CDT Testimony

Testimony of Jerry Berman
Executive Director
Center for Democracy & Technology

before the
Senate Judiciary Committee
Subcommittee on Constitution, Federalism, and Property Rights

on
Protecting Constitutional Freedoms in the Face of Terrorism

October 3, 2001

Summary

Thank you for the opportunity to testify at this hearing on the momentous question of improving our nation's defenses against terrorism in a manner consistent with our fundamental Constitutional liberties.

CDT joins the nation in grief and anger over the devastating loss of life resulting from the September 11 terrorist hijackings and attacks against the World Trade Center and the Pentagon. Like many, our relatively small staff had friends and acquaintances killed in those heinous acts. We strongly support the efforts of our government to hold accountable those who direct and support such atrocities.

We know from history, however, that measures hastily undertaken in times of peril - particularly measures that weaken controls on government exercise of coercive or intrusive powers - often infringe civil liberties without enhancing security. For that reason, we harbor serious reservations about several bills currently under discussion in this Subcommittee and elsewhere on Capitol Hill. In particular, we are deeply concerned about the Administration's proposed "Anti-Terrorism Act of 2001" (ATA). A recently-circulated alternate package, the Sensenbrenner-Conyers "Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act," removes or changes a very few concerns in ATA, but retains most of the provisions damaging to civil liberties. The concerns we raise in this testimony, unless otherwise noted, apply equally to both bills.

We are deeply concerned about the impact of these bills on constitutional liberties, most particularly in two areas.

First, the ATA and PATRIOT Act tear down the "wall" between the government's authority to conduct counter-intelligence surveillance against foreign powers and terrorist groups, and its authority to conduct criminal investigations of Americans. In the post-Watergate era, Congress carefully constrained the government from inappropriately mixing its foreign intelligence and law enforcement capabilities, since such mixing would greatly infringe Americans' constitutional freedoms. The current bills eviscerate that division. Both would change the "primary purpose" standard that permits exceptional surveillance but only when counter-intelligence is "the" primary purpose of an investigation. Instead, the bills would make these extraordinary powers open to all investigations in which counter-intelligence is "a" (or, in the PATRIOT Act, "a significant") purpose (Sec. 153). As a result, they would permit law enforcement to use constitutionally suspect surveillance techniques‹ secret searches, bugs, and wiretapping‹against Americans in criminal investigations without the protections that Congress originally intended. Besides damaging the civil liberties of law-abiding Americans who may have their communications subjected to secret interception, the bill raises the possibility that criminal prosecutions pursued in this way could be thrown out on constitutional grounds.

At the same time, the ATA and PATRIOT Act allow data collected in a criminal investigation to be shared widely, without judicial review and regardless of whether those activities serve a law enforcement or counter-intelligence purpose (Sec. 154). This would include the content of Title III wiretaps and evidence presented to grand juries, both of which are traditionally protected under law. Such a revision to the law would permit such troubling activities as the development by the CIA or other intelligence agencies of dossiers for Americans not suspected of any criminal activity.

Second, the ATA and PATRIOT Act broadly expand the government's ability to conduct electronic surveillance and diminish the rights of Americans online. The most problematic sections in this regard are:

A range of other provisions further expand the government's surveillance authority, including:

Mr. Chairman, we commend you and the Subcommittee for holding this hearing, and taking the time to consider the legislative proposals put forth by the Administration. Only through the hearing process can you and the American public understand what is being proposed, how it would change current law, and whether the changes are responsive to any deficiencies that the September 11 attack may have revealed. Just as President Bush and his military advisers are taking their time in planning their response, to ensure that they hit the terrorist targets with a minimum of collateral damage, so it is incumbent upon this Congress to avoid collateral damage to the Constitution.

