. . . And Constitutional Rights Lag Behind : Communications: Without legislation to allow us to code our own bits, our First Amendment rights are at risk.

Would you give the FBI the right to scan the mail you send and receive if the agency says it needs to? Would you trade some of your privacy rights so that the FBI and other state agencies could catch a few more drug dealers? You did long ago.

Now the FBI and other law enforcers have just won the right to scan all our digital phone and fax calls. In October, Congress passed and the President signed an FBI-backed bill that will force phone companies to retrofit their phone lines with devices that let the FBI and others plug in and listen to digital talk.

The FBI cast the measure as a way to fight crime. “We see a rocky road ahead for law enforcement,” FBI chief of investigative technology James K. Kallstrom, said, “because the (new digital) technology hasn’t been designed with the correct feature packages.” Those “correct” features are just those that would keep you from sending secure messages by phone or fax or electronic mail.

At issue is the First Amendment right to say what you want to say in your own way. The new digital phones convert what you say into long strings of 1s and 0s. To say it in your own way you can encrypt those 1s and 0s with the latest smart software. The FBI wants to be sure it can crack the codes you use. It wants to limit the kinds of codes you can use and wants to be sure it can listen to you use them. The FBI does not want you to speak in a language it cannot hear or understand.

A few months ago, the Clinton Administration tried to do much the same thing for the FBI with its failed “Clipper Chip” proposal. That would have built the code breaker right into new computers, phones, modems and satellites.

The new FBI measure goes straight to the phone companies. FBI Director Louis Freeh claims that the FBI failed to carry out 91 court-ordered wiretaps because of poor line access. The new bill will pay the phone companies $500 million to retrofit the phone lines as the FBI sees fit. Thus will the state pay for our prior consent with our own tax dollars.

In 1968, Congress approved wiretaps that stem from a court order. To get a court order for a wiretap, the FBI must show probable cause of a crime or a threat to national security. In practice, probable cause has come to mean just that the FBI asks for a wiretap. That stems in large part from the new search-and-seizure powers that the Reagan and Bush administrations and the Supreme Court gave the FBI, CIA and police to wage the Cold War and the war on drugs.

In 1968, AT&T; held a monopoly on phone lines. And phones were analog, as are most still. You speak into a phone and the phone turns your speech into smooth changes in current that flow over wires to some other phone or microwave link or satellite link. The FBI can tap a phone or fax call if it can intercept the analog signal.

New communications are digital. And each phone company uses its own digital schemes and devices to send and receive digital messages. The FBI can crack our codes only if it has direct access to them. It has such access for wireless phones and faxes since these transmit through the air. The FBI and police can tap your cellular phone without a warrant. They can scan calls at random to look for key words and case leads and they do so as a matter of course.

At root, the FBI still wants us to use codes that it or the National Security Agency can crack. The NSA has 12 underground acres of computers to crack codes in Fort Meade, Md. It also has little or no oversight. So far, the NSA has used export laws to stop Microsoft and other firms from using encryption codes in their software that the NSA felt were too hard to crack.

We need a digital-rights act--a law that gives us the right to code our own bits in our own way. This would extend the First Amendment to the Information Age. The law would cost zero tax dollars, and a bold politician could propose it today. Then we would not have to trust the goodwill of unchecked state agencies that buy computers by the ton and swap databases at the speed of light.

A digital-rights act would ensure our right to secure speech in the face of the next wave of digital and wireless advances. Or else at each step we will face trading more of our digital privacy for more government control.