Cyber-Spy With Caution

Atty. Gen. John Ashcroft asked Congress on Monday to bestow sweeping new electronic surveillance powers on federal authorities by this Friday. Evidence that terrorists involved in last week’s attacks used the Internet makes it clear that the nation does indeed need to expand its electronic surveillance.

But legislators must carefully weigh each incremental step in this expansion or risk that when the dust settles a year or a decade from now, the United States will find itself deprived not only of its two highest buildings but also of towering civil liberties.

Civil liberties advocates and law enforcement proponents began butting heads the moment the first message flew over the Internet. Last week’s tragedy merely hastened the need to come up with a thoughtful balance between civil liberties and domestic security in the Information Age.

Congress should, as Ashcroft has asked, revise antiquated wiretap laws and bring them into the present century. Allowing authorities only to listen in on a particular telephone line no longer makes sense. Federal officials need the ability to monitor the full communications continuum, tracking a suspect who may use several cell phones and e-mail as well as his household phone.

Internet surveillance, meanwhile, requires more incursion into private communications than phone wiretapping ever did because the two technologies work in different ways. While a direct connection is made between two parties in phone conversations, in Internet communications, data are broken up into tiny packets, meaning that the pieces of many conversations are intermingled. Thus, extracting a suspect’s data often also must involve retrieving data from many other people.

Some civil rights advocates now say they will grudgingly accept this intrusion as long as the government doesn’t indiscriminately dig through the communications of people who are not suspects. But they caution against opening the door too far, pointing out that existing laws already give federal officials broad surveillance powers.

Last week, FBI officials successfully invoked the Foreign Intelligence Surveillance Act to compel AOL and EarthLink to turn over e-mail records that may have included correspondence by suspected terrorists. The 1978 law authorizes a special court within the Justice Department to permit FBI officials to electronically monitor suspected foreign agents in the United States. The act’s burden of proof standard is in many respects lower than that required under the nation’s 1968 domestic wiretapping law, which regulated how law enforcement should apply the 4th Amendment’s “reasonable search and seizure” clause to electronic surveillance.

The Constitution was written with great deliberation and it shouldn’t be undermined in a panicky rush.

Last Thursday, for instance, U.S. senators in a 97-0 vote, passed a bill authorizing a host of new Internet surveillance procedures, even though they had seen the text of the bill only a few minutes before their vote. The measure, by Sen. Orrin Hatch (R-Utah) will soon be considered in a joint House/Senate conference committee. That committee should ensure that the bill has a “sunset provision” so that legislators in the next few years are forced to review its dimensions, effects and whether the law should be extended.

Lawmakers need to understand, as well, that cyber-surveillance is no cure-all. Experts say they are years away from decoding terrorist encryption, such as the trick of hiding messages inside pornographic photos on public Web sites. The first electronic computers were arguably the Colossus machines that British scientists devised to crack German cryptography during World War II. Breaking today’s terrorist codes may require an equally profound innovation.

For all its dangers and shortcomings, cyber-surveillance is an indispensable tool in America’s arsenal. Washington should invest in improving it, and federal authorities should have the power to use it. But first, Americans should demand clear guarantees that each intrusion into their privacy has been approved through democratic processes and determined to offer protections worthy of the liberties being lost.