October 11, 2000 -- Letter to Senate on S. 2448, Law Enforcement Electronic Surveillance

October 10, 2000

Re: S. 2448, A Bill To Increase Law Enforcement Electronic Surveillance, Civil Asset Forfeiture, Prosecution of Juveniles in Federal Court, and To Make the Use of Encryption A Grounds for Enhancing a Criminal Penalty

Dear Senator:

We are writing to urge you to oppose S. 2448 because the bill grants new law enforcement authority at the expense of civil liberties and privacy rights. In contrast to the balanced approach taken by the House Judiciary Committee when it reported H.R. 5018, the Electronic Communications Privacy Act of 2000 (H. Rept. 106-932, October 4, 2000), S. 2448, the "Internet Integrity and Critical Infrastructure Act of 2000," includes a series of new law enforcement powers without any effort to balance them with increased privacy protections for electronic and voice communications. If S. 2448 is adopted, the 106th Congress would have the dubious distinction of enacting legislation that further threatens privacy of communications while having done nothing to advance the privacy of such communications at a time when public concern about privacy is at an all time high. As a result, we strongly urge you to oppose this legislation.

GENERAL OBJECTIONS TO S. 2448

This legislation comes before the Senate during a period of time in which the government has engaged in electronic surveillance at record levels. While the Department of Justice has often said that the Internet poses new challenges to law enforcement, in reality, it has been a boon to governmental surveillance. Last year, state and federal law enforcement obtained more orders for electronic surveillance than in any previous year. The number of federal intercept applications almost doubled between 1989 and 1999, and in 1995 and 1996, for the first time, the federal government obtained more electronic surveillance orders than all of the states combined. Each time an electronic surveillance order is executed, nearly 200 persons' communications are intercepted. Precious few are ever indicted, much less convicted. For the first five-year period for which statistics are available (1969-73), more than half of the conversations intercepted in law enforcement electronic surveillance were incriminating conversations. Over the most recent five year period, approximately four of every five intercepted conversations was innocent. In each of the last few years, nearly two million innocent communications have been intercepted in law enforcement electronic surveillance. This is a tremendous sacrifice of personal privacy. S. 2448 would make this problem worse, and result in the interception of more innocent conversations in law enforcement electronic surveillance.

We oppose S. 2448 because it would make minor computer hacking crimes a predicate for a law enforcement wiretap. Under current law, law enforcement officials can obtain an order authorizing interception of electronic communications such as e-mail when they are investigating any felony, including a felony violation of 18 U.S.C. 1030. In contrast, orders authorizing interception of voice communications are available only for certain enumerated, usually serious, felonies. 18 U.S.C. 2516. S. 2448 would add felony computer hacking prohibited by 18 U.S.C. 1030 to that list of felonies.

Because it does so much damage to privacy, wiretapping should be authorized only to investigate the most serious crimes. Adding all felony violations of 18 U.S.C. 1030 to the list of wiretap predicates would extend wiretap surveillance to minor crimes. For example, under the bill, if a teenager who had done so in the past intentionally and without authorization accessed a computer connected to the Internet and unintentionally caused damage, law enforcement could get a court order authorizing a wiretap of his parents' phone. With past experience as a guide, law enforcement would then eavesdrop on nearly 2,000 conversations conducted over that line.

It is unnecessary to add 18 U.S.C. 1030 to the list of wiretap predicates. Such crimes are perpetrated by use of electronic communications, not voice communications. Electronic communications used in such a felony are already subject to interception under 18 U.S.C. 2516.

When the White House proposed adding Section 1030 to the list of wiretap predicates, it did so preserve law enforcement access to electronic communications such as e-mail, not because law enforcement needed access to voice communications to investigate conduct prohibited by Section 1030. This was necessary because the White House proposal would have limited interception of electronic communications to investigation of those crimes listed among the wiretap predicates. The Administration made this clear in the "Proposed Legislative History" of the legislation that it transmitted with its proposed electronic surveillance legislation. With respect to this provision, the White House legislation had a balance that is absent from S. 2448. At a minimum, S. 2448 should be amended to provide that the wiretap predicates in 18 U.S.C. 2516(1) apply to electronic as well as to voice communications.

Moreover, the Electronic Communications Privacy Act of 2000 reported by the House Judiciary Committee as H.R. 5018 includes many of the changes that H.R. 2448 would make to 18 U.S.C. 1030, but balances them against other privacy enhancements. H.R. 5018 would raise the extremely low standard for pen registers and trap and trace devices (which record the numbers dialed from and to a telephone), require probable cause for disclosure of location information generated in connection with use of a cellular telephone, subject illegal surveillance of electronic communications to the statutory exclusionary rule, extend the warrant requirement to more e-mail in storage, and require some reporting of the disclosure of the contents of electronic communications in storage. S. 2448 should be put into balance by including these measures to increase the privacy of electronic and voice communications. Because it expands electronic surveillance and omits any measures to increase the privacy of communications, we urge you to oppose S. 2448.

