It's the little things that count. While some privacy advocates cry foul
over the section in Attorney General John Ashcroft's draft antiterrorism bill
that extends certain wiretapping provisions to the Internet, an equally ominous
challenge to civil liberties lurks in an innocent one-word change. In Section 153
of the proposed legislation presented to Congress on September 19, the word the
would be changed to a.
Amazing what a difference an indefinite article makes.
"This is an attempt to destroy the distinction between criminal investigation
and foreign intelligence," says Morton Halperin, a senior fellow at the Council
on Foreign Relations and former director of the ACLU's Center for National
Security Studies. "It's something the government has wanted for a long time."
As the law stands now, surveillance in criminal investigations falls under the
federal wiretap statute commonly known as "Title III." Under Title III, an
investigator demonstrates probable cause to a judge, who then issues a warrant
authorizing a wiretap. The probable-cause standard, in the words of ACLU
President Nadine Strossen, "isn't insurmountable, but it requires more than
The Foreign Intelligence Surveillance Act of 1978 (FISA) gives investigators
gathering foreign intelligence a lower bar to clear and thus offers fewer
protections for U.S. citizens. Currently, FISA standards apply only when
foreign-intelligence gathering is "the" sole or primary purpose of an
investigation. Under Ashcroft's proposed change, collecting foreign intelligence
would only have to be "a" goal in a given investigation to justify granting the
relaxed FISA standards.
James X. Dempsey, deputy director of the Center for Democracy and Technology,
says that the proposed change violates the original intent of FISA. The only
reason the Justice Department adopted the weaker standard in the first place, he
says, was that information gathered was not intended for criminal investigations,
since foreign intelligence was "the" primary purpose.
"The Justice Department said the looser guidelines were appropriate because
information in counterintelligence wiretaps would only be used for spy-on-spy and
foreign-policy purposes," Dempsey adds. "It was like saying, 'No one will be
arrested on the basis of this information; no one is going to jail.'"
Changing an article may seem insignificant, Dempsey says, but in the real
world it means that the government could open a FISA investigation on, say, a
citizen of Palestinian origin without probable cause to suspect criminal action.
And for anyone concerned with making sure that the new law will be
constitutional, that's a--or maybe the--big problem.