WASHINGTON -- FBI agents soon may be able to spy on Internet users legally without a court order.
On Thursday evening, two days after the worst terrorist attack in U.S. history, the Senate approved the "Combating Terrorism Act of 2001," which enhances police wiretap powers and permits monitoring in more situations.
The measure, proposed by Orrin Hatch (R-Utah) and Dianne Feinstein (D-California), says any U.S. attorney or state attorney general can order the installation of the FBI's Carnivore surveillance system. Previously, there were stiffer restrictions on Carnivore and other Internet surveillance techniques.
Its bipartisan sponsors argue that such laws are necessary to thwart terrorism. "It is essential that we give our law enforcement authorities every possible tool to search out and bring to justice those individuals who have brought such indiscriminate death into our backyard," Hatch said during the debate on the Senate floor.
Thursday's vote comes as the nation's capital is reeling from the catastrophes at the World Trade Center and the Pentagon, and politicians are vowing to do whatever is necessary to preserve the safety of Americans.
This week, Sen. Judd Gregg (R-New Hampshire) called for restrictions on privacy-protecting encryption products, and Carnivore's use appears on the rise. In England, government officials have asked phone companies and Internet providers to collect and record all their users' communications -- in case the massive accumulation of data might yield clues about Tuesday's terrorist attacks.
Under the Combating Terrorism Act, prosecutors could authorize surveillance for 48-hour periods without a judge's approval.
Warrantless surveillance appears to be limited to the addresses of websites visited, the names and addresses of e-mail correspondents, and so on, and is not intended to include the contents of communications. But the legislation would cover URLs, which include information such as what Web pages you're visiting and what terms you type in when visiting search engines.
Circumstances that don't require court orders include an "immediate threat to the national security interests of the United States, (an) immediate threat to public health or safety or an attack on the integrity or availability of a protected computer." That covers most computer hacking offenses.
During Thursday's floor debate, Sen. Patrick Leahy (D-Vermont), head of the Judiciary committee, suggested that the bill went far beyond merely thwarting terrorism and could endanger Americans' privacy. He also said he had a chance to read the Combating Terrorism Act just 30 minutes before the floor debate began.
"Maybe the Senate wants to just go ahead and adopt new abilities to wiretap our citizens," Leahy said. "Maybe they want to adopt new abilities to go into people's computers. Maybe that will make us feel safer. Maybe. And maybe what the terrorists have done made us a little bit less safe. Maybe they have increased Big Brother in this country."
By voice vote, the Senate attached the Combating Terrorism Act to an annual spending bill that funds the Commerce, Justice and State departments for the fiscal year beginning Oct. 1, then unanimously approved it. Since the House has not reviewed this version of the appropriations bill, a conference committee will be created to work out the differences.
Sen. Jon Kyl (R-Arizona), one of the co-sponsors, said the Combating Terrorism Act would give former FBI Director Louis Freeh what he had lobbied for years ago: "These are the kinds of things that law enforcement has asked us for. This combination is relatively modest in comparison with the kind of terrorist attack we have just suffered."
"Experts in terrorism have been telling us for a long time and the director of the FBI has been telling us (to make) a few changes in the law that make it easier for our law enforcement people to do their job," Kyl said.
It's unclear what day-to-day effects the Combating Terrorism Act would have on prosecutors and Internet users. Some Carnivore installations apparently already take place under emergency wiretap authority, and some civil liberties experts say part of this measure would give that practice stronger legal footing.
"One of the key issues that have surrounded the use of Carnivore is being addressed by the Senate in a late-night session during a national emergency," says David Sobel, general counsel of the Electronic Privacy Information Center.
A source close to the Senate Judiciary committee pointed out that the wording of the Combating Terrorism Act is so loose -- the no-court-order-required language covers "routing" and "addressing" data -- that it's unclear what its drafters intended. The Justice Department had requested similar legislation last year.
"Nobody really knows what routing and addressing information is.... If you're putting in addressing information and routing information, you may not just get (From: lines of e-mail messages), you might also get content," the source said.
The Combating Terrorism Act also expands the list of criminal offenses for which traditional, court-ordered wiretaps can be sought to explicitly include terrorism and computer hacking.
Other portions include assessing how prepared the National Guard is to respond to weapons of mass destruction, handing the CIA more flexibility in recruiting informants and improving the storage of U.S. "biological pathogens."
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