CONGRESS LIMITS CIVIL LIBERTIES
Congress limits civil liberties
Posted by Concerned Citizens Opposed to Police States
Thur, Dec 21, 2000 at 05:02
ALERT: Congress limits civil liberties before going home for the holidays.
By Dave Kopel of the Independence Institute
Congress may adjourn today -- but not before inflicting a
series of blows on civil liberties and federalism. As is
usual for end-of-the-session assaults on civil liberties,
the plan is to speed the new laws through as attachments
to some innocuous law, before most people in Congress have
time to notice. The only real chance for stopping this plan
lies in House and Senate leadership (especially the House)
being flooded with phone calls objecting to yet another
sneak attack on the Bill of Rights.
At issue is H.R. 46, a seemingly harmless bill titled "Public
Safety Medal of Valor." The bill sets up a federal board to
award federal Medals of Valor to policemen, federal agents,
and the like. But Congress, unlike many state legislatures,
does not operate under a constitutional requirement that a
bill's subject matter and title be the same. And it turns
out that there's much more in this bill than just medals
for firefighters. What the bill does is:
Expand federal asset forfeiture.
Expand wiretapping
Provide special additional punishments for people who
use encryption.
Federalize juvenile crimes, which are properly matters
for state governments to address.
The House committee report on the bill, of course, only
discusses medals for police officers -- and not any of the
unrelated material which is being added in the closing hours
of Congress. The unrelated, dangerous, material comes mostly
from the never-passed H.R. 2448.
These new provisions were added to H.R. 46 on October 24,
2000, by the Senate. (See Congressional Record page 10913).
Forfeiture
Section 304 of the "Medal of Valor" bill provides for
"Criminal and Civil Forfeiture for Computer Fraud and Abuse."
Although federal forfeiture laws have been partially reformed,
they are still massively weighted in favor of the government,
and allow the government to seize property from people who
have never been convicted of a crime.
H.R. 46 would expand federal forfeiture law to include various
computer crimes, and allow the forfeiture of any personal
property used "to commit or to facilitate the commission of
such violation." So the federal government could seize every
computer you own, before you have even been charged -- let
alone convicted -- of a computer crime.
Wiretapping
Section 308 of the bill provides federal wiretapping authority
over people suspected of committing various computer crimes --
allowing the interception of "wire, oral, and electronic
communications relating to computer fraud and abuse." So if
the federal government asks for a warrant (and wiretap warrants
are almost never denied), not only could federal agents read
your e-mail (an "electronic communication"), they could also
put listening devices in every room in your house.
If a teenager were suspected of computer hacking (even
hacking which caused no real damage, but which allegedly
posed "a threat to public health"), then H.R. 46 would
allow the government to wiretaps the parents' telephone. The
average telephone wiretap results in the interception of 1,971
conversations, according to the Wiretap Report for 1999
(Published by the administrative office of the United States
Courts).
Current federal wiretap authority stems from the Wiretap Act
of 1968. President Lyndon B. Johnson was very concerned about
the dangers of wiretapping -- perhaps because he personally
had ordered some abusive wiretaps; so the president opposed
proposals to create federal wiretap power. Eventually, he
accepted the Wiretap Act as part of a larger compromise to
allow passage of the Gun Control Act of 1968. Part of the
compromise was that wiretap powers would be invoked only for
certain enumerated and particularly dangerous offenses. These
were crimes involving espionage, treason, violence, or
organized crime.
Unfortunately, in the following three decades, the number
of suspected offenses for which wiretapping is allowed has
quadrupled, to over 100. Among these offenses are making false
statements on student-loan applications or passport applications.
18 U.S.C. sec. 2516(1).
Now, H.R. 46 would expand wiretapping to include a wide variety
of computer crimes, many of which are relatively minor.
Why Wiretaps Are Especially Dangerous
When the Fourth Amendment was written, the Founders expected
that all searches and seizures would be controlled by an
important type of checks and balances. Whenever a person was
searched, he would know about the search; government agents
would enter his home or business, look around, and take
property away. The victim of the search would necessarily
know that he had been searched. He would have every incentive
to use all legal means to ensure that the search was conducted
properly, according to the warrant, and that the warrant
itself was properly issued. After the search, he would be able
to seek various forms of redress, including filing a lawsuit,
if any part of the search had been improper.
