ivore us e Cc: "Albertazzie, Sally" To: "Baker, Stewart" , farber@cis.upenn.edu, ip-sub-1@majordomo.pobox.com Subject: RE: IP: RE: Senate votes to permit warrantless Net-wiretaps, Carn ivore us e Cc: "Albertazzie, Sally" Stu, Maybe you're right. Maybe this expansion of warrantless surveillance powers is unobjectionable. Maybe the FBI and the state law enforcement agencies that will be able to legally use Carnivore without a court order in some circumstances will prove entirely trustworthy. Maybe they truly do need this power in emergencies. Maybe it'll even stop some terrorists. Maybe you're correct to say, "What's the big deal?" But let's have that discussion in public, during daylight hours, in a hearing room where reasoned conversation can take place. Let's ask the FBI director and the attorney general to testify, and let's invite representatives from groups like the ACLU, CDT and EPIC to join them. Let's allow senators to ask the bill's sponsors tough questions about what this oddly-written legislation really does. And let's give them as much time as they need to answer. What we shouldn't do is rush substantial rewrites of wiretapping law through the Senate in the middle of the night, just two days after the worst terrorist attack ever, when the country is in the throes of a national emergency. What we shouldn't do is have the legislation's sponsors -- and I don't doubt that they have the best of intentions -- hand it to their fellow senators just 30 minutes or so before a vote, which is what reportedly happened Thursday night. Stu, you've worked both in the government and in the private sector. You've studied wiretap law more closely than nearly anyone else. You know how it works. But would most senators know offhand what expanding wiretapping to include "any criminal violation of sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B" means? This is what Senator Patrick Leahy of Vermont, the chairman of the Judiciary committee and a former prosecutor, said during the floor debate: "Do we really show respect to the American people by slapping something together, something that nobody on the floor can explain, and say we are changing the duties of the Attorney General, the Director of the CIA, the U.S. attorneys, we are going to change your rights as Americans, your rights to privacy? We are going to do it with no hearings, no debate. We are going to do it with numbers on a page that nobody can understand." Senator Carl Levin of Michigan said he had no time to read what he was being asked to vote on, adding that he had been told the bill was merely an anti-terrorism measure but it seemed to do far more: "I am trying to understand what is in it since it came to me for the first time tonight. I want to be very clear, at least the way I read this, that this is not something that is just limited to counterterrorism, about which I think all of us would have a passion." The spending bill to which the wiretap legislation ("Combating Terrorism Act of 2001") was attached will have to go to conference committee and then, probably, both chambers of Congress for another vote. That process means the bill won't become law for weeks at best. During that time, Congress could have held at least one hearing on the bill; in fact, Leahy said he would have done so immediately. If the bill is so vital to our national security, couldn't it survive a straight up-or-down floor vote, rather than be attached to a massive must-pass appropriations bill for the Justice, Commerce, and State departments? As a side note, even if you believe the language to be unobjectionable, Senate Judiciary committee aides told me they believe the wording of the bill -- apparently hastily-drafted, complete with typos -- may cover the content of communications, not just origin-desination information. If they're not sure, and they had a full day to read it by the time I spoke with them Friday, how can you be so positive your interpretation is correct? Even if you're right, doesn't it make sense to double-check? During the next few months and years, we may see calls for restricting the freedoms Americans have enjoyed as a way to respond to and thwart terrorists. Many of these new laws and regulations are unobjectionable; I don't mind tighter temporary security around government buildings and airports. But others are more deserving of enlightened discussion and debate. Let's hope that happens, not in the darkness of midnight votes, but in public in the light of day. -Declan ********** ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ ------------------------------------------------------------------------- ----- End forwarded message -----