Ashcroft proposes vast new surveillance powers
(Business Week / February 12, 2003) Proposed legislation leaked to the
Internet on Friday would criminalize some uses of encryption, and dramatically
increase federal law enforcement's domestic spying powers.
A sweeping new anti-terrorism bill drafted by the Justice Department
would dramatically increase government electronic surveillance and data
collection abilities, and impose the first-ever federal criminal penalties
for using encryption in the U.S.
A draft of the Domestic Security Enhancement Act of 2003 dated January
9th was obtained by the non-partisan Center for Public Integrity and
released Friday. The 120-page proposal would further expand many of the
surveillance powers Congress granted federal law enforcement in the USA-PATRIOT
Act in 2001, while increasing the secrecy surrounding some government
The Justice Department hasn't released the proposal publicly, nor has
it been formally submitted to lawmakers, but a legislative "control
sheet" attached to the bill [pdf] indicates that review copies were
sent to Speaker of the House Dennis Hastert, and Vice President Richard
Cheney last month. In a written statement Friday, a Justice Department
spokesperson said it would be "premature to speculate on any future
decisions, particularly ideas or proposals that are still being discussed
at staff levels."
Civil liberties groups are already calling the bill "Patriot II".
"I just don't know where to start, it's just expanding everything," says
Lee Tien, staff attorney at the Electronic Frontier Foundation. "When
this hits the Hill there's going to be a lot more talk about what's going
on, as opposed to the Patriot Act, where Congress just went on the government's
One provision in the bill would represent America's first domestic regulation
of encryption, though it would apply only to those already attempting
to commit a federal crime.
The new law against "Unlawful use of encryption" would establish
prison terms for anyone who "knowingly and willfully uses encryption
technology to conceal any incriminating communication" relating
to a federal crime that they're committing, or attempting to commit.
Offenders would face up to ten years in prison, in addition to the jail
time the underlying crime carries, if any. A Justice Department analysis
included with the proposal suggests that the illegal encrypting carry
a mandatory minimum term of five years in prison.
Similar language has appeared in other government proposals dating back
to the mid-1990's. But as encryption becomes more integrated into everyday
Internet use, the idea of establishing a special punishment for using
crypto borders on the ludicrous, says Tien. "As more and more Internet
communications use encryption, it's going to be the default... It's like
saying if you use a payphone you should go to jail."
Other provisions in the bill would:
- Allow a federal judge in one part of the country to issue a search warrant
for a location in another part of the country in cases involving the
suspected financing of terrorist organizations, attacks on critical infrastructure,
or computer crime. The USA-PATRIOT Act allowed such inter-jurisdictional
searches only in terrorism cases.
- Eliminate the requirement that federal agents issue a subpoena or
obtain a court order to access someone's credit report. Under the bill,
would only need to certify that they will use the information "in
connection with their duties to enforce federal law" to secretly
gain access to a consumer's credit profile.
- Expand grand jury secrecy rules to apply to witnesses, allowing
prosecutors to order ordinary citizens not to divulge the existence
of a grand
jury investigation, or their own testimony, to anyone except an attorney.
Current grand jury secrecy rules apply only to jurors, prosecutors
- Permit federal agents to monitor both voice and Internet communications
from a target's Web-enabled cell phone, and to access the contents
of the device's memory, with a single court order
- Expand the Foreign Intelligence Surveillance Act that governs U.S.
spying on foreign nationals, and make it easy for agents to share
information with criminal investigators.
Many of the over 100 changes to federal law proposed in the bill don't
involve the Internet. Among other things, the Domestic Security Enhancement
Act would codify the Justice Department's position that the government
doesn't have to identify detainees held in terrorism investigations
unless they're charged with a crime. Another provision would expand a
DNA databases of suspected terrorists. The bill would also strip some
suspected American terrorists of their citizenship.