Wiretaps, however, destroy this important check that safeguards
the Fourth Amendment. Under current federal law, wiretaps --
unlike every other kind of search -- may be conducted in secret.
18 U.S.C. sec. 2518. The law allows delay of months -- and
sometimes-indefinite delay -- in notifying a person that she
has been subjected to wiretaps. Thus, the most important
element of the Fourth Amendment's checks and balances -- the
desire of the person being searched to protect her privacy --
is eliminated.
Moreover, ordinary search warrants must specifically describe
what will be searched for, and where the search will be
conducted. So if the police are looking for a stolen car,
they will check the garage, but not rummage through a person's
bedroom drawers.
Wiretaps, in contrast, more closely resemble the Writs of
Assistance, which provoked the American Revolution. When a
wiretap is placed on a phone, the police listen to every
conversation, since they cannot tell in advance whether the
people will talk about a subject related to the wiretap
warrant, or about something else. Technically, the police
are required to stop listening when they are sure that the
conversation is not about the alleged crime involving the
wiretap. But in practice, it is very difficult to ensure
that this requirement is obeyed. Even the most conscientious
police wiretapper cannot help overhearing many innocent
conversations, since he cannot foresee what the parties
will talk about. In recent years, there have been about
two million innocent conservations per year overheard as
a result of federal and state wiretaps, according to the
Wiretap Report.
Unfortunately, while wiretaps are subject to fewer checks
and balances than ordinary searches, they are considerably
more invasive and destructive to security and privacy.
Supreme Court Justice Louis Brandeis explained:
The evil incident to invasion of the privacy of the
telephone is far greater than that involved in tampering
with the mails. Whenever a telephone line is tapped, the
privacy of the persons at both ends of the line is invaded,
and all conversations between them upon any subject, and
although proper, confidential, and privileged, may be
overheard. Moreover, the tapping of one man's telephone
line involves the tapping of the telephone of every other
person whom he may call, or who may call him. As a means
of espionage, writs of assistance and general warrants
are but puny instruments of tyranny and oppression when
compared with wire-tapping. (Olmstead v. United States,
277 U.S. 438 (1928)(Brandeis, J., dissenting))
Earlier this year, the Clinton administration promised that
there would be no more wiretapping bills until privacy
reforms were enacted -- such as a requirement that the police
have probable cause before obtaining cell-phone records which
disclose your location. Nevertheless, H.R. 46 is moving
forward, and contains nothing to improve privacy protection.
Special Punishment for Encryption
Section 310 provides enhanced (more severe) sentencing for
computer criminals who use encryption. But as the ACLU points
out, we don't provide extra punishment for burglars who wear
gloves, or embezzlers who use paper shredders. So why provide
extra punishment simply because a criminal uses encryption?
The obviously answer, the ACLU notes, is because enhanced
punishment "stigmatizes the use of encryption, suggesting
that it is somehow worse to use this method to conceal a
crime than to use other methods."
Federalizing Juvenile Crime
Although Congress nearly passed a mammoth bill in 1999 to
federalize juvenile crime, the issue of juvenile justice
(like most other criminal justice issues) is properly a
matter for states. Section 306 of H.R. 46 would allow
federal courts to hear juvenile delinquency cases involving
alleged teenage computer criminals.
But there's no reason to believe that federal courts are
better than state courts in dealing with 14-year-olds
accused of hacking. Notably, every state has some kind of
juvenile justice program, to provide appropriate treatment
to rehabilitate juveniles. The federal government does not.
Besides, federal courts are already so overwhelmed with
drug cases that there is no reason to burden them further
with juvenile matters that belong in state court.
Virginia Democrat Bobby Scott is watching H.R. 46 closely,
and will make sure that it does not pass with "unanimous
consent." But the bill remains a threat under procedures
which allow suspension of the rules, or as an attachment
to the omnibus spending bill.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
CCOPS ALERTS Copyright 2000 CCOPS, Inc. Permission is granted to
reproduce this alert in full, so long as the following contact
information is included:
CCOPS: Concerned Citizens Opposed to Police States
P.O. Box 270205
Hartford, WI 53027
Phone: (262) 670-9920
Fax: (262) 670-9921
Web: http://www.ccops.org/
e-mail: webmaster@ccops.org
Congress limits civil liberties
Posted by Concerned Citizens Opposed to Police States
Thur, Dec 21, 2000 at 05:02
ALERT: Congress limits civil liberties before going home for the holidays.