Context: Law Enforcement and Intelligence Gathering Authorities

As you well know, the current legal structure of the intelligence community was established after Watergate both to improve intelligence and to ensure that the rights of Americans were not eroded by the vast and sometimes vague intelligence authorities that had previously existed. The legal and oversight system for intelligence sprang not just from a concern about civil liberties, but also from a concern about improving the efficacy of intelligence gathering.

A number of the provisions of the Attorney General's bill would change provisions of the Foreign Intelligence Surveillance Act of 1978 (FISA). As the Subcommittee is well aware, FISA gave the FBI and the CIA extremely broad authority to investigate terrorism and to conduct counter-intelligence not only against foreign nationals here in the U.S., but also against American citizens suspected of involvement with terrorist groups. Unlike criminal law, where high standards of government conduct vigorously protect constitutional rights, FISA makes a special exemption for the intelligence community, permitting it to place wiretaps, install bugs, and conduct secret searches without showing probable cause of criminal conduct, giving notice, or even turning the results of the surveillance over to a court for later review. Through FISA, our intelligence community has authority to investigate a sweeping array of individuals and organizations, and through such investigations to defend against acts of terrorism.

Congress designed the FISA statute to be effective, but it recognized that such broad investigative powers, if misapplied, could threaten Americans' constitutional rights. Congress therefore demanded that the powers bestowed by FISA be strongly contained, and that a clear separation - a wall - be erected between the unique and broad standards for surveillance described in FISA, and those used in the rest of the criminal justice system. In particular, Congress wanted to ensure that surveillance under FISA would not be initiated for the purpose of criminal investigations, since such would circumvent the careful protections built into the criminal system. Rules were installed that carefully constrained FISA's usage, and the "wall" precluded information collected through FISA investigations from being used in criminal ones except in cases where the surveillance was initiated and maintained for broader foreign intelligence purposes.

Comments on Administration Proposals

The ATA and the PATRIOT Act would expand already-broad federal government authorities to conduct electronic surveillance and otherwise collect information not only on foreign nationals but on American citizens, while sidestepping constitutional protections. As described above, the bills do not adequately control that expansion, and as a result they damage civil liberties in two ways.

Both bills would change the "primary purpose" standard that permits FISA's exceptional standards to be used only when counter-intelligence is "the" primary purpose of an investigation. Instead, the ATA and PATRIOT Act propose to open FISA to all investigations in which counter-intelligence is "a" (or, in the PATRIOT Act, "a significant") purpose (Sec. 153). Such a change clearly threatens the "wall" Congress erected between the government's normal police authority and its special counter-intelligence powers, with the end result of substantially reducing American's constitutional protections before the government. The ATA and PATRIOT Act would thus permit law enforcement to use constitutionally suspect surveillance techniques‹ secret searches, bugs, and wiretapping‹against Americans in criminal investigations without the protections that Congress originally intended. Besides damaging the civil liberties of law-abiding Americans who may have their communications subjected to secret interception, the bill raises the possibility that criminal prosecutions pursued using FISA could be thrown out on constitutional grounds.

At the same time, the ATA and PATRIOT Act allow data collected in a criminal investigation to be shared widely and used for any number of activities, without judicial review and regardless of whether those activities serve a law enforcement or counter-intelligence purpose (Sec. 154). Information that could be shared would include the content of Title III wiretaps and evidence presented to grand juries, both of which are traditionally protected under law. Certainly, the government's law enforcement and intelligence communities should be encouraged to work together, but the terms of their cooperation should be carefully defined, with, standards that serve the dual purposes of national security and civil liberties.

Such a lack of controls on the government's ability to share and distribute information about American citizens - no matter the purpose for which it was collected - leads to a situation in which entire communities (such as the American Islamic community) might have a surveillance net cast over them by the government's counter-intelligence arm. It leads to the possibility that American citizens disagreeing with the policies of a sitting Administration would have their activities monitored and logged, and dossiers created for them at the CIA or FBI. And it creates the risk that, in our desire for a nation as secure in the future as it has been in the past, we might sacrifice the elements of freedom that made this country as strong as it is.

