BILL MAKES STEALTH ATTACK ON PRIVACY

First, there were the British officials who searched, Whenever they chose,
the homes and businesses of the American colonists. The helpless fury these
searches caused led to our Fourth Amendment to the Bill of Rights. That
amendment requires that law-enforcement agents, to obtain a search warrant,
must show that there is probable cause that a crime has been or will be
committed. They must also list in the warrant the specific persons or
things to be searched.

Then the imperious J. Edgar Hoover authorized what were called "black- bag
jobs" - secret, warrantless searches by FBI agents in the name of national
security. According to the Senate's Church Committee report, there were
hundreds of "black-bag jobs."

Now, Sen. Orrin Hatch of Utah, or his staff, has slipped into a
methamphetamine bill - which passed the Senate on Nov. 19,1999, by
unanimous consent - a provision that brutally undercuts the privacy
protections of the Fourth Amendment. I've asked the staff members of the
few senators who support civil liberties whether those senators knew what
they were voting on, and I'm told that it went right by them - except for
Sen. Patrick Leahy of Vermont.

Hatch's provision would allow federal law-enforcement agents to search your
office, home or apartment while you're away, seize or copy things, and not
tell you what they've taken for 90 days. Indeed, they could ask a judge to
extend the period during which you're not notified for many more days.

You would only find out what they've taken or copied if they decide to
prosecute you. The way the provision is worded tells you how sneaky it is.
It's called "Notice Clarification." The clarification is that the raid is
secret, carried out while you're away, and you don't get any notice of it
until 90 days or more later.

There's more. If the federal agents take something that is "intangible,"
they don't even have to inform you about what they have seized. For
instance, they can read what is on your computer screen and copy it. That's
"intangible" material.

What happens if they make a copy of the hard drive of your computer?
Georgetown University law professor Paul Rothstein tells Lawyers Weekly
that "that's also probably intangible."

In the first wiretapping case before the Supreme Court Olmstead vs. United
States (1928) - Justice Louis Brandeis warned ominously that the day would
come when the government would be able to know whats in your private papers
without your knowing that they'd found them.

As Jim Dempsey, a privacy expert for the Center for Democracy and
Technology, points out, under this provision, "in the age of computers, it
is possible for the government to copy a great deal of sensitive evidence
without disturbing anything and without the subject knowing."

This subversion of the Framers' clear and original intention in the Fourth
Amendment will make life easier for government prosecutors. As Professor
Paul Rothstein notes, "You may not find out until right at the time of
trial about evidence, and that puts a defense lawyer at a disadvantage."

I am told that the president and the Justice Department support this
assault on the Constitution, but the department says it has reached no
decision yet. In any case, defense attorney Stephen Glassroth notes, "Those
behind the provision are trying to get in the back door something they
couldn't get in the front."

The "Notice Clarification" provision has not yet passed the House. As of
this writing, it's still before the Judiciary Committee chaired by Henry
Hyde of Illinois. Bob Barr of Georgia - the most vigilant defender of
privacy in Congress - is trying to get it killed.

But even if the House does not approve this provision, Hatch or another
member of the Senate can slip it into an omnibus Senate-House conference
report on appropriations bills for multiple federal agencies. Because a
conference report is an agreement between the two chambers, it cannot be
amended on the floor of the House or the Senate.

Bob Barr, Rachel King (of the American Civil Liberties Union) and other
protectors of the Fourth Amendment are watching very closely to detect any
attempt to sneak this provision into a final bill that the president - who
is so often in contempt of the Constitution - may sign.

Benjamin Franklin said, "Those who can give up essential liberty to obtain
a little temporary safety deserve neither liberty nor safety." Tell that to
your representatives and senators before it's too late.

Syndicated columnist Nat Hentoff is an authority on the First Amendment and
the rest of the Bill of Rights. Copyright: Newspaper Enterprise Association