Legislation Seeks to Tighten Privacy Laws

Shocked at how simple it is for law enforcement to get court permission to see the telephone numbers people dial, legislators Wednesday discussed new bills aimed at tightening surveillance laws and put final touches on a plan to address workplace privacy.

The proposed wiretap bill would make it more difficult for prosecutors to obtain court permission to monitor the telephone numbers dialed by a suspect. The bill would require the same standard of evidence now needed for permission to tap a telephone conversation.

Two similar bills, the Electronic Communications Privacy Act and the Digital Privacy Act, spawned from citizen concerns about their privacy online. Recent revelations about Carnivore, a law enforcement tool that can monitor e-mail messages, raised congressional interest in privacy legislation.

The bills also extend existing law to cover conversations held on the Internet and other electronic means and make it tougher for authorities to monitor cell phones or use them to find suspects.

Justice Department officials told a House subcommittee that the changes would threaten public safety and make it more difficult to find and prosecute criminals.

“It is not the kind of balanced comprehensive package that would benefit public safety and privacy,” Kevin DiGregory, deputy associate attorney general, said of the bills.

Under existing law, it is relatively simple for a prosecutor to get the most basic type of telephone tap, a “pen register” order that records only the frequency, source and destination of telephone calls.

To get the tap, a prosecutor goes to a judge, who certifies only that the information would be relevant to an investigation. But if a prosecutor then wants to record telephone conversations, probable cause must be shown that a crime has occurred or will occur.

The new legislation would require prosecutors to present that kind of evidence to obtain a pen register order. The bills are HR 5018, HR 4987, HR 4908 and SB 2898.

Legislators, upset with the ease with which prosecutors can get pen register orders, grilled Justice Department officials Wednesday.

“My constitution wasn’t written for the protection of the prosecutor. For the life of me, I can’t see anything in my constitution that talks about the term ‘relevant to an ongoing criminal investigation,’ ” Rep. Mel Watt (D-N.C.) said. “I think what you’re trying to do is get the Constitution subcommittee to write a prosecutor standard rather than a Constitution standard.”

DiGregory noted that the Supreme Court has held that the numbers dialed aren’t covered by an expectation of privacy, as opposed to telephone conversations. He also said the rules would prevent prosecutors from getting information that would lead to probable cause.

The Clinton administration has a plan to extend the laws to cover electronic messages, but critics say it contains too many loopholes that favor law enforcement agencies. Rep. Charles T. Canady (R-Fla.), who chaired the hearing, said his committee would try to find compromises between the House bills and the administration initiative in a meeting scheduled for next week.

Civil liberties and privacy groups also attended the hearing, arguing that although the bills are a good first step, they don’t go far enough to ensure the privacy of citizens.

Sen. Charles Schumer (D-N.Y.) attended the hearing to talk about his bill, which mirrors House legislation designed to force employers to notify workers if and how they’re being monitored in the office. Legislators said they hope to pass the House and Senate bills before this Congress ends, and noted that there is little opposition.

The House and Senate bills require “clear and conspicuous notice” on a yearly basis about an employer’s methods of monitoring--whether it be via e-mail, telephone, Web browsing or even watching a worker’s keystrokes--though they don’t outlaw any methods.

“This legislation provides workers a first line of defense,” Schumer said.