Even as the ATA and PATRIOT Act alter the division between FISA and the government's normal police powers, they also include numerous, complex provisions extending the surveillance laws, particularly regarding the Internet, even as both bills raise many questions about how such provisions will be implemented. Many of the changes are not related to security concerns raised by the September 11 terrorist attacks. Many are not limited to terrorism cases, but relate to criminal investigations. Some have been proposed by the Justice Department before, and some have been rejected by Congressional committees before, based on their breadth and their impact on liberty.

The proposed language includes sweeping revisions such as a modification of the pen register standard that would allow the government to intercept the content of some Internet communications without any fourth amendment protection (Sec. 101) and a new authority for Internet Service Providers (ISPs) to authorize government surveillance of their users' Internet connections (Sec. 106 in ATA, Sec. 105 in PATRIOT Act). Other changes include the so-called "roving wiretap" authority (Sec. 152), which would permit the government to intercept, for example, all Internet communications coming from a public Internet terminal (no matter who is using it) if a suspected terrorist is seen using that terminal.

As technology develops, so too should the government's ability to carry out its law enforcement and counter-terrorism functions. But injudicious changes such as those proposed in the ATA and the PATRIOT Act threaten basic freedoms guaranteed by the constitution. We therefore urge this Subcommittee and the law enforcement and intelligence communities to take a more limited, surgical approach to expanding government powers, both online and off.

A more detailed analysis of the Administration's bill follows below. Once again, we appreciate and commend this Subcommittee's efforts to gather public input and to hold this hearing today. We hope the Subcommittee will move forward with those provisions of its bill and the Administration's bill that are non-controversial and responsive to the tragic attacks of September 11, but will defer on the other more complex and divisive provisions that we have identified. We look forward to working with the Subcommittee and staff to craft an appropriate response at this perilous moment in our country's history, and to avoid a rush to judgment on legislation that could ultimately imperil both freedom and security.

Extended Analysis of Administration Bill

The Administration's bill has two kinds of provisions that give rise to concerns: those that would lower the standards for government surveillance and those that address the difficult question of information sharing.

In terms of collection standards, our law enforcement and intelligence agencies already have broad authority to monitor all kinds of communications, including email. Both the criminal wiretap statute and the Foreign Intelligence Surveillance Act already cover terrorism. For some time, it has been recognized that those standards need to strengthen the standards for government surveillance. We see no justification for the changes proposed in the Administration bill that weaken those standards. We are particularly opposed to changes that would eliminate the judicial review that can be the most important protection against abuse.

The Foreign Intelligence Surveillance Act allows the FBI to conduct electronic surveillance and secret physical searches in the US, including surveillance of US citizens, in international terrorism investigations. FISA also authorizes court orders for access to certain business records. As you know, the standards under FISA are much lower than the standards for criminal wiretaps, and in return, the surveillance is supposed to be focused on the collection of intelligence, not criminal evidence. The FISA court, which last year approved more than 1000 surveillance requests, has denied only one request in its 22 year history.

Distinct from the Administration's unsupportable desire to avoid judicial controls on its authority, perhaps the central and most important problem facing the Congress is the question of information sharing. For many years, this has been recognized as a very difficult question; it is one that will be especially difficult to resolve satisfactorily given the pressure-cooker atmosphere of this time. We want to work out a balanced solution. But it cannot be done by wiping away all rules and barriers. Any solution needs to preserve the fundamental proposition that the CIA and other intelligence agencies should not collect information on US citizens in the US.


The Center for Democracy and Technology is a non-profit, public interest organization dedicated to promoting civil liberties and democratic values for the new digital communications media. Our core goals include enhancing privacy protections and preserving the open architecture of the Internet. Among other activities, CDT coordinates the Digital Privacy and Security Working Group (DPSWG), a forum for more than 50 computer, communications, and public interest organizations, companies and associations working on information privacy and security issues.