Feds Must Justify Snooping Tactics

WASHINGTON--Federal investigators may soon have to tell how they've been using their expanded surveillance powers since the terrorist attacks.

A federal judge has set a January 15 deadline for the Justice Department to answer a Freedom of Information Act request seeking such disclosure. The request was filed in August by the Electronic Privacy Information Center and the American Civil Liberties Union. They subsequently sued, saying that the government has ignored their request.

"We're definitely pleased that the judge set a specific deadline for compliance and we're hoping that the Justice Department will take the opportunity to turn over the records," says Jameel Jaffer, ACLU staff attorney.

New Tools, Clout

Hoping to prevent future terrorist attacks, Congress passed the Patriot Act, which gives the government new tools for gathering personal information about U.S. residents and citizens.

Police and the FBI can now obtain a so-called pen register order permitting them to monitor a suspect's Web surfing. They can retrieve any URLs accessed and any addresses where e-mail has been sent. Investigators can also use a trap-and-trace surveillance technique to record the senders' addresses on a suspect's incoming e-mail, but not to read its content.

"These powers are extremely broad," Jaffer says. "There is a danger that powers framed as broadly as these will be abused."

The Justice Department claims to have identified 300 pages of material that answers the request, according to David Sobel, EPIC's general counsel. He says the DOJ is now determining whether to release it.

Withholding basic information on how investigators are implementing the Patriot Act is problematic, Sobel says. "We think it is important to establish the principal that information needs to be made public," he says.

What's Classified?

House Judiciary Committee Chairman James Sensenbrenner (R-Wisconsin) made a similar inquiry into the use of the Patriot Act's new powers. While Sensenbrenner said he was satisfied with the answers he received, privacy advocates object to the government's withholding of some of the information under the label "classified."

"If we had been asking about information that would reveal the specifics of an ongoing investigation, than that would be classified," EPIC's Sobel says. "That's not what we are asking for."

EPIC and the ACLU want comprehensive statistical information on how many times new powers have been used. For example, they have requested data on how many times the government has ordered ISPs to release information under the Patriot Act. Also, they'd like to know how often the FBI has wiretapped American citizens and intercepted their e-mail.

In addition, they want a copy of the guidelines the FBI sent to its agents on how to implement the new tools.

"The release of this kind of information isn't going to jeopardize investigations," ACLU's Jaffer says.

Sobel notes that the FBI released three documents that give the bureau's internal description of the Patriot Act and outline the new authority for employees. He called the description "straightforward" and similar to other things the government has said.

More Surveillance Sought

The Justice Department may be preparing for a second round of counterterrorism legislation. The government has already proposed further expansion of surveillance powers, including those of the new Information Awareness Office, Jaffer says.

Before approving more surveillance powers, citizens need to know whether the government is using its current authority responsibly, Jaffer says. If the government is imposing those powers too broadly, the civil liberties groups may seek ways to narrow or repeal them, he adds.