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Is privacy the next casualty?

CNET's Washington watcher Declan McCullagh says a new strategy to expand the FBI?s ability to conduct electronic surveillance could become a civil libertarian?s nightmare.

WASHINGTON--Sen. Mike DeWine is crusading to hand the FBI new powers to eavesdrop on immigrants and other non-citizens living in America.

The Ohio Republican, a former county prosecutor, is proposing that police need only have a "suspicion" that someone has links to terrorism before being able to spy on that person or snoop through their home.

DeWine's bill does not authorize the Feds to target American citizens or green card holders. But it does mean that the mere "suspicion" of illicit activities would be enough to wiretap the phones and bug the e-mail communications of tourists or legal immigrants who hold H-1B, B-2, TN-1, or student visas.

"We must give our intelligence community the tools they need to closely monitor non-United States persons who want to harm Americans," DeWine asserts. "I believe these changes are necessary for our government to protect Americans."

What DeWine's proposal seeks to do is unleash the full power of the mighty Foreign Intelligence Surveillance Act (FISA) against immigrants, tourists and visitors to the United States who are suspects in terrorism investigations. Currently, it's difficult for federal police to use FISA against non-Americans; DeWine's bill and a related bill introduced by Sen. Chuck Schumer, D-N.Y., would make it far easier.

As part of its post-Watergate reforms, Congress enacted FISA in 1978. Because the purpose of the law was to target foreign intelligence agents, the law granted police vast powers. An example: FISA permits the FBI to conduct warrantless physical searches and electronic surveillance against non-Americans--no court order required.

FISA even states that the attorney general may "may authorize physical searches without a court order...for periods of up to one year."

FISA isn't limited to traditional phone wiretapping. There's an entire section devoted to electronic surveillance, permitting "the installation or use of an electronic, mechanical or other surveillance device." That's a flexible definition that stretches to include the FBI's Carnivore Net-surveillance system, keystroke loggers and remotely-installed surveillance systems like the FBI's Magic Lantern spyware.

But up until now, FBI agents have had to claim that they had "probable cause" to believe that a non-American was connected with a crime and was also a member of an international terrorist group. If DeWine and Schumer get their way, mere "suspicion" of any terrorist link is good enough.

Their proposals go too far. For much of the last decade, Congress has been handing more and more power to federal law enforcement. And since the attacks of Sept. 11, politicians have steadfastly dismissed privacy concerns in an attempt to bolster security by any means possible. It's reasonable to take steps to increase security, of course, but unreasonable to ignore the costs of the new rules on privacy and America's long-standing concept of limited government.

Take the USA Patriot Act, which Congress overwhelmingly approved last fall. It permits police to obtain court orders to conduct secret searches of Americans' homes and offices and browse medical and financial records without first showing evidence of a crime.

It's not even clear that more powers handed to the FBI would do any good. The most recent issue of the Los Angeles Weekly reports that an FBI agent has accused the agency of shutting down his 1998 criminal probe into alleged terrorist-training camps inside the United States. If that agent, Robert Wright, is telling the truth, the real problem at the FBI may be lack of common sense--not lack of surveillance authority.

This spring, Attorney General John Ashcroft announced new FBI guidelines permitting agents to conduct more "data mining" and Web browsing without reasonable suspicion of a crime first. What's more, Ashcroft's rules apply not just to terrorism, but to drug and copyright infringement investigations too.

At least nowadays, Ashcroft is hardly one of the most vocal civil libertarians in town. He memorably informed Congress last December that criticism of the Justice Department's power grab would "only aid terrorists."

But even Ashcroft still seems to realize when a proposed law violates the Fourth Amendment's prohibition on "unreasonable searches and seizures."

During a hearing before the Senate Intelligence Committee last week, a Justice Department official expressed strong reservations about DeWine's plan to permit surveillance upon mere "suspicion" of wrongdoing.

James Baker, Justice Department counsel for intelligence policy, told the committee--DeWine is a member--that the Bush administration "is not prepared to support" the bill.

"What is at stake, namely, (is) our ability to conduct investigations that are vital to protecting national security," Baker said. "If we err in our analysis and courts were ultimately to find a 'reasonable suspicion' standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions."

At the same hearing, incidentally, the FBI's deputy general counsel began fretting about the Internet. "Muslim extremists have found the Internet to be a convenient tool for spreading propaganda and helpful hints for their followers around the world," the FBI's Marion Bowman said. "Web sites calling for jihad, or holy war, against the West are not uncommon."

It's not clear what the future of the DeWine and Schumer bills will be. Without an unambiguous endorsement from the Bush administration, they may languish in committee and stand a slender chance of being enacted before Congress adjourns this fall.

But DeWine's aides insist that the DOJ's concerns are misplaced. "Even if the court said reasonable suspicion was unconstitutional, what you'd lose was that case," an aide said Friday. "You wouldn't nullify the rest of the statute."

Translation: Watch out if you're in the United States and you're not a citizen and don't hold a green card. In the war on terrorism, your privacy could be the next casualty.