By Dave Kopel of the Independence Institute
12/15/00 11:10 a.m., National Review Online. More by Kopel on federal criminal laws.
EDITOR'S NOTE: Late on December 15, the sponsors of H.R. 46 agreed to remove all objectionable material from the bill, except for the encryption provision.
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:
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).
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.
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.
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.
(Olmsted 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.
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."
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.