By Dave Kopel of the Independence Institute
Congress may adjourn today -- but not before inflicting a
series of blows on civil liberties and federalism. As is
usual for end-of-the-session assaults on civil liberties,
the plan is to speed the new laws through as attachments
to some innocuous law, before most people in Congress have
time to notice. The only real chance for stopping this plan
lies in House and Senate leadership (especially the House)
being flooded with phone calls objecting to yet another
sneak attack on the Bill of Rights.
At issue is H.R. 46, a seemingly harmless bill titled "Public
Safety Medal of Valor." The bill sets up a federal board to
award federal Medals of Valor to policemen, federal agents,
and the like. But Congress, unlike many state legislatures,
does not operate under a constitutional requirement that a
bill's subject matter and title be the same. And it turns
out that there's much more in this bill than just medals
for firefighters. What the bill does is:
Expand federal asset forfeiture.
Expand wiretapping
Provide special additional punishments for people who
use encryption.
Federalize juvenile crimes, which are properly matters
for state governments to address.
The House committee report on the bill, of course, only
discusses medals for police officers -- and not any of the
unrelated material which is being added in the closing hours
of Congress. The unrelated, dangerous, material comes mostly
from the never-passed H.R. 2448.
These new provisions were added to H.R. 46 on October 24,
2000, by the Senate. (See Congressional Record page 10913).
Forfeiture
Section 304 of the "Medal of Valor" bill provides for
"Criminal and Civil Forfeiture for Computer Fraud and Abuse."
Although federal forfeiture laws have been partially reformed,
they are still massively weighted in favor of the government,
and allow the government to seize property from people who
have never been convicted of a crime.
H.R. 46 would expand federal forfeiture law to include various
computer crimes, and allow the forfeiture of any personal
property used "to commit or to facilitate the commission of
such violation." So the federal government could seize every
computer you own, before you have even been charged -- let
alone convicted -- of a computer crime.
Wiretapping
Section 308 of the bill provides federal wiretapping authority
over people suspected of committing various computer crimes --
allowing the interception of "wire, oral, and electronic
communications relating to computer fraud and abuse." So if
the federal government asks for a warrant (and wiretap warrants
are almost never denied), not only could federal agents read
your e-mail (an "electronic communication"), they could also
put listening devices in every room in your house.
If a teenager were suspected of computer hacking (even
hacking which caused no real damage, but which allegedly
posed "a threat to public health"), then H.R. 46 would
allow the government to wiretaps the parents' telephone. The
average telephone wiretap results in the interception of 1,971
conversations, according to the Wiretap Report for 1999
(Published by the administrative office of the United States
Courts).
Current federal wiretap authority stems from the Wiretap Act
of 1968. President Lyndon B. Johnson was very concerned about
the dangers of wiretapping -- perhaps because he personally
had ordered some abusive wiretaps; so the president opposed
proposals to create federal wiretap power. Eventually, he
accepted the Wiretap Act as part of a larger compromise to
allow passage of the Gun Control Act of 1968. Part of the
compromise was that wiretap powers would be invoked only for
certain enumerated and particularly dangerous offenses. These
were crimes involving espionage, treason, violence, or
organized crime.
Unfortunately, in the following three decades, the number
of suspected offenses for which wiretapping is allowed has
quadrupled, to over 100. Among these offenses are making false
statements on student-loan applications or passport applications.
18 U.S.C. sec. 2516(1).
Now, H.R. 46 would expand wiretapping to include a wide variety
of computer crimes, many of which are relatively minor.
Why Wiretaps Are Especially Dangerous
When the Fourth Amendment was written, the Founders expected
that all searches and seizures would be controlled by an
important type of checks and balances. Whenever a person was
searched, he would know about the search; government agents
would enter his home or business, look around, and take
property away. The victim of the search would necessarily
know that he had been searched. He would have every incentive
to use all legal means to ensure that the search was conducted
properly, according to the warrant, and that the warrant
itself was properly issued. After the search, he would be able
to seek various forms of redress, including filing a lawsuit,
if any part of the search had been improper.
