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Electronic Frontier Foundation Media Release

Proposed Anti-Terrorism Laws Overbroad and Overreaching

All Computer Trespass Treated as Terrorism

For Immediate Release: Wednesday, September 26, 2001

Contact:

Lee Tien, EFF Senior First Amendment Attorney
  tien@eff.org
  +1 415-436-9333 x102
Shari Steele, EFF Executive Director
  ssteele@eff.org
  +1 415-436-9333 x103

San Francisco, California - The Electronic Frontier Foundation (EFF) today condemned portions of the Anti-Terrorism Act (ATA) currently under consideration in Congress which would treat all computer trespass as terrorism.

"Treating low-level computer crimes as terrorist acts is not an appropriate response to recent events," said EFF Executive Director Shari Steele. "A relatively harmless online prankster should not face a potential life sentence in prison."

The ATA includes provisions that dramatically increase the penalties for acts that have no apparent relationship to terrorism. For instance, the bill would add low-level computer intrusion, already a crime under other laws, to the list of "federal terrorism offenses," creating penalties of up to life imprisonment, adding broad pre-conviction asset seizure powers and serious criminal threats to those who "materially assist" or "harbor" individuals suspected of causing minimal damage to networked computers.

Attorney General John Ashcroft asked Congress last week to pass the ATA, formerly known as the Mobilization Against Terrorism Act (MATA), with less than one week of consideration.

EFF believes the ATA would radically tip the United States system of checks and balances, giving the government unprecedented authority to surveil American citizens with little judicial or other oversight.

EFF again urged Congress to act with deliberation and approve only measures that are effective in preventing terrorism while protecting the freedoms of Americans.

"The theme of freedom in the face of terrorist attacks should include a focus on measures that preserve rather than diminish our civil liberties," added Steele.

The DOJ's own analysis of another particularly egregious provision of the ATA points out that "United States prosecutors may use against American citizens information collected by a foreign government even if the collection would have violated the Fourth Amendment."

"Operating from abroad, foreign governments could do the dirty work of spying on the communications of Americans worldwide. US protections against unreasonable search and seizure won't matter," commented EFF Senior Staff Attorney Lee Tien.

Additional provisions of the proposed Anti-Terrorism Act include the following measures:

  • Make it possible to obtain e-mail message header information, Internet user web browsing patterns, and "stored" voicemail without a wiretap order
  • Eviscerate controls on Title III roving wiretaps
  • Permit law enforcement to disclose information obtained through wiretaps to any employee of the Executive branch
  • Reduce restrictions on domestic investigations under the Foreign Intelligence Surveillance Act (FISA)
  • Permit grand juries to provide information to the US intelligence community
  • Permit the President to designate any "foreign-directed individual, group, or entity," including any United States citizen or organization, as a target for FISA surveillance
  • Prevent people from providing "expert advice" to terrorists
  • Extends federal DNA database to every person convicted of a federal terrorism offense which includes low-level computer intrusions
  • Other provisions, whether or not related to online civil liberties

Senator Patrick Leahy has attempted to moderate the ATA through introduction of the "Uniting and Strengthening of America Act" (USAA). While EFF believes USAA would unnecessarily increase law enforcement surveillance powers, it is nowhere near as harmful to civil liberties as the Bush administration's proposal.

For example, the USAA does not increase penalties for low-level computer intrusion. The USAA would retain existing restrictions on wiretaps, including requiring court orders to obtain voicemail messages. However, both the ATA and the USAA would expand FISE to include roving wiretapes. The USAA would also permit disclosure of Title III wiretaps to intelligence officers, whereas the ATA would permit disclosure to any federal employee. The USAA also would require a court order for grand juries to provide information to the US intelligence community, unlike ATA. Provisions of the ATA permitting the President to designate targets for FISA surveillance, preventing people from providing "expert advice" to terrorists, and collecting foreign intelligence on American citizens are not included in the USAA.

EFF's Steele emphasized, "While it is obviously of vital national importance to respond effectively to terrorism, these bills recall the McCarthy era in the power they would give the government to scrutinize the private lives of American citizens."

The ATA and USAA bills come in the wake of the Senate's hasty passage of the "Combating Terrorism Act" on the evening of September 13 with less than 30 minutes of consideration on the Senate floor.


The proposed Uniting and Strengthening of America Act (USAA): http://www.eff.org/sc/leahy_proposal.html

EFF analysis of the Uniting and Strengthening of America Act [coming soon]: http://www.eff.org/sc/eff_leahy.html

The proposed Anti-Terrorism Act (ATA), formerly Mobilization Against Terrorism Act (MATA): http://www.eff.org/sc/ashcroft_proposal.html

EFF analysis of the Anti-Terrorism Act: http://www.eff.org/sc/eff_ashcroft.html

Attorney General John Ashcroft remarks on response to terrorism from FBI headquarters on September 17, 2001: http://www.eff.org/sc/ashcroft_statement.html

The Combating Terrorism Act (S1562) passed by the Senate: http://www.eff.org/sc/wiretap_bill.html

Senator Leahy's testimony on the Combating Terrorism Act: http://www.fas.org/sgp/congress/2001/s091301.html

EFF analysis of the Combating Terrorism Act: http://www.eff.org/sc/eff_wiretap_bill_analysis.html

Why "backdoor" encryption requirements reduce security [PDF]: http://www.crypto.com/papers/escrowrisks98.pdf

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world:
  http://www.eff.org/

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