BILL IS A SNEAK ATTACK ON OUR DIGITAL LIBERTIES

THE uproar was fierce but quick last summer when an internal Clinton
administration document leaked out, revealing yet again the administration's
hostility to fundamental liberties. The idea was to give law enforcement the
authority to secretly break into people's homes and businesses to conduct
searches, including discovering what was on computer hard disks or even
plant rogue programs on the machines to record keystrokes or transmit data
to the government.

The idea was considered a legislative non-starter, and it sank out of sight
- -- or so we thought. But this administration and its congressional allies
are nothing if not persistent.

Like burglars in the dead of night, they've quietly attached the proposal to
several pieces of legislation, including an utterly unrelated bankruptcy
reform act. Like masters of deception, they've hidden it in language that no
lay person could possibly unravel.

``We've never had a hearing on these provisions,'' says U.S. Rep. Bob Barr,
R-GA, a vocal opponent of what are being called the ``secret search''
portions of the legislation. ``They're very, very substantive, and they're
being snuck into legislation without a chance to have light shed on them.''

It's happened before. In 1998, Congress passed a law that included a
provision greatly expanding law enforcement's wiretapping authority -- a
provision that lawmakers had explicitly rejected when it stood on its own.

The most immediate threat this time appears to be in the bankruptcy
legislation, which goes by the designation HR 833. The House and Senate have
passed differing versions of the bill, and it is now in conference
committee. There, lawmakers might still be persuaded to strip out the secret
search proposal and other attacks on the Bill of Rights, which appear to
have been copied wholesale into the Senate version from an unrelated
anti-drug bill that's not quite as far along in the legislative process.

In a section titled ``Notice; Clarification'' the bankruptcy and anti-drug
bills say that ``Section 3103a of title 18, United States Code, is amended
by adding at the end the following new sentence:

`With respect to any issuance under this section or any other provision of
law (including section 3117 and any rule), any notice required, or that may
be required, to be given may be delayed pursuant to the standards, terms,
and conditions set forth in section 2705, unless otherwise expressly
provided by statute.' ''

That obscure language, according to experts who've studied it, would
dramatically expand the government's authority to conduct what are called
``sneak and peek'' searches.

The government ``could enter your house, apartment or office with a search
warrant when you are away, conduct a search, seize or copy things such as
your computer hard drive and not tell you until months later,'' the American
Civil Liberties Union and National Association of Criminal Defense Lawyers
recently wrote in a letter to members of Congress.

With equally obscure language, the legislation would ``relieve the
government of giving the property owner an inventory of seized intangible
items, such as the contents of your computer,'' according to the letter from
the ACLU and defense attorneys.

``The law normally requires that an inventory of seized items be prepared on
the spot and presented to the person whose property has been seized.
Combined with the secret search provision, it is doubly dangerous because
the government could enter your home when you are not present, look into
your computer files and never tell you they were there.''

The bankruptcy bill's offensive provisions, passed by the Senate with no
debate, appear to be identical to language in the ``Methamphetamine
Anti-Proliferation Act'' (HR 2987), an anti-drug bill designed to go after
people who operate laboratories that manufacture speed.

The proposed laws aren't content to eviscerate what's left of the Fourth
Amendment; they take a buzzsaw to the First Amendment, too. On these other
provisions, at least, the lawmakers who favor them aren't trying to sneak
something past their colleagues.

In a triumph of vagueness, the bills would ban direct or indirect
advertising of drug paraphernalia and illegal drugs. You wouldn't be allowed
even to post mere hyperlinks to sites containing information the government
didn't like.

It would also be illegal to teach or disseminate any information, ``in whole
or in part,'' about the manufacture of illegal drugs. The ACLU asks
reasonably, ``If use of a Bunsen burner is necessary for producing a
particular type of controlled substance, is teaching its proper use a `part
of' the knowledge required, and would you be subject to liability for
teaching someone that information?''

In the anti-drug bill, Internet service providers would be required to
remove allegedly offending materials at government request. Forget due
process, and who cares about that pesky First Amendment, anyway?

There's still time to thwart these brazen attacks on liberty, but not much.

Since the bankruptcy bill is in conference committee, it's fairly close to
final passage. Call your U.S. representative and senators and demand that
they call on the conferees to leave the Bill of Rights alone.

The Senate has already passed the methamphetamine bill. The House Judiciary
Committee is scheduled to look closely at it on Wednesday, says Barr, who
intends to try to strip out the big-brotherish language.

Here, again, you should call your representative, particularly if he or she
happens to be on the Judiciary Committee. California members of the
committee include Rep. Zoe Lofgren, D-San Jose; Mary Bono, R-Palm Springs;
Howard L. Berman, D-Mission Hills; Elton Gallegly, R-Oxnard; and James E.
Rogan, R-Pasadena. I'll post a list, with phone numbers, on my eJournal Web
site (noted below).

Make these calls. Stop this sneak attack on liberty.

Dan Gillmor's column appears each Sunday, Tuesday and Friday. Visit Dan's
online column, eJournal ( http://weblog.mercurycenter.com/ejournal )