IP: Congress Moving Towards Expanded Internet Surveillance

[David Farber <dave () farber net>]

> <http://www.cdt.org/testimony/011003berman.shtml>http://www.cdt.org/testimony/011003berman.shtml 

Testimony of Jerry Berman
Executive Director
Center for Democracy & Technology

before the
Senate Judiciary Committee
Subcommittee on Constitution, Federalism, and Property Rights

on
Protecting Constitutional Freedoms in the Face of Terrorism
October 3, 2001
Summary
Thank you for the opportunity to testify at this hearing on the momentous 
question of improving our nation's defenses against terrorism in a manner 
consistent with our fundamental Constitutional liberties.
CDT joins the nation in grief and anger over the devastating loss of life 
resulting from the September 11 terrorist hijackings and attacks against 
the World Trade Center and the Pentagon. Like many, our relatively small 
staff had friends and acquaintances killed in those heinous acts. We 
strongly support the efforts of our government to hold accountable those 
who direct and support such atrocities.
We know from history, however, that measures hastily undertaken in times of 
peril - particularly measures that weaken controls on government exercise 
of coercive or intrusive powers - often infringe civil liberties without 
enhancing security. For that reason, we harbor serious reservations about 
several bills currently under discussion in this Subcommittee and elsewhere 
on Capitol Hill. In particular, we are deeply concerned about the 
Administration's proposed "Anti-Terrorism Act of 2001" (ATA). A 
recently-circulated alternate package, the Sensenbrenner-Conyers "Provide 
Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) 
Act," removes or changes a very few concerns in ATA, but retains most of 
the provisions damaging to civil liberties. The concerns we raise in this 
testimony, unless otherwise noted, apply equally to both bills.
We are deeply concerned about the impact of these bills on constitutional 
liberties, most particularly in two areas.
First, the ATA and PATRIOT Act tear down the "wall" between the 
government's authority to conduct counter-intelligence surveillance against 
foreign powers and terrorist groups, and its authority to conduct criminal 
investigations of Americans. In the post-Watergate era, Congress carefully 
constrained the government from inappropriately mixing its foreign 
intelligence and law enforcement capabilities, since such mixing would 
greatly infringe Americans' constitutional freedoms. The current bills 
eviscerate that division. Both would change the "primary purpose" standard 
that permits exceptional surveillance but only when counter-intelligence is 
"the" primary purpose of an investigation. Instead, the bills would make 
these extraordinary powers open to all investigations in which 
counter-intelligence is "a" (or, in the PATRIOT Act, "a significant") 
purpose (Sec. 153). As a result, they would permit law enforcement to use 
constitutionally suspect surveillance techniques‹ secret searches, bugs, 
and wiretapping‹against Americans in criminal investigations without the 
protections that Congress originally intended. Besides damaging the civil 
liberties of law-abiding Americans who may have their communications 
subjected to secret interception, the bill raises the possibility that 
criminal prosecutions pursued in this way could be thrown out on 
constitutional grounds.
At the same time, the ATA and PATRIOT Act allow data collected in a 
criminal investigation to be shared widely, without judicial review and 
regardless of whether those activities serve a law enforcement or 
counter-intelligence purpose (Sec. 154). This would include the content of 
Title III wiretaps and evidence presented to grand juries, both of which 
are traditionally protected under law. Such a revision to the law would 
permit such troubling activities as the development by the CIA or other 
intelligence agencies of dossiers for Americans not suspected of any 
criminal activity.



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