US: Analysis of the proposed Anti-Terrorism Act by EPIC

The Electronic Privacy Information Centre (EPIC) in the US has produced a detailed analysis of the proposed Anti-Terrorism Act 2001. The text of their analysis is below or: Analysis ("pdf" format) also see: the text of the proposed legisation is on the Privacy International site: Text

Analysis of Provisions of the Proposed Anti-Terrorism Act of 2001
Affecting the Privacy of Communications and Personal Information

In response to the horrendous attacks that occurred on September 11, Attorney General Ashcroft has proposed the Anti-Terrorism Act of 2001 (ATA), a far-reaching legislative package intended to strengthen the nation’s defense against terrorism. Several of ATA’s provisions would vastly expand the authority of law enforcement and intelligence agencies to monitor private communications and access personal information. Those provisions address issues that are complex and implicate fundamental constitutional protections of individual liberty, including the appropriate procedures for interception of information transmitted over the Internet and other rapidly evolving technologies. Despite the complexity of these matters, the Attorney General has urged Congress to quickly approve the proposal, which became available for analysis only within the last several days.

As Congress considers this important piece of legislation, it should be guided by several critical factors:

Law enforcement and intelligence agencies already possess broad authority to conduct investigations of suspected terrorist activity. In fact, Congress approved new surveillance powers to combat terrorism in late 1998. Describing those provisions after enactment, an FBI national security official said that "any one of these extremely valuable tools could be the keystone of a successful operation" against sophisticated foreign terrorists.

Any expansion of existing authorities should be based upon a clear and convincing demonstration of need. Congress should assess the likely effectiveness of any proposed new powers in combating the threats posed by terrorist activity.

Any new authorities deemed necessary should be narrowly drawn to protect the privacy and constitutional rights of the millions of law-abiding citizens who use the Internet and other communications media on a daily basis.

The longstanding distinction between domestic law enforcement and foreign intelligence collection should be preserved to the greatest extent possible consistent with the need to detect and prevent terrorist activity.

Expanded investigative powers should be limited to the investigation of terrorist activity and should not be made generally applicable to all criminal investigations.

Analysis of Specific Provisions

Pen Registers, the Internet and Carnivore

Currently, the statute authorizing the use of "pen register" and "trap and trace" devices governs real time interception of "numbers dialed or otherwise transmitted on the telephone line to which such device is attached." Although the use of such devices requires a court order, it does not require a showing of probable cause. There is, in effect, no judicial discretion, as the court must authorize monitoring upon the mere certification by a government attorney that the "information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." Therefore, these procedures lack almost all of the significant privacy protections found in Title III, the statute governing the interception of the actual "content" of a communication (e.g., a phone conversation or the text of an e-mail message).

The proposed ATA (Section 101) would significantly expand law enforcement authority to use trap and trace and pen register devices. Current law relating to the use of such devices was written to a


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