Seattle Press on Line - Surveillance and Freedom in the Wake of the WTC Attack

Law & Technology

Law & Technology

Surveillance and Freedom in the Wake of the WTC Attack

Sep 27, 2001 -- One of the unique and best aspects of our society is that it is an open one. American citizens are often shocked at some of the powers that some repressive societies have over their citizens. Our society is poised to either continue to embrace the freedoms guaranteed by our Constitution and Bill of Rights, or institute some of the "fixes" enacted by repressive governments. I hope we continue to embrace the former.

Since the terrorist attack on the WTC last week, politicians and law enforcement have called for vastly increased powers of surveillance over American citizens. These proposals include very broad abilities to tap phones and to wiretap the Internet.

House Minority Leader Richard Gephardt said "We are going to have to change the balance between freedom and security." Rather than accept blindly the notion that increased surveillance will protect us fully from terrorism, what we need to do right now is to discuss and debate rationally and carefully how to strengthen our laws without diminishing our civil liberties.

Instead of a reasoned approach, what I've seen over the last week in the press is a lot of name calling, from "McCarthyism" on one side, to "terrorist-lover" on the other. This is not a productive way to proceed after the emotional trauma of last week.

Surveillance (and the illusion of safety it brings) is only one of many concerns, but it is the one I will focus on today. In this week's column I'll try to point out some of the flaws I see in the proposed legislation, particularly the use of Carnivore/Echelon systems.

Carnivore, or the more innocuous label "DCS1000" that the FBI favors, is a device used domestically to wiretap communications on the Internet. When put in place at an Internet Service Provider (ISP), Carnivore is capable of monitoring and transmitting all email messages and all web sites visited by individuals who use that particular ISP to law enforcement.

Controlled by the National Security Agency (NSA), and operated in conjunction with the U.K., Canada, Australia and New Zealand, the elusive Echelon system was created to monitor and collect electronic communications world-wide. The NSA routinely denies the existence of Echelon, but enough indirect evidence has come to light to convince many governments that it does exist and that it uses key-word matching to flag suspicious emails.

Surveillance

Three areas where significant new surveillance is being proposed--all included in legislation being rushed through Congress--are deployment of Carnivore systems, an expansion of telephone-tapping laws when applied to the Internet, and use of information gathered by Echelon (as well as information gathered by foreign governments) against U.S. citizens. In certain circumstances, all of these could take place at the request of any US attorney--that is, without a court order.

As mentioned, Carnivore systems are attached at the ISP and filter all Net traffic that routes through the ISP. It is capable of tracking all routing information as well as content of communications. Theoretically, any information sent by the individual being investigated would be captured while messages and web requests of innocents would be discarded; however, since no unbiased review of Carnivore has been allowed, nobody knows for sure. Another glaring problem with Carnivore is the question of the types of search warrant (if any) that are required for particular types of information.
Another proposal would allow the capture of the header of an email message using the "trap and trace" warrant, which is easier to obtain than a warrant to capture actual conversations. When telephones are tapped today using a trap and trace warrant, only telephone numbers are collected--but the header of an email message is arguably close to a conversation. For example, a header could read: "Going to Dr. office now, be home later." Why is the Net being treated differently? Making a distinction between phones and the Net doesn't protect anybody in this case (just get a warrant!) and harms both the First and Fourth Amendments on the Net.

Yet another section of the proposed legislation authorizes the NSA's Echelon system to be used against US citizens for the first time ever. The NSA has, until now, been prohibited from spying on US citizens. According to the Justice Department's analysis of the bill, information gathered on Americans by Echelon and from other electronic surveillance by foreign governments could be used against Americans, even if the information collection process would have violated the Fourth Amendment. This should give us great pause.

All of these proposals are included in the most important immediate bill in this area, the Mobilization Against Terrorism Act (MATA). The text of the MATA only became available late last week; by the time you read this, it may already have passed--Attorney General Ashcroft hoped to have MATA in place by last weekend. This proposal should be debated much more fully before enactment than this small amount of time would permit; as written, it encroaches significantly into our civil liberties with little judicial oversight. [See CDT, www.cdt.org, or EFF, www.eff.org, for the full text and analysis of this bill, and the also-important Combatting Terrorism Act (CTA) bill.]

What you can do

Future articles will often end with a "what you can do" section, as does this one.

Contact your representatives and urge them not to let terrorism and the threat of terrorism shred our constitutional freedoms.

Endorse the statement "In Defense of Freedom." The statement is a ten point statement that asks our legislators to protect civil liberties as they try to craft legislation to help prevent future acts of terrorism. It has been signed by more than 150 organizations spanning the political spectrum, 300 law professors and 40 computer scientists. The statement can be found at www.epic.org.

Reader Comments

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Holly	Dec 08, 2002	New York	college student
I did a persuasive speech recently on this topic and I was very surprised with what I found out about the USA Patriot Act and what it means for American citizens. My class was also very shocked to hear much of the information that I presented. It seems that many Americans have heard of what this act is, but they may not even know what it means. I believe that the government hasn't exactly hidden what the Act is about, but they haven't exactly educated the public about it either. I definitely believe after my research that the government agencies have been given way too much power and that we as American citizens need to defend our rights.


Billybobjojo	Feb 25, 2003	texas	trashman
im stuupit and phat and im gaonna sew you guys for hurting my liver


AnGeL	Jul 09, 2003	MA	Student
Surveillance, tapping our phones and comps...what will the government resort to next to keep tabs on us and whatnot..ergh...what's sad is this could already be going on and the majority of the population wouldn't have a clue..heh...nice world we live in...