Wiretaps, however, destroy this important check that safeguards
the Fourth Amendment. Under current federal law, wiretaps --
unlike every other kind of search -- may be conducted in secret.
18 U.S.C. sec. 2518. The law allows delay of months -- and
sometimes-indefinite delay -- in notifying a person that she
has been subjected to wiretaps. Thus, the most important
element of the Fourth Amendment's checks and balances -- the
desire of the person being searched to protect her privacy --
is eliminated.
Moreover, ordinary search warrants must specifically describe
what will be searched for, and where the search will be
conducted. So if the police are looking for a stolen car,
they will check the garage, but not rummage through a person's
bedroom drawers.
Wiretaps, in contrast, more closely resemble the Writs of
Assistance, which provoked the American Revolution. When a
wiretap is placed on a phone, the police listen to every
conversation, since they cannot tell in advance whether the
people will talk about a subject related to the wiretap
warrant, or about something else. Technically, the police
are required to stop listening when they are sure that the
conversation is not about the alleged crime involving the
wiretap. But in practice, it is very difficult to ensure
that this requirement is obeyed. Even the most conscientious
police wiretapper cannot help overhearing many innocent
conversations, since he cannot foresee what the parties
will talk about. In recent years, there have been about
two million innocent conservations per year overheard as
a result of federal and state wiretaps, according to the
Wiretap Report.
Unfortunately, while wiretaps are subject to fewer checks
and balances than ordinary searches, they are considerably
more invasive and destructive to security and privacy.
Supreme Court Justice Louis Brandeis explained:
The evil incident to invasion of the privacy of the
telephone is far greater than that involved in tampering
with the mails. Whenever a telephone line is tapped, the
privacy of the persons at both ends of the line is invaded,
and all conversations between them upon any subject, and
although proper, confidential, and privileged, may be
overheard. Moreover, the tapping of one man's telephone
line involves the tapping of the telephone of every other
person whom he may call, or who may call him. As a means
of espionage, writs of assistance and general warrants
are but puny instruments of tyranny and oppression when
compared with wire-tapping. (Olmstead v. United States,
277 U.S. 438 (1928)(Brandeis, J., dissenting))
Earlier this year, the Clinton administration promised that
there would be no more wiretapping bills until privacy
reforms were enacted -- such as a requirement that the police
have probable cause before obtaining cell-phone records which
disclose your location. Nevertheless, H.R. 46 is moving
forward, and contains nothing to improve privacy protection.
Special Punishment for Encryption
Section 310 provides enhanced (more severe) sentencing for
computer criminals who use encryption. But as the ACLU points
out, we don't provide extra punishment for burglars who wear
gloves, or embezzlers who use paper shredders. So why provide
extra punishment simply because a criminal uses encryption?
The obviously answer, the ACLU notes, is because enhanced
punishment "stigmatizes the use of encryption, suggesting
that it is somehow worse to use this method to conceal a
crime than to use other methods."
Federalizing Juvenile Crime
Although Congress nearly passed a mammoth bill in 1999 to
federalize juvenile crime, the issue of juvenile justice
(like most other criminal justice issues) is properly a
matter for states. Section 306 of H.R. 46 would allow
federal courts to hear juvenile delinquency cases involving
alleged teenage computer criminals.
But there's no reason to believe that federal courts are
better than state courts in dealing with 14-year-olds
accused of hacking. Notably, every state has some kind of
juvenile justice program, to provide appropriate treatment
to rehabilitate juveniles. The federal government does not.
Besides, federal courts are already so overwhelmed with
drug cases that there is no reason to burden them further
with juvenile matters that belong in state court.
Virginia Democrat Bobby Scott is watching H.R. 46 closely,
and will make sure that it does not pass with "unanimous
consent." But the bill remains a threat under procedures
which allow suspension of the rules, or as an attachment
to the omnibus spending bill.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
CCOPS ALERTS Copyright 2000 CCOPS, Inc. Permission is granted to
reproduce this alert in full, so long as the following contact
information is included:
CCOPS: Concerned Citizens Opposed to Police States
P.O. Box 270205
Hartford, WI 53027
Phone: (262) 670-9920
Fax: (262) 670-9921
Web: http://www.ccops.org/
e-mail: webmaster@ccops.org