SPECIFIC OBJECTIONS TO S. 2448

Apart from our concern that S. 2448 expands electronic surveillance and does not include any measures to enhance privacy, we urge you to oppose the bill for a number of other reasons:

Section 3 (c)(5): Terminating Financial Assistance

We oppose this provision because it would allow a federal judge to permanently bar a person from receiving federal financial assistance for their education. Although not strictly speaking a civil liberties issue, we oppose the policy of withholding federal financial assistance from persons convicted of crimes. During the 105th Session, Congress passed a bill preventing anyone convicted of a drug crime from receiving federal financial educational assistance. One conviction disqualified a person for one year, two convictions disqualified a person for two years of loans and three or more convictions permanently disqualified a person from federal financial assistance. Persons who successfully completed drug treatment could have loans reinstated.

The provision in S. 2448 is both narrower and broader than the one for drug crimes. The provision does not require a judge to terminate financial assistance as the drug provision did, however, there are no limitations placed on the power of the judge to terminate aid. This provision authorizes the judge to permanently disqualify any felony offender convicted of a computer hacking offense from ever receiving federal financial assistance.

Although individuals do not have the "right" to a post-secondary education, nor the "right" to federal financial assistance, this provision would disproportionately impact low-income people. For some persons, the loss of federal financial loans would virtually guarantee that the person could not obtain a secondary education. Wealthier people would not be impacted in this way. So, the impact of the punishment would not be the same for all people. Additionally, education is the best way to encourage rehabilitation, so eliminating a person's chance of getting an education will not encourage rehabilitation. At the very least, we recommend Congress insert a clause that would enable a person to have their financial assistance reinstated dependent on successful completion of the period of probation.

Section 3 - (d)(1) - Expanding Jurisdiction Outside the United States

We oppose this provision because it would reach conduct with no nexus to the United States. This provision expands the definition of "protected computer" to include computers located outside of the United States. Nothing within the definition of "protected computer" requires that any transaction be within or affecting the United States. The definition of a "protected computer" could include a computer that "is used in foreign commerce and located outside of the United States." The United States does not have a legitimate interest in computer crime that does not impact the United States, nor does it have the jurisdiction to investigate and prosecute crimes that occur in other countries - without some jurisdictional tie to the United States. The definition should be tightened up to read, "including computers located outside of the United States if they are involved in activity that impacts upon the United States."

Section (d)(10) - Definition of "Conviction"

We oppose expanding the definition of conviction for purposes of sentencing enhancements to include a juvenile adjudication. Juvenile adjudications are not criminal convictions. Children are not entitled to the same due process rights as are adults in criminal cases. It is unfair to use the results from the informal children's proceedings as a "first conviction" for purposes of imposing the severe sanctions available under 18 U.S.C. 1030. Doing so may result in young people being incarcerated for extraordinarily long periods of time.

Section 4(b) - Civil Asset Forfeiture

The ACLU opposes expansions in the government's use of civil asset forfeiture. This section would expand such use. The Fifth Amendment provides that before the government can take a person's property the person is entitled to full and meaningful due process protections. Current civil forfeiture law does not provide adequate protections against unfair and arbitrary government takings.

Section 6 - Increasing Federal Jurisdiction Over Juveniles

The ACLU opposes expanding federal jurisdiction over juvenile delinquency cases. This section adds offenses under Section 1030 to the small list of juvenile offenses that can be heard in federal court. The ACLU opposes using the federal courts for juvenile cases because there is no federal juvenile justice system and children whose cases are adjudicated in federal courts do not have access to the services available in state juvenile courts. State juvenile court systems provide social workers, juvenile probation officers and separate juvenile facilities for children who need to be institutionalized. These services increase the likelihood that children will get the type of attention they need to reform their lives. The ACLU also supports de-federalizing crime policy. Under our constitutional system, criminal cases should be handled by the states. This provision increases the jurisdiction of federal court at a time when we should be decreasing their jurisdiction. For many of these reasons, the House Judiciary Committee deleted a similar provision from H.R. 5818 on a voice vote.

Section 10(c) - Using Encryption as a Sentencing Enhancement

The ACLU believes it is unwise to single out the use of encryption for enhanced punishment. The Sentencing Guidelines already provide for increased punishment when criminals obstruct or impede the administration of justice (§3C1.1). Similarly, the theft Guideline already contains an enhancement for conduct that involved more than minimal planning (§2B1.1(b)(4)(A)), as do the Guidelines for similar crimes. Use of encryption or any other sophisticated means to conceal a crime would likely trigger these existing enhancements.

Rather than merely clarifying that use of encryption constitutes an obstruction of justice within the existing Sentencing Guidelines, this section directs the Sentencing Commission to add to the Guidelines a new encryption-specific enhancement. The provision is objectionable because it stigmatizes the use of encryption, suggesting that it is somehow worse to use this method to conceal a crime than to use other methods. Such a policy reflects the now-discredited view that encryption is dangerous and must be contained. To be sure, criminals who use encryption should be punished, but they are no more culpable than burglars who use gloves or white-collar criminals who use a shredding machine to destroy documentary evidence.

CONCLUSION

Because S. 2448 fails to strike the proper balance between law enforcement and privacy, would expand the interception of innocent communications at the expense of privacy, result in the prosecution of juveniles in federal court, and make use of encryption a grounds for enhancing a criminal penalty, we urge you to oppose S. 2448.

Sincerely,

Laura W. Murphy
Director

Rachel King
Legislative Counsel

Gregory T. Nojeim
Legislative Counsel

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