Where I Stand — Mike O’Callaghan: New privacy invasion

Thursday, Oct. 22, 1998 | 11:03 a.m.

THE U.S. HOUSE of Representatives couldn't leave Washington without waging another sneaky assault on our privacy. Every session that august body slips another knife into the privacy Americans desire by giving it a fancy name and hiding it in a vital money bill. This year it's included in the 1999 Intelligence Authorization bill.

Three years ago, following the bombing of the federal building in Oklahoma City, there was a congressional rush to legislate everything possible to fight terrorism. The U.S. Senate, with a 91-8 vote, produced a bill that contained several very questionable privacy invasions. Among those invasions was the expansion of "roving wire tap" powers.

A large number of thinking members of Congress had watched the use of federal wiretaps increase from 106 in 1981 to 544 in 1994, yes, and an average of 760 wiretaps a year for the most recent three years. They were also aware that a federal wiretap request hadn't been refused by a federal judge for more than six years. For these reasons, members of Congress wisely removed those expanded wiretap powers from the anti-terrorist legislation.

Roving wiretaps are also known to law enforcement as multipoint wiretaps. They allow investigators to intercept conversations with a single court order as the suspect moves from place to place and uses different methods of communication. In other words, if a "suspect" uses your telephone, his conversation can be intercepted just as though he was still on his own phone.

This month as Congress was rushing to adjourn, some additional powers for roving wiretaps was slipped into a funding bill. Naturally, anything to protect our country from foreign enemies sounds good and the wiretap enhancement powers were put into an intelligence bill. Who could be against this?

Nevada Congressman Jim Gibbons supported the conference report that enhanced roving wiretap powers. As a member of the House Permanent Select Committee on Intelligence he sees it as a stronger tool for intelligence agencies. Of course, under the Foreign Intelligence Surveillance Act, not even a court order is necessary when the communications "are exclusively between or among foreign powers or involve technical intelligence other than spoken communications from a location under the open and exclusive control of a foreign power; there is no substantial risk that the surveillance will acquire the communications to or from a U.S. person; and proposed minimization procedures meet the requirements set forth by the law. Under those conditions, authorization can be granted by the president through the attorney general for a period up to one year. The second is following a declaration of war by Congress. Then the president, through the attorney general, can authorize electronic surveillance for foreign intelligence purposes without a court order for up to 15 days.

"Orders for wiretaps are granted by a special court established by FISA. The court consists of seven district court judges appointed by the Chief Justice of the United States. Judges serve seven-year terms." What we have here are secret courts issuing secret wiretap powers. This, in itself, runs up another red flag. So there's little reason that roving wiretap powers should have been enhanced. Nevertheless, it was approved and will become law as just a "minor" change to the laws now in existence. To that bit of cover-up, Rep. Bob Barr, R-Ga., told his colleagues the change is neither minor nor inconsequential. Barr reminded them how these same changes failed back in 1996 after extensive debate and that more debate should be had before voting on them this year. Despite his objections his colleagues passed what he calls a serious invasion of privacy.

Barr told the legislators that "this changed federal wiretapping laws in a way that allows the government to seek a court order in any case, not limited to foreign intelligence surveillance, in any case that a federal wiretap order is sought to provide that the wiretap follow the person no matter what phone that person uses. No longer would the standard be if you have grounds to tap and grounds to obtain a court order, you tap a particular person's phone, and if that person moves to another phone, you either have to provide a showing that they are deliberately trying to thwart or you have to then get another court order."

The Georgia Republican went on to warn: "This is a very important civil liberty and privacy right. The government, however, under this legislation if this bill passes would be able to 'issue an order authorizing the interception of all communications made by a particular person regardless of what telephone he may use.' That is language from the conference report. To argue with a straight face that that is a minor change to our electronic surveillance or wiretap laws is disingenuous. This is a significant change. It needs to be debated fully. I urge that this not be allowed to stand."

So, under the guise of a "minor" change needed for "intelligence" purposes, his colleagues didn't listen to Barr. As a result, one more bite has been taken from what little privacy you and I have left in this land of the free and home of the brave.