CONGRESS MUST RESTRAIN LAW OFFICERS FROM STILL FURTHER ELECTRONIC SPYING

The federal government keeps asking for more power to spy on us. That power
would not be unrestricted, but we are told it is necessary so that law
enforcement can make sure we are safe.

Last year the government attempted to institute a rule that would have
required banks to track their customers' transaction patterns, but those
attempts brought such a public outcry that the proposal was scrapped.

Now the Justice Department has formally asked for the ability to
surreptitiously break into our homes to discover the keys to our personal
computers' encryption to monitor our private transmissions. And the other
day the Federal Communications Commission gave the FBI a present, approving
a wish list that would extend the bureau's authority to monitor cellular
and digital telephone calls.

WITHOUT A DOUBT the government is justified in wanting law enforcement to
be able to manipulate the ever-changing technology we live with in order to
stop the criminals among us who would take advantage of it. But this need
to deter crime and crack cases demands tight controls. The criminals won't
be the only ones to suffer if innocent civilians lose their implicit right
to privacy. The founders of this republic were well aware that too much
power in the hands of government corrupts and endangers our freedom.

Yet knowing that there must be a balance between the needs of law
enforcement and the people's expectation of privacy in this technological
age, Congress passed the Communications Assistance for Law Enforcement Act
in 1994. Congress hoped to preserve the intrusive wiretap capabilities of
law enforcement without expanding that power.

The parties forced to yield the most at the time - privacy advocates and
businesses required to develop surveillance equipment to accommodate police
- - accepted what they thought was a responsible compromise. And it seemed
then as if law enforcement was on board too. FBI director Louis Freeh said
all of the right things when he testified before Congress.

But ever since then, the bureau, with the support of the Justice
Department, has tried to use the law to expand its snooping power beyond
what innocent people and businesses should have to tolerate.

``The Department of Justice and the FBI are on the verge of achieving a
long-term goal - the authority to dictate specific surveillance features to
the nation's telecommunications systems,'' privacy advocates warned in a
message to the Federal Communications Commission last month.

The FBI had petitioned the FCC, which is empowered to implement the law, in
March 1998, seeking approval of nine additional surveillance procedures,
including the ability to track cellular or digital telephone customers from
the inception of a call until its conclusion and the capacity to continue
monitoring parties on conference calls even after the subject of any
wiretap order has hung up.

And the other day the FCC approved six points on the nine-point wish list.

Law enforcement surveillance had already been enriched by the technological
revolution, especially in light of industry's commitment to give access to
the content of a suspect's communications. Telephone companies, for
example, are obligated to be able to isolate and intercept calls, identify
the callers, turn over the information required by a warrant and protect
the security of information not authorized by the intercept.

The FBI had wanted telephone companies to be able to track the exact
location of their cellular customers, but the FCC declined to force them to
do that.

Still, the new rules represent a further invasion into the private spaces
of the American people.

In a similar vein, the Justice Department wants the authority to allow
federal agents to break into your house and disable the security on your
personal computer. In this prelude to the issuance of other search
warrants, law enforcement could sneak past access codes and encryption on
personal computers.

Law enforcement officials have argued that this authority is necessary to
do their jobs. ``Police soon may be unable through legal process and with
sufficient probable cause to conduct a reasonable and lawful search or
seizure, because they cannot gain access to evidence being channeled or
stored by criminals, terrorists or spies,'' FBI director Freeh warned
Congress two years ago.

To that end, the bureau is urging Congress to create a national key escrow
system that would give the FBI and others the capability of decoding
encryption. We have said before we would not willingly turn over our
decoding keys to the government and support passage of the Security and
Freedom through Encryption Act that opposes such an expansion of spy power.

Furthermore, we can see no difference between doctoring a computer and
bugging a telephone. With this new authority, law enforcement would have
the power to go through e-mail, financial records and other information
stored on the computer.

THE FOURTH AMENDMENT protects us from unreasonable search and seizures, and
the law has developed so that law enforcement can present its reasons for
seeking a search warrant to a judge. For compelling reasons, the judge
would approve this intrusion.

No government agent should be allowed to enter a private home without a
search warrant. Officials from the police or prosecutor's office know which
judges are sympathetic to their claims. We find it highly unlikely that a
judge would deny a legitimate request to allow surveillance of computer
information.

Neither law nor tradition requires citizens to take positive action to
assist the government in spying on them. When the House Government Reform
and Oversight Committee considers these surveillance issues this fall, we
hope the members remember that.