The USA Act -- A Done Deal

by David Sims

With both houses of Congress having signed off on legislation to fight terrorism, the enactment of the anti-terrorism package of laws -- now called the USA Act -- is all but assured. No one's expecting a presidential veto.

The evolved anti-terrorism package, which has also been called ATA (the Anti-Terrorism Act) and The Patriot Act, includes a wide range of statutes, including border controls, rewards for informants, money for victims and law enforcement agencies, rules for detaining suspects and freezing funds, and changes in electronic surveillance.

But some of the most disturbing statements in earlier versions of the bill -- those that had hackers worried they would go to prison for life because they hacked the school web site when they were 15 -- appear to have been yanked out.

"They've taken out a couple of the really obvious egregious things," said Le Tien, a senior staff attorney with the Electronic Frontier Foundation, "and they've reworked it so that they have to be associated with attempts to influence the government or retaliate against government conduct, which limits the scope of their effect. It won't apply to the garden variety computer crimes against a company that have nothing to do with government action."

So black-hatted hackers can go back to attacking some of their favorite corporate targets without fearing the death penalty. (Even so, they may want to steer clear of cracking the digital rights management properties of Adobe's e-book software, for obvious reasons.)

More significant than penalties against hackers -- who are kind of asking for trouble anyway -- are the relaxed restrictions against electronic surveillance contained in the USA Act.

The EFF's Tien says "a huge aspect" of the Act is that it expands investigators' abilities to gather information on people, even before they're suspected of a crime.

"There's a difference ... between surveillance for the purposes of law enforcement, investigating a crime, and counter-intelligence investigation."

Under current wiretap laws, agents need to convince a court of probable cause that a suspect's criminality. The USA Act enables wiretap and other electronic surveillance under the Foreign Intelligence Surveillance Act. Under FISA, Investigators don't have to convince the court that they're target is probably a criminal; they just have to convince the court their target is probably an agent of a foreign power.

In this season's atmosphere, that looks like a good thing. In our current state of psychological seige, many Americans would want the FBI to be able to monitor the movements and communications of someone with suspected ties to al-Qaeda, whether or not the Feds can prove a criminal act.

But the sweeping coverage of the Act extends beyond such suspects to the agent of any foreign power, which could include a secretary at the Japanese embassy or a program manager with the Swedish office of tourism. Would a court approve those wiretaps? Probably not. But it has the power to, under the USA Act.

This is just one example, but the big question in all of this seems to be, how many liberties should we give up, and how long are we willing to do it? A few members of Congress managed to insert a sunset clause in the USA Act, so all these special provisions expire in 2004, unless the president decides to renew them for two years. By that time, we may know the law reached too far. On the other hand, by then we may be completely comfortable with levels of surveillance that we would have railed against before September 11.