Only Necessary Wiretaps

In his Jan. 2 op-ed column, "Raid on Rights," Nat Hentoff is mistaken about
a change in the law that allows federal officials to wiretap conversations
of a given suspect regardless of the phone the suspect uses.

First, Mr. Hentoff suggests that so-called roving wiretaps are a new idea.
In fact, they have been legal for more than a decade. In 1986 Congress
authorized the roving wiretap to deal with the sophisticated criminal who
tries to avoid electronic surveillance by constantly switching phones. This
law allows law enforcement to tap the criminal, not the phone.

Unfortunately, under the 1986 law, officials could use this authority only
if they showed that the suspect was changing phones with the intent of
thwarting surveillance. But that requirement forced law enforcement to
determine what was going on in the criminal's mind before a court would
issue a wiretap order. So now, instead of requiring intent, the modified
law requires a showing that the suspect's actions have the effect of
thwarting surveillance. Nothing else changed.

Second, Mr. Hentoff writes that the FBI can listen to the roving tapped
phones "even if the owner of a phone and his or her family -- and not the
target -- are using it." That is incorrect. The law requires that federal
officials identify the specific suspect in their request to the court and
listen in only on those criminally related conversations in which the
suspect is a party. In fact, unlike a regular wiretap, roving surveillance
must end once the suspect hangs up -- even if the co-conspirators stay on
the line. In this regard, roving wiretaps are actually a more limited
intrusion upon privacy than "regular" wiretaps.

Third, Mr. Hentoff leaves the misimpression that the roving wiretaps are
used frequently. The statistics do not support his assertion. Of all of the
federal electronic surveillance requests reviewed in the Department of
Justice last year, less than one percent involved roving wiretaps -- and
almost all of those were against major drug dealers.

Wiretapping, properly used under judicial supervision, is an important law
enforcement tool. It not only helps law enforcement catch criminals after
they commit additional crimes, it helps us prevent criminals from
committing the crime at all. For example, court-authorized wiretapping
enabled the FBI to prevent terrorists from blowing up the bridges and
tunnels leading into New York City in 1994.

As a lifelong advocate for the protection of privacy rights, I agree that
government should not have the ability to intrude unreasonably on an
individual's privacy. But I also understand that law enforcement must have
the technical tools to keep pace with the more sophisticated criminals we
now must confront. The recent wiretap change is a relatively minor
adjustment to an existing statute that serves to protect privacy rather
than intrude upon it.

ERIC H. HOLDER JR.
Washington

The writer is deputy attorney general of the United States.