Congress is being asked to rush to pass emergency antiterrorist legislation written by the Department of Justice. House Committee hearings are scheduled for Friday, Senate hearings for Tuesday, and the DOJ is demanding the bill be enacted by the end of the week. It would be a serious mistake for Congress leaders to force this legislation into law without careful scrutiny, because much of the legislation turns out to have nothing to do with fighting terrorism. Instead, the legislation contains a host of items which have been on bureaucratic wish lists for many years.
As we strongly support Attorney General Ashcroft and his staff in performing their executive-branch duties, Congress must remain faithful to its own duties, which is to make laws carefully and correctly.
Before voting for any bill — and especially for a bill on a fast-forward agenda — congressmen have an obligation to read the bill. When they read the proposed new DOJ bill, they will find much that is unnecessary, and more that is a serious threat to the Bill of Rights.
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A congressional statute formalizes federal use of pen registers, and requires judges to issue pen-register orders under a “rubber stamp” standard. The judge must issue the order whenever a U.S. Attorney requests an order. Pen registers and trap and trace devices are much more common than wiretaps. Last year, there were about 5,000 such devices used on Americans by federal law enforcement.
The DOJ bill would expand pen-register/trap-and-trace power to include surveillance of Internet surfing and of e-mail. (A similar measure was included in a bill hastily passed by the Senate on September 12, with hardly any discussion.) This means that the FBI, the BATF, the DEA, the INS, or any other federal law-enforcement agency could — without a search warrant — survey a citizen's e-mail and his web surfing. The web surveillance can include every URL that the person visits, and also includes (by virtue of including URLs created by search engines) the key words of every search the person submits. (ed. emphasis added) The e-mail surveillance would not include the text of messages, but would include the to/from information, as well as the subject line of a message, and also the size of the message.
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The Center for Democracy and Technology has identified many more problems (PDF file) with the bill, in addition to the ones detailed in this article. Plainly, this is a very flawed bill that cannot be fixed with an amendment or two. [Privacy Digest]