An Officious Big Brother Builds Wiretap Authority

Article excerpt

Liberals and conservatives are forming an unlikely alliance regarding new threats to privacy from the federal government. Use of wiretaps is on the rise, the Clinton administration is asking phone companies to make their new technology even easier to tap and an administration-backed bill would restrict the private use of encryption technology.

Another political stereotype bites the dust. This time, it's the one that says Republicans favor tough law-enforcement techniques, including snooping on domestic dissidents, while Democrats are reliable lovers of civil liberties. It appears instead that the executive branch of the federal government invariably advocates more power for itself, regardless of the party controlling it.

When it comes to wiretapping, "this administration has broken all records," says Robert Ellis Smith, editor of Privacy Journal. "There was a slight decline in 1995 for the first time since 1992, but the total was still the second highest in history."

Recently, the rationale most likely to persuade politicians to grant draconian powers to federal law enforcement has been terrorism. In prior eras, the rationale was child kidnapping. According to David Kopel, research director of the Independence Institute, a free-market think tank in Golden, Colo., legendary FBI Director J. Edgar Hoover drummed up support for his agency by falsely alleging that an unprecedented wave of child kidnapping was in progress. Now the terrorism rationale is yielding first place to manipulation of greater public concern about drugs and gambling.

"The trend is driven by the drug wars in the New York City tri-state area," says Smith. "Without that area, there's actually been a decrease in wiretap requests. But overall, there's been a large increase."

The increase easily could have been even larger. When the Clinton administration submitted its Anti-Terrorism Act of 1996, which was in part a response to the Oklahoma City bombing, it contained clauses giving the FBI extensive new authority for "roving warrants" -- warrants to tap successive phones used by a targeted individual without obtaining a separate warrants" for each phone -- and even for warrantless taps based on "exigent circumstances."

That these did not become law is due in substantial part to the efforts of a conservative Republican who also is a former federal prosecutor, Rep. Bob Barr of Georgia. Informed by Insight that he is a hero to privacy advocates, Barr says: "Ask the FBI -- they don't think I'm a hero! But the fact is, because I was a prosecutor I know how wide the existing federal wiretap authority is and how it can be abused."

Barr tells Insight he uses three criteria to judge federal investigators' requests for new wiretapping authority. These are:

* Has the government made out a case that it needs the increased authority for which it is asking?

* Is the government asking only for what it needs?

* Do the proposed changes include adequate safeguards?

In the proposed 1996 antiterrorism measure, according to Barr, the government failed all three prongs of this fork test.

Says Barr: "What I've said to the administration is, if there are chinks in the armor, if there are shortfalls in the wiretapping authority you have, then show us what the new minimum is and what safeguards you will put in place to keep that from being abused. But don't just use the fact that some shortfall might exist as a pretext to ask for a comprehensive wish list, especially one without safeguards."

At least some sunlight is shed on the sheer numbers of law-enforcement wiretaps, thanks to a legal requirement that the federal and state governments annually report their wiretap requests to the Administrative Office of the Courts. This requirement is found in the so-called "federal wiretap law" or, more accurately, Title III of the Omnibus Crime Control Act of 1968, as amended by the Electronic Communications Act of 1986. …