LAW MAKES SNOOPING EASIER

While much of the new federal wiretap act is confusing, one thing is clear: it establishes a lower level of protection for electronic communications than Title III of the 1968 law had provided for wire and oral communications.

Where Title III allowed government surveillance only for certain specified crimes, the new law authorizes interception of electronic messages that may provide evidence of any federal felony.Additionally, government agents may gain access to stored data without having to establish probable cause to believe a crime has been committed. Police may secure a warrant to seize information contained in electronic storage upon a showing that the data may be "relevant to a legitimate law enforcement inquiry." It is hard to imagine a seizure of data that could not be justified under such a standard.

Not only does the act dilute the protections it extends to new communication technologies, it chips away at existing safeguards. Taken as a whole, the wiretap act rewrite will increase substantially the possibilities for surveillance by federal agencies.

For one thing, it increases by about a third the number of crimes for which a surveillance order may be obtained. Wiretaps may now be authorized for such "major" federal felonies as mail fraud, escape and automobile theft.

The new law also expands the list of Justice Department officials who may authorize applications for court approval to include "any acting assistant attorney general or any deputy assistant attorney general in the Criminal Division." Any "governmental entity" may apply for authorization to seize stored data.

The act no longer requires that government agents actually conduct the wiretaps - the FBI may go outside the government to hire independent contractors to intercept communications. Thus, the White House plumbers unit could be reactivated so long as it is "supervised" by the bureau.

The House Judiciary Committee Report explained that this change "is designed to free field agents from the relatively routine activity of monitoring interceptions so that they can engage in other law enforcement activities."

In other words, the legislative change acknowledges that wiretapping has become so commonplace that the FBI lacks sufficient manpower to carry it out.

Subtle changes in the law's definitions will enable the government with far less judicial oversight to monitor the parties involved in conversations. The 1968 law prohibited unauthorized interceptions of the contents of communications, defined as any information concerning the identify of the parties to a communication or its "existence, substance, purport or meaning."

The new act deletes from the definition of "contents" the existence of the communication or the identity of the parties. Because of this change, no authorization at all will be necessary for surveillance that discovers only that a call took place and who was involved.

This small but significant deletion will greatly enhance the government's ability to conduct certain specialized types of surveillance. It conceivably could allow specialized surveillance of the networking patterns of citizens in general, and will facilitate the government's efforts to trace leaks of sensitive information without the nuisance of having to justify its actions to a judge.

In March 1985, the Washington Post reported on government plans to monitor by computer all telephone calls from federal offices. The purpose of the plan was to identify calling patterns and to spot frequently dialed numbers. It would be no large leap for the computer analysis to pick out calls to reporters, as well.

The Reagan administration last year assigned to a special FBI unit the job of ferreting out leaks of government information to the press, and this change in the wiretapping law gives the squad an additional tool. Absent judicial review, there is no assurance that such techniques will be reserved for genuine matters of national security.

Indeed, the FBI team already was activated to discover who disclosed the government's improper activities in the administration's "disinformation" campaign against Moammar Khadafy. An overheated Sen. Strom Thurmond, R-S.C., similarly demanded that the FBI check out who leaked the contents of William Rehnquist's Justice Department memos during Supreme Court confirmation hearings last summer.

If Watergate were to recur in 1987, it would not be difficult for the government to identify - and silence - Deep Throat.

Assuming a government agent runs afoul of the relaxed surveillance standards and is prosecuted or sued for unauthorized surveillance, the act significantly expands the available defenses. Title III had allowed as a complete defense to any such litigation a good faith reliance on a court order.

Under the new law, a good faith reliance that the surveillance was justified acts as a complete defense even in situations where a court order was not obtained. The new provision immunizes the government agent from prosecution or civil action under the Electronic Communication Privacy Act or under "any other law."

Not only does the act greatly expand the government's ability to snoop, it handicaps the ability of those who are wronged to bring malefactors to justice.

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