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Mark Grossman

New Anti-Terrorism Law

28 February 2002

In many ways, our cherished Bill of Rights, which limits government power, is about protecting us from abuses by our own government. In wartime, we have a history of giving our government more power when foreign threats loom larger than the threat of abuse from our own government. We're there again.

Recently, Congress passed the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). To say that it's controversial is a bit of understatement.

For the most part, I like this new law. I say this as an American who doesn't particularly like government intrusion into my life and who recoils at the thought that somebody other than my intended recipient might be reading my e-mail. However, this is wartime and we're all presumably on the same team against common enemies.

I was recently a guest on a radio telephone call-in show discussing the PATRIOT Act. One particular caller was adamant in his opposition to this new law.

I asked him, "Who do you think is a bigger threat? Is it our government or Al Qaeda?" He said, "Our government."

Now, at that point, I knew that further discussion with him was pointless. Changing his mind on something so fundamental to his belief system would have been like persuading him to change his religion. Some things can't be done.

To those of you who think that our government is a greater threat to us than terrorists, your bottom line is that the PATRIOT Act gives the government more power and you're going to be against it. I could point out that our Constitution wasn't meant to be a suicide pact, but you probably wouldn't see my point.

Every poll clearly shows that most Americans see terrorism as a bigger threat than John Ashcroft. If you're part of this majority, the issue becomes did Congress strike a proper balance with this new law.

It's a huge law (about 340 pages) and it makes changes to 15 different statutes. The focus of this column will be on how it affects online activities.

The PATRIOT Act introduces some innovative provisions concerning surveillance. For example, recognizing that people commonly communicate a number of ways, including home and work phones, cell phones, pagers, faxes, e-mail and instant messengers, the Act expands surveillance ordered by a court so that the order is specific to the person rather than to the telephone line.

Another section provides that the government can access voice mails with a court order in the same way it currently accesses e-mails and authorizes nationwide access for the government with a single search warrant for voice mails.

As for Internet Service Providers (ISP) like Earthlink, the Act permits a subpoena to require an ISP to disclose the means and source of its payment, including any bank account or credit card numbers.

It also permits an ISP to voluntarily disclose stored electronic communications if the ISP reasonably believes that an emergency involving immediate danger of death or serious bodily injury to a person requires such immediate disclosure.

Another provision deals with what I call the Kinkos' issue. The problem is that bad guys will go to an Internet café or a place like a Kinkos, where they can anonymously buy some time on a computer to send and receive e-mails and other electronic communications.

The Act now allows persons "acting under color of law" to intercept communications if the owner of a computer (i.e. Kinkos) authorizes it and the person acting under color of law is involved in a lawful investigation.

When the law does require a search warrant for e-mail, the Act now permits a single court having jurisdiction over the offense to issue a search warrant for e-mail that would be valid everywhere in the United States.

Privacy advocates like the Electronic Frontier Foundation ( are generally opposed to most if not all of the Act's provisions. To some extent, this is an extension of the concerns people had before 9-11 about online privacy.

The difference is that before 9-11, most of the discussion had to do with private information gathering about our online activities. I know that I'm troubled by surreptitious collection of information about my clickstream (where I click and where I go online) and other private information gathering that goes on in the online world.

One of the more egregious invasions of online privacy is done by seemingly innocuous software you might install that's surreptitiously using your Internet connection to "phone home" with information about your online activities. People have aptly dubbed this type of software "spyware."

While the privacy debate is an important one, and an area where a balance must be struck through appropriate Federal legislation, we shouldn't confuse this domestic debate about commercial information gathering and fighting a war.

The PATRIOT Act is mostly about emergency wartime measures. To the extent it might be overreaching, we'll need to modify it. That's something we can address over time while we're winning the war.

Meanwhile, let's give Congress and the Administration credit for acting quickly and in a bi-partisan fashion in a time of crisis. I happen to trust our culture, our civilization and our way of doing things enough to think that we'll properly work out the details over time and that the PATRIOT Act is not the first step toward a police state.

I would like to acknowledge the research of Steven Canter for this article.

New Anti-Terrorism Law is republished from
Mark Grossman
Mark Grossman