Proposed Wiretap Changes Under Review

The proposal to extend the FBI’s reach in tapping phones and computers does little more than bring the law up to date in a world of wireless phones and the Internet, say former officials who served under presidents from Ronald Reagan to Bill Clinton.

“How many people today have just one phone attached to one address,” so that a single wiretap can catch all of a suspect’s calls asked Stewart Baker, Clinton’s general counsel for the National Security Agency. This is about “modernizing the law” to catch up with technology, he said.

But privacy advocates and civil libertarians say they fear the deadly terrorist attacks of Sept. 11 are being used to give the government sweeping new search authority.

“Internet users are the ones who should be most concerned,” said Gregory Nojeim, associate director of the American Civil Liberties Union in Washington. He said one surveillance proposal would give law enforcement authorities what amounts to a “blanket warrant” and another would give the government new ways to monitor a person’s computer use.

Last week, the nation was united in its reaction to the attacks. This week, the consensus ended and a fierce debate ensued after a series of swift moves to change the laws.

Indeed, civil libertarians said privately they worried when the spirit of unity swept through the Senate chamber late last week.

Just two days after the attack, the Senate met and unanimously passed several anti-terrorism measures that most lawmakers admitted they had not read. Sen. Orrin G. Hatch (R-Utah), one of the sponsors, said it was not time to “dither” or “let some of the petty aspects of this body” stand in the way of responding to terrorism.

After that inauspicious start, Atty. Gen. John Ashcroft and key lawmakers agreed to work together to exchange ideas for needed revisions in the law.

On Wednesday evening, Ashcroft gave lawmakers a draft with 52 proposed changes, ranging from wiretaps and intelligence gathering to immigration and money laundering. Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) plans to hold a hearing Tuesday on the proposals.

Meanwhile, a civil liberties coalition of liberal and conservative groups on Thursday called for a go-slow approach.

“Most of the [Ashcroft proposals] have nothing to do with the urgent needs of the investigation,” said Morton Halperin, a former State Department official who organized the coalition.

Privacy advocates question whether laws should be changed. They say the rise of the Internet already has given law enforcement many new tools for investigating and tracking suspects. “It’s been a surveillance boon,” said James Dempsey of the Center for Democracy and Technology.

But former government officials who have worked on terrorism cases say existing laws need minor changes. These changes would not threaten civil liberties, they add.

For example, current law allows the government to obtain electronic records of an Internet customer’s name and address, but “remarkably” not his credit card number, Ashcroft’s draft proposal says in recommending this change.

Similarly, authorities are allowed to obtain a warrant to search only in a local jurisdiction.

“Thus, for example, where any investigator in Boston is seeking electronic e-mail in the Yahoo account of a suspected terrorist,” the proposal says, “he may need to coordinate with agents, prosecutors and judges” in another jurisdiction--a cumbersome restriction on a fast-moving probe.

Concealing or “harboring” a foreign spy is a crime, but there is no comparable crime for harboring a terrorist. The proposal adds one.

Student records are shielded as private under federal law, but Ashcroft said colleges should be required to disclose the records if investigators obtain a warrant.

Beyond that, intelligence agents need broader authority to track the phone calls of those who may be involved in terrorism, according to the proposal. The law now limits this surveillance to a person who is an “agent of a foreign power.”

Still another change would make it easier for investigators to listen to messages stored on voicemail.

Victoria Toensing, who headed the Justice Department’s anti-terrorism unit during the Reagan administration, said a search warrant does not extend to listening to a suspect’s voicemail.

When TWA Flight 847 was hijacked in 1985, “we had a foreign intelligence wiretap, and we learned the law said we couldn’t use that for a later criminal case,” she said. “We said we need to fix this [law] after it’s all over, but it didn’t happen.”

House Majority Leader Dick Armey (R-Texas) said that because some proposed changes are common-sense and others controversial, the anti-terrorism package may be split in two so lawmakers can move swiftly on those changes with broad support, he said.

The Internet proposals could become the most controversial. So-called “trap-and-trace” orders, which are relatively easy to get, give investigators a list of telephone numbers that have been received or dialed on a suspect’s phone.

But when applied to the Internet, these orders could reveal the Web sites people visit, what search terms they use and what kind of computers they are using.

Likewise, the risk of roving wiretaps, some say, is that they permit law enforcement agents to tap additional phone numbers they believe a suspect might use, without the need to go back to a judge for permission.

Such decisions are better left to judges, said the ACLU’s Nojeim. “Law enforcement agents can’t be trusted,” he said. “We need to have judicial review.”

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Times staff writers Maura Dolan in San Francisco and Greg Miller and Marisa Schultz in Washington contributed to this story.