Commentary

Democracy Betrayed Means New Wiretapping Powers

By Solveig Bernstein
October 2, 1996

In the wake of the TWA plane crash and Atlanta bombing, President Clinton and Congress scrambled to do something, anything, about terrorism. But somewhere in the back of our minds lurks an ideal left over from civics class: Elected representatives should deliberate carefully before they pass important new legislation. Last week, the process broke down. Oppressive wiretapping provisions that Congress had voted against earlier this session were tacked on to an omnibus appropriations bill that must be passed before Congress goes home.

The omnibus bill would strip out requirements that the FBI report to Congress on the agency uses broad new powers under the 1994 Communications Assistance in Law Enforcement Act (CALEA). CALEA gave the FBI extraordinary power to demand that telephone companies rebuild their networks to make wiretapping easier. The FBI is already straining at the bounds of its authority, at one point demanding to be able to tap one in every hundred phone conversations simultaneously. Rep. Bob Barr (R.-Ga.) has fought to keep the FBI accountable. But the outcome of this battle is still uncertain.

Other measures proposed for passage in the omnibus bill include a provision allowing law enforcement officers to use “roving wiretaps” without getting permission from a court to do so. This means that the police could tap your phone without a warrant if they saw someone they think might be a criminal enter your house or place of business. Another proposed rule would allow investigators to use “emergency” wiretaps, which can be used for 48 hours without a warrant, even when there is no emergency. Both the proposed new rules go too far in eroding rights to privacy, without good reason.

The suggested changes to the “emergency” rule would vastly expand the types of cases in which police could wiretap without a warrant. Currently, the police can use “emergency” wiretaps in cases involving organized crime, national security, or to prevent immediate risk of injury. The new rule would allow emergency wiretaps to combat anything the government might call “terrorism,” even when there is no immediate risk of injury or a threat to national security. But judges are available to authorize wiretaps 24 hours a day. There is no reason for police to wiretap without a warrant for two entire days, when there is no immediate risk of injury. Emergency wiretaps, if they are allowed at all, should be reserved for true emergencies.

Supporters of the new roving wiretap rule have succeeded in concealing its impact from the public. The media has widely reported that the roving wiretap proposal would allow investigators to eavesdrop on criminals who are moving from phone to phone to evade interception. But federal law already permits this type of wiretap — when investigators have satisfied a court that it is necessary. Requiring police to get the permission of a judge is essential to protect the privacy of the innocent. According to yearly reports filed with Congress by the Administrative Office of United States Courts (AO), over 80 percent of calls intercepted by wiretaps are innocent; roving wiretaps intercept an even higher percentage of calls placed by innocent parties who are not suspected of any crime. The new proposal would do away with judicial safeguards.

Absolutely no evidence has been presented that doing away with the safeguards on the use of roving wiretaps would have prevented any terrorist acts, or any other crimes. During the entire Clinton administration, not one investigator’s request for any type of wiretap has been refused. So why are law enforcement interests pressing for the change — and a bigger budget, while they’re at it?

The natural tendency of any bureaucracy is to expand. If a government program fails, the administrators insist this was not their fault — they simply needed more money, more power, and more guns. In the wake of the TWA disaster and the Atlanta bombing, running true to bureaucratic form, law enforcement interests promise they can offer us perfect security, if only we give them more power. The Senate appears ready to play into their hands, even though polls show that 70 percent of Americans think wiretaps should be banned.

But giving the police expanded roving wiretap powers is no guarantee that no more bombs will go off. The AO reports show that most wiretaps are used to investigate morals offenses such as drugs and gambling; only a bare handful are used to investigate crimes involving bombs, guns, or arson. And we live in a big, mobile, densely populated world. Obviously, some crazies will slip through. The real question is, what liberty will the police ask us to sacrifice next time a bomb goes off? And the time after that? And will Congress and the Senate even pause to debate the matter first?

Benjamin Franklin said, people who “give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” If we are not more rational in our approach to terrorism, we will have neither freedom nor saftey.

Solveig Bernstein is assistant director of telecommunications and technology studies at the Cato Institute.