do: A vote
on MATA is scheduled for next week, and chairman Patrick Leahy
(D-Vermont) is still meeting with Bush administration officials to try
to craft a compromise bill.  Besides, it's easy to criticize a bill in a
hearing, but more difficult to vote against a measure viewed as a way to
prevent a repeat of the Sept.  11 attacks. 

On the other side is another bipartisan team: Orrin Hatch, a Utah
Republican and former chairman, and New York Democrat Chuck Schumer. 
Both said that Americans have no reasonable expectation of privacy in
the identities of their e-mail correspondents, or the addresses of Web
pages they visit. 

"No reasonable expectation of privacy exists," said Hatch, who has
previously sponsored a related measure.  "Your legislation would make it
clear what the court has already held."

In the hallway after the hearing, Schumer told reporters there should be
no "expectation of privacy" -- which would trigger additional legal
requirements for prosecutors to follow -- in e-mail header and Web
address information. 

On Monday, the House Judiciary committee held a hearing during which
legislators urged caution before rewriting immigration and wiretap laws. 

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