Surveillance Switcheroo

How the anti-terrorism bill got passed

In the days following September 11, it was easy to feel kinda bad for Attorney General John Ashcroft. He really wanted to catch the terrorists, but he just didn't seem up to the job. Whiz-bang encryption and communication technologies had left the cops in the dust, he said, and unless the country acted fast, things would only get worse. That's compelling stuff, but it turns out to be an almost complete inversion of the truth. As the debate over anti-terrorism legislation boiled over late this week, one thing became painfully clear—in the nasty battle for information in the Internet Age, politicians are still far too slippery for the privacy lobby to pin down.

Take the bill that the House passed Wednesday morning. News accounts summarize the legislation by noting that it increases government surveillance capabilities and has a bunch of "money-laundering" provisions. That's all true, but it's also very general–and when it comes to bills like this, the devil is always in the details. It turns out that even most House members had no idea what they were voting overwhelmingly in favor of.

Indeed, if you happened to know what the House bill actually said, you were one of the lucky few. In a phone interview Thursday afternoon, Wired News technology reporter Declan McCullagh said that he couldn't get his hands on the full text until after it passed. He said he still had not pored over the enormously complex bill when we spoke. "The anti-terrorism legislation was rushed through Congress," McCullagh says. "There was little time for legislators to review the legislation before the vote happened. To their shame, they pretty much went ahead and voted for it anyway."

Although the House passed anti-terrorism legislation earlier this month, it was far removed from a bill that made it through the Senate. Deliberations that normally would have gone on in a conference committee instead happened informally. In the meantime, congressional sources who could have shed some light on the proceedings were almost impossible to track down because of the anthrax-induced frenzy on Capitol Hill. According to McCullagh, rank-and-file House members were still in the dark Tuesday night as leaders tried to hash out a deal with the Senate and the administration: "Members of the House of Representatives were saying, 'Whoa, can I see a copy of this bill? We haven't seen it yet.'"

A House staffer complained that the Senate never held hearings on some of the most important privacy issues: "They sold the privacy community down the river on that one." The source added that there was too much pressure to keep the legislation from going forward; the best privacy fans could do was add provisions like the sunset clause that will force Congress to reconsider at least parts of the legislation in 2004. "The attorney general didn't want to get blamed for terrorist attack number two. He turned to the career bureaucrats who dusted off all these old proposals. It was just thrown in our laps."

Think tanks and reporters around Washington scrambled Thursday afternoon to figure out what the final bill said. When I asked Jim Harper of Privacilla.org what it all meant, he replied, "I don't know if I'm going to be any less confused than you are." The Center for Democracy and Technology had a media conference call at one o'clock. Executive Director Jerry Berman and Deputy Director James Dempsey addressed how some of the bill's provisions might be abused. Berman noted that the FBI could conceivably study all the traffic on news sites that offer a pro-Middle Eastern spin: "You're going to get the news, you're trying to the get all the news. You haven't even joined a political party. You haven't joined anything. But those are now of interest. Why are you going to that site? Are you a member of an organization? Are you a supporter of the terrorists? Why don't we also look at your other records?"

This is not good stuff. One small reason to cheer: The final bill does have the sunset provision (but it doesn't apply to all aspects of the bill). More cautious legislators also managed to kill what was probably the most controversial measure—the one giving cops the power to detain suspected immigrants indefinitely. (As passed, the bill requires officials to charge people with something or deport them within seven days.) Fortunately, it doesn't even mention encryption. On the other hand, there are real concerns: federal officials can view e-mail subject lines and the addresses of Web sites people visit with near impunity. Perhaps worst of all, there is little in the bill that restricts the new police powers to terrorism investigations. Once the feds stamp out terrorism, there is a very real possibility that they will cast their new net in search of drug dealers, deadbeat dads, and traffic scofflaws.

How much leeway will law enforcement officials have to abuse these new powers? That won't be clear until the technology and privacy organizations get a chance to digest things. That alone constitutes one of the most seismic shifts in politics since September 11. Less than a month ago, the feds were on their heels, scratching for power in a technological world that had left them far behind. Today, the situation is reversed: After four weeks of political intrigue, it's the denizens of the Web who are scrambling for information, wondering what just Mr. Ashcroft has in store.