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Combating Terrorism Act of 2001 - Analyzed

By hillct in Op-Ed
Tue Sep 18, 2001 at 12:24:17 PM EST
Tags: Freedom (all tags)
Freedom

This past Friday, H.R.2500, the emergency funding act that contained $40 billion for recovery from the tragedies in New York and Washington, passed in late sessions of the legislature. It's admirable that in this time of need partisan politics was put aside (for the most part) to facilitate the recovery from these disastrous attacks. Let's now take a closer look at some of the provisions and amendments to this bill - Particularly Title VIIII - that went through the legislature in the wee hours of September 14.


NOTE: Provided as reference for this article is a completely cross referenced copy of the Combating Terrorism Act of 2001, inclusing referal to legislation as amended by this act

While it's a great thing to see our leaders pull together in this time of crisis, it's important also to recognize that this bill - widely considered to be an emergency measure - has been in the pipeline for two months, as a standard appropriations bill. It was simply amended to handle issues arising from last Tuesday's Tragedies. As such, it contains a number the typical pork barrel spending provisions we've come to expect from appropriations bills, such as funding to `Promote and Develop Fishery Products and Research Pertaining to American Fisheries' and other such things which anyone would be hard pressed to argue has anything to do with recovering from the disasters of Tuesday September 11, but one has to remember that this is a modified general appropriations bill and the vast majority of riders were to allocate funding to specific state and local police forces, which can be construed as being consistent with the general public view of the purpose of this legislation.

The most significant amendment to this bill was Senate Amendment 1562 introduced by Utah Republican Orrin Hatch. This is the Amendment known as the `Combating terrorism Act of 2001', which first requires a number of agencies to provide reports to congress on various aspects of American anti-terrorism readiness, and second - and far more significant - makes major modifications to the federal wiretap laws, going so far as to re-define certain terms that have been used for the past two decades with regard to communications systems surveillance. Most notably, it broadens the definition of wiretaps to mean monitoring of communications over the Internet, which draws the use of the Carnivore system out from the legally gray areas it previously occupied, to center stage.

The amendment to HR 2500 rewrites federal wiretap laws in several key areas (listed from least to most disturbing). First, It allows jurisdictional US Attorneys to authorize warrantless wiretaps (where previously only a few high level officials had this authority to grant wiretaps on an emergency basis without a warrant. Second, it makes semantic changes to the pen register laws, allowing them to be interpreted to include interception of online communications. Third - and most disturbing - broadly expands the circumstances under which warrantless taps can be authorized; to include: threats to public health & safety, national security and any attack on the integrity or availability of a protected computer - the latter of which covers any suspected computer hacking of almost any kind.

Perhaps we shouldn't be concerned about these changes - after all they really aren't that drastic, just a few words here and there - to our right to privacy. Perhaps extending the privileges of government to limit our privacy is something that should be done in half an hour in the middle of the night, as it was here, but then again, maybe Senators Carl Levin of Michigan and Patrick Leahy of Vermont were correct, that this was all being done far too quickly, with a speed in fact that prevented most of the senators to make a full review of the legislation which was presented to them a mere half hour before they were to vote on it.

It's important to remember that privacy isn't directly guaranteed in the constitution. It's a common law right derived from the due process clauses of the fifth and fourteenth amendments. With that in mind, this legislation modified Title 18 of the United States code, rather than re-interpreting constitutional provisions or something equally questionable. Once enacted, there is no constitutional argument to be had with regard to the law's suitability/appropriateness/legality. This is why it should have been publicly debated at length before voted upon. In fact, Senator Carl Levin said he thought the legislation was simply an anti-terrorism provision. Why then was this legislation pushed through in the emergency fashion that it was?

Now our leaders are telling us that the fight against terrorism will stretch between three and five years and we shouldn't rush to act, lest we act without the benefit of calmly reasoned wisdom; and yet, this legislation was pushed through congress as a rider to a critical appropriations bill that we all knew must pass, rather than be subject to a straight up or down vote, in the light of day after public debate and hearings detailing the need federal and state agencies had of these new privileges to observe the citizenry of this country.

