October 2, 2001Dear Member of Congress:
We write first to thank you for your response to the tragic events of September 11. The Congress has already taken many steps to help safeguard America, to begin the process of healing and rebuilding, and to restore America’s confidence in air travel. These are important measures that respond to the public’s concerns in the aftermath of the crisis.
Now that new proposals are before the Congress for significant changes in the law relating to electronic privacy, immigration policy, police procedures, criminal investigations, and grand jury practices, we ask you to consider carefully whether these provisions respond to the needs of investigating and preventing terrorist acts or whether they risk diminishing basic freedoms at a time of crisis.
Going forward, we urge you to consider that:
- Any expansion of existing authorities should be based upon a clear and convincing demonstration of need. Congress should assess the likely effectiveness of any proposed new powers in combating the threats posed by terrorist activity.
- Any new authorities deemed necessary should be narrowly drawn to protect the privacy and constitutional rights of the millions of law-abiding citizens who use the Internet and other communications media on a daily basis.
- The longstanding distinction between domestic law enforcement and foreign intelligence collection should be preserved to the greatest extent possible consistent with the need to detect and prevent terrorist activity.
Specifically, we recommend that the FISA standard for surveillance authority not permit the gathering of evidence for routine criminal investigations. This proposal will reduce the authority of the judiciary and dramatically increase electronic surveillance. We further oppose efforts to treat computer crime as an act of terrorism. Such a change would bring disproportionate investigative resources to many routine crimes and obscure the larger threat that genuine terrorist acts present. Many of the other proposed expansions of surveillance authority are not limited to investigations of terrorism, but would be generally applicable to all criminal investigations. Any measures deemed necessary to address the current circumstances should be confined to cases involving suspected terrorist activity.
Further, the proposed expansion of pen register authority would increase the use of the FBI's controversial Carnivore system. An independent review team retained by the Justice Department to examine Carnivore found that the system is subject to abuse, and recommended specific changes to better protect privacy. But none of those recommendations have been implemented. Nor has the Department completed a promised internal review of the legal and policy implications of the system. Congress should not endorse the proposed changes to the pen register statute until the Department fulfills its commitment to correct the Carnivore system in response to its documented defects.
Law enforcement and intelligence agencies already possess broad authority to conduct investigations of suspected terrorist activity. Further expansions of surveillance authority will invariably impose a cost on the privacy rights of Americans. A focused, measured response to the threat of terrorist acts is the course most likely to protect America and America’s freedoms.
We appreciate your consideration of our views. A detailed legislative memo on the privacy implications of the proposed anti-terrorism legislation and other similar measures is available at our web site www.epic.org. We can also be reached at 202-483-1140.
Sincerely,
Marc Rotenberg
EPIC Executive DirectorDavid L. Sobel
EPIC General Counsel