Ari Schwartz: Does the anti-terrorism law compromise civil liberties?
Ari Schwartz is an associate director of the Center for Democracy and Technology, working to increase privacy protection in the digital age. He is involved in working to expand access to government information through the Internet. A leading expert in privacy on government Web sites, Schwartz has testified before Congress and executive branch agencies on the issue.
CNN: Welcome to CNN.com Ari Schwartz. Thank you for being with us today.
ARI SCHWARTZ: Hello, and thanks for having me. I'm glad I could be here today.
CNN: Which provisions of the new anti-terrorism law are civil libertarians most concerned about?
SCHWARTZ: The issues that we focus on are communications, particularly electronic communications. While there are other groups that are focused on immigration issues, etc. In terms of the electronic communications area, we're very concerned about the Internet provisions and wiretap provisions, which do not set standards for federal agents and restrict the oversight that is prevalent and exists in other telecommunications. By oversight, I'm speaking specifically about judicial review for areas of content.
CHAT PARTICIPANT: Do you think that the Supreme Court will take action if they think that the new laws restrict our freedoms?
SCHWARTZ: Well, that's a good question. In the first amendment area, for freedom of speech issues, people would bring a facial challenge (directly on the law itself) for this kind of sweeping new authority. But in this kind of bill which restricts our fourth amendment rights (against unreasonable searches and seizures), it's more difficult