Then again, if we grant great powers to men of principle who we have trusted to lead us in times of national turmoil, and they don't loose sight of the righteous goal in front of them; then perhaps true good will come of this. Only time will tell.

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Combating Terrorism Act of 2001 - Analyzed | 36 comments (25 topical, 11 editorial, 0 hidden)
Is wiretapping really relevant .. (4.33 / 3) (#4)
by Eloquence on Tue Sep 18, 2001 at 12:02:50 AM EST

.. when you have crypto? Sure, the feds might install trojans on your machine, but this would require backdoors in the OS, and we all know that Microsoft would never deliberately build any backdoors into their operating system if they were pressured to do so by the NSA. And that it would be impossible to disguise backdoors in open source operating systems as common security flaws, placed there deliberately by corrupt hackers.

Ahem, but seriously, even if such backdoors exist, it is likely that they are only known to very few people, so crypto should protect you from general surveillance reasonably well. Therefore it seems to me that civil rights advocates -- world-wide, not only in the US -- should absolutely concentrate on defending the right to backdoor-free crypto usage. This is essential for a variety of reasons, as you can imagine. Most people currently don't use crypto, but that's mainly a question of usability -- the next big p2p community or messaging system may well be encrypted by default, e.g. Groove Networks, Filetopia.

Of course, another interesting position would be to demand that all information be kept open, whoever owns it. Open all the government records, including those of the secret service, make NDAs illegal, give everyone access to the National Wiretap Archive, everyone can spy on their neighbour, the large evil corporation of their choice and their government. Such a scenario could have some interesting social and economic consequences, perhaps even mostly positive. (A totally unrealistic position, I know.)
--
Copyright law is bad: infoAnarchy Pleasure is good: Origins of Violence
spread the word!

benefits (3.00 / 2) (#12)
by garlic on Tue Sep 18, 2001 at 12:34:52 PM EST

so, allowing companies to legally spy on each others research would be a good or bad benefit of this?

HUSI challenge: post 4 troll diaries on husi without being outed as a Kuron, or having the diaries deleted or moved by admins.
[ Parent ]

Legally spy on? (2.00 / 1) (#20)
by Happy Monkey on Tue Sep 18, 2001 at 03:06:09 PM EST

I think the word is 'use'.
___
Length 17, Width 3
[ Parent ]
No one... (none / 0) (#32)
by Kaki Nix Sain on Wed Sep 19, 2001 at 02:12:24 AM EST

...said anything about allowing one company to use the patents of another. In fact, the patent owning company would be able to see second company printing out the plans and/or patent and stealing the idea. :)

If they put their money into developing their own plans (which would be on tape), maybe they deserve to be able to use them.



[ Parent ]

Ramifications of outlawing encryption (4.50 / 4) (#16)
by hillct on Tue Sep 18, 2001 at 01:31:51 PM EST

Recently people have been talking a lot about outlawing encryption. Personally, I'm not sure how that could work. Capitalism works because certain information is private, insofar as competition is facilitated through the gain and loss of business advantage based on secrecy. As such, I don't see any means for cryptography to be outlawed without destroying our economy.

Granted you could weaken encryption to facilitate decryption by government agencies, but let's be realistic. At this point, given the state of technology, what government agencies can decrypt, indeviduals can decrypt.

Then there's the alternative of Key Escrow systems, but the problem with that is the security liability taken on by the agency responsible for maintaining the access controls associated with those keys. Is this agency going to assume liability for stolen keys (perhaps the keys used in an international banking transaction...), etc... Such a system is unworkable.

You could also outlaw encryption in non-business communications, but then everyone would just decide that all their communications are business communications.

It just doesn't seem workable.

--CTH


--Got Lists? | Top 31 Signs Your Spouse Is A Spy
[ Parent ]
Weak Encryption Helps Terrorists (3.50 / 2) (#29)
by Steve B on Tue Sep 18, 2001 at 05:00:44 PM EST

Er, haven't we been expecting somebody to hit us with an Electronic Pearl Harbor[tm]? Isn't restricting one of the fundamental tools of network security counterproductive?

[ Parent ]
absolutely. (4.00 / 1) (#31)
by hillct on Tue Sep 18, 2001 at 10:00:32 PM EST

of course. Restricting the use of cryptography or the strength of legally usable cryptographic algorythems is completely nonsensical on many levels.

--Got Lists? | Top 31 Signs Your Spouse Is A Spy
[ Parent ]
Your nonsense, Sir... (none / 0) (#35)
by pallex on Wed Sep 19, 2001 at 09:50:00 AM EST

Check this out:

/////////////
The sophistication of encoding mechanisms has become overwhelming...It used to be that we had the capability to break most codes because
of our sophistication..... But the quantum leap that has occurred in the past to encrypt information--just from telephone conversation to telephone conversation, to say nothing of data--has gotten to a point where even
our most sophisticated capability runs into very serious limitations....So we need to have cooperation. This is what is key. We need to have
the cooperation of the manufacturing community and the inventive community in the Western World and in Asia in the area of electronics...This simply has not happened. The manufacturing sector in this area has refused to do this.

they should understand, as a matter of citizenship, they have an obligation
to allow us to have....to have our people have the technical capability to get the keys to the basic encryption activity.

/////////////

See http://cryptome.org/gregg091301.txt for details.


[ Parent ]
Privacy and 4th Amendment (4.00 / 4) (#13)
by dennis on Tue Sep 18, 2001 at 12:59:19 PM EST

Isn't "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" an explicit right to privacy? I don't know the case law or anything, but I do know this has been applied to, for example, the trunk of your car. It seems to me that electronic files are the modern equivalent of "papers." Certainly the principle, that arbitrary searches aren't allowed, implies a right to privacy.

Of course, regular citizens aren't expected to read the Bill of Rights and assume they can tell what it means, these days. We treat the Constitution sort of like the Christian Church treated the Bible prior to Martin Luther - only to be interpreted by experts. Maybe we need a Reformation....

Unreasonable search & seizure of communication (3.00 / 1) (#15)
by hillct on Tue Sep 18, 2001 at 01:15:04 PM EST

I'm not a lawyer but as far as I know, the clause Dennis mentions has never been applied to communications (vs. physical property seizure), although perhaps it could be. Any lawyers out there have a take on this?

--CTH


--Got Lists? | Top 31 Signs Your Spouse Is A Spy
[ Parent ]
Communications (3.00 / 1) (#21)
by dennis on Tue Sep 18, 2001 at 04:00:17 PM EST

It takes a warrant to get a wiretap, and it's harder to get a wiretap warrant than a regular search warrant. Wouldn't that be based on the 4th?

[ Parent ]
Not necessarily (4.00 / 2) (#18)
by MrAcheson on Tue Sep 18, 2001 at 02:43:46 PM EST

Depending on what type of lawyer you ask this may or may not be an assertion of privacy. There are essentially two lines of thought.

In the strictest legal sense this is simply preventing government intrusion without just cause. People can't barge into your house, car, etc without previously having a reason to be there. There is nothing in this wording which prevents them from searching your house from across the street by looking through the open windows with binoculars. An example of this is that police after stopping a car on a traffic violation can search it if they see something illegal inside the car through the car's windows. By seeing something illegal inside they can establish probable cause and so they can search the rest of the car.

The other interpretation of the argument is that this is a statement of a right to privacy of some sort. An example of this is that police have used an infrared camera to detect a guy with a drug lab in his basement (or something similar) but their arrest was thrown out because they couldn't actually "see" the lab.

Depending on the type of judge you get this right can be interpretted either way. There are some solid precedents through but IANAL so I can't list them.


These opinions do not represent those of the US Army, DoD, or US Government.


[ Parent ]
The Strict Legal Sense (4.00 / 3) (#19)
by PhillipW on Tue Sep 18, 2001 at 02:58:22 PM EST

There is nothing in this wording which prevents them from searching your house from across the street by looking through the open windows with binoculars. An example of this is that police after stopping a car on a traffic violation can search it if they see something illegal inside the car through the car's windows. By seeing something illegal inside they can establish probable cause and so they can search the rest of the car.

If they see something illegal in the car window, then that probably does establish probable cause. However, I don't think that they can look into someone's window actively in order to establish probable cause, justifying their snooping. This is a much more active search than seeing something through the window, and I think probable cause needs to be established before any kind of active searching is done.

-Phil
[ Parent ]
The Broken Link (5.00 / 1) (#14)
by baptiste on Tue Sep 18, 2001 at 01:05:20 PM EST

FYI - the link to more content in this story broke when our Internet link was cut this morning by telco employees installing new cable near our 'hosting' site :) I offered to host Colin's additional content for his story when he was writing it. Sorry for that - I got very nervous seeing the Ditch Witch outside when I arrived this morning and sure enough by 9AM they had knocked out our service.

Anyway, we are working to post a new link to the content soon and hopefully the original link will work again by the end of the day (here's hoping anyway)
--
Top Substitutions For 'Under God' In The Pledge Of Allegiance

the site is back up and running (none / 0) (#24)
by hillct on Tue Sep 18, 2001 at 04:31:36 PM EST

The site containing my cross referenced copy of Title VIII has been restored to operation. It's available via the link at the top ob the body of the article.

--CTH


--Got Lists? | Top 31 Signs Your Spouse Is A Spy
[ Parent ]
FYI: The text of the bill... (5.00 / 1) (#17)
by azool on Tue Sep 18, 2001 at 01:41:08 PM EST

Can be found here...

lonks to thomas.loc.gov expire too quickly (none / 0) (#23)
by hillct on Tue Sep 18, 2001 at 04:27:40 PM EST

Unfortunately, the link you mention has expired as to all links to thoms.loc.gov. This makes it impossible to link to search results from that site. You'd think they would maintain a static archive of legislation but they don't do that for some odd reason. Instead, they create temporary files containing the search results, which are subsequently deleted, making it impossible to link to the material. Vary agrivating indeed.

--CTH


--Got Lists? | Top 31 Signs Your Spouse Is A Spy
[ Parent ]
Linking to Thomas (none / 0) (#30)
by roystgnr on Tue Sep 18, 2001 at 06:20:35 PM EST

It's buried a few FAQs deep, but there is information on how to make permanent links to resources at thomas.loc.gov.

Granted, doing so is needlessly a PITA, but it is possible.

[ Parent ]

Pork Barrell Politics - The Fishing Observer Fund (4.00 / 1) (#22)
by liquidweb on Tue Sep 18, 2001 at 04:10:16 PM EST

I think it should be noted that the official record of this bill states that this portion of the original bill was STRUCK OUT as follows:

[Struck out-] FOREIGN FISHING OBSERVER FUND [-Struck out] [Struck out-] For expenses necessary to carry out the provisions of the Atlantic Tunas Convention Act of 1975, as amended (Public Law 96-339), the Magnuson-Stevens Fishery Conservation and Management Act of 1976, as amended (Public Law 100-627), and the American Fisheries Promotion Act (Public Law 96-561), to be derived from the fees imposed under the foreign fishery observer program authorized by these Acts, not to exceed $191,000, to remain available until expended. [-Struck out]

Really changes just how pork-barrell this act may have been.

Good. The less pork the better... (none / 0) (#28)
by hillct on Tue Sep 18, 2001 at 04:44:59 PM EST

I was working from the list of accepted amendments on thomas.loc.gov (aparently not updated at that point) when I was writing this piece. I'm glad to see that at least a few of the riders got thrown out.

:-)

--Got Lists? | Top 31 Signs Your Spouse Is A Spy
[ Parent ]
Other Words (4.40 / 5) (#25)
by DarkZero on Tue Sep 18, 2001 at 04:33:00 PM EST

Then again, if we grant great powers to men of principle who we have trusted to lead us in times of national turmoil, and they don't loose sight of the righteous goal in front of them; then perhaps true good will come of this. Only time will tell. So in other words, if we're magically teleported to Fantasy Land, where politicians are moral, intelligent people and American citizens vote based on merit instead of party affiliation, everything will turn out alright. Please forgive the analogy, but the plane to Fantasy Land has just crashed. Instead of rising above the average man and appearing as something better, such as GOOD AND MORAL LEADERS, our politicians have shown the absolute worst human reactions to terrorism, such as permanently tearing away our rights in favor of fleeting safety and making rash, emotional judgements, while the average man, and in fact the average New Yorker (of all people), is out giving blood, helping to remove rubble in an almost hopeless struggle to save a few more human lives, and showing courage and strength in the face of danger. Our politicians have displayed every expected and infinitely stupid natural human reaction to terrorism, while the average man has risen above it. That's very disappointing, but not surprising in the least.

Apoligies (3.00 / 1) (#26)
by DarkZero on Tue Sep 18, 2001 at 04:35:42 PM EST

Allow me to correct that. I seem to have pressed the wrong button. :(

Here is the post as it was meant to be formatted:
Then again, if we grant great powers to men of principle who we have trusted to lead us in times of national turmoil, and they don't loose sight of the righteous goal in front of them; then perhaps true good will come of this. Only time will tell.

So in other words, if we're magically teleported to Fantasy Land, where politicians are moral, intelligent people and American citizens vote based on merit instead of party affiliation, everything will turn out alright.

Please forgive the analogy, but the plane to Fantasy Land has just crashed. Instead of rising above the average man and appearing as something better, such as GOOD AND MORAL LEADERS, our politicians have shown the absolute worst human reactions to terrorism, such as permanently tearing away our rights in favor of fleeting safety and making rash, emotional judgements, while the average man, and in fact the average New Yorker (of all people), is out giving blood, helping to remove rubble in an almost hopeless struggle to save a few more human lives, and showing courage and strength in the face of danger. Our politicians have displayed every expected and infinitely stupid natural human reaction to terrorism, while the average man has risen above it. That's very disappointing, but not surprising in the least.



[ Parent ]
Ahem... (none / 0) (#27)
by DarkZero on Tue Sep 18, 2001 at 04:38:34 PM EST

Yes, before someone makes a reply saying something similar, I AM making an ass out of myself with typos today. It's an off day, I guess. It should be spelled "Apologies".



[ Parent ]
Union workers in NYC (none / 0) (#34)
by JonesBoy on Wed Sep 19, 2001 at 09:44:00 AM EST

I have spoken to some people, and the unions are upset with a lot of the senior workers. Apparantly, when they were looking for volunteers for the cleanup in NYC, only the LEAST senior people volunteered. Those guys you see working 24 hours a day, breaking their tails are the poor schleps that get the least pay and protection from their unions. The more experienced workers were waiting for their time and a half offer before lending a hand.

I guess in any job, power not necessarily corrupts, but taints our aditudes toward right and wrong.


Speeding never killed anyone. Stopping did.
[ Parent ]
Giving Big Business Another Leg Up? (5.00 / 1) (#36)
by threemile on Thu Sep 20, 2001 at 12:58:13 AM EST

With wiretapping and internet surveillance now available under the guise of imposed threats to public safety, a possible conflict of interests arises between the government and labor unions (a given truth for this scenario is that the Bush govt holds corporate gain as one of its highest priorities). Some of the largest participants and organizers of activity for the IMF/WTO/G8 protests are labor unions. Cities hosting these conferences view the protests as threats to public safety. Does this open the door for government agencies to "spy" on labor union activity in the name of public safety? Will keeping tabs on all labor union communication shed light on which "anarchist" will throw a brick? Probably not, but I bet it would be deemed reason enough to listen. Then the question arises: what is done with the information gathered? Who controls its release or use?

Combating Terrorism Act of 2001 - Analyzed | 36 comments (25 topical, 11 editorial, 0 hidden)
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