It's the little things that count. While some privacy advocates cry foulover the section in Attorney General John Ashcroft's draft antiterrorism billthat extends certain wiretapping provisions to the Internet, an equally ominouschallenge to civil liberties lurks in an innocent one-word change. In Section 153of the proposed legislation presented to Congress on September 19, the word thewould be changed to a.
Amazing what a difference an indefinite article makes.
"This is an attempt to destroy the distinction between criminal investigationand foreign intelligence," says Morton Halperin, a senior fellow at the Councilon Foreign Relations and former director of the ACLU's Center for NationalSecurity Studies. "It's something the government has wanted for a long time."
As the law stands now, surveillance in criminal investigations falls under thefederal wiretap statute commonly known as "Title III." Under Title III, aninvestigator demonstrates probable cause to a judge, who then issues a warrantauthorizing a wiretap. The probable-cause standard, in the words of ACLUPresident Nadine Strossen, "isn't insurmountable, but it requires more thanspeculation."
The Foreign Intelligence Surveillance Act of 1978 (FISA) gives investigatorsgathering foreign intelligence a lower bar to clear and thus offers fewerprotections for U.S. citizens. Currently, FISA standards apply only whenforeign-intelligence gathering is "the" sole or primary purpose of aninvestigation. Under Ashcroft's proposed change, collecting foreign intelligencewould only have to be "a" goal in a given investigation to justify granting therelaxed 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 onlyreason the Justice Department adopted the weaker standard in the first place, hesays, 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 andforeign-policy purposes," Dempsey adds. "It was like saying, 'No one will bearrested on the basis of this information; no one is going to jail.'"
Changing an article may seem insignificant, Dempsey says, but in the realworld it means that the government could open a FISA investigation on, say, acitizen of Palestinian origin without probable cause to suspect criminal action.
And for anyone concerned with making sure that the new law will beconstitutional, that's a--or maybe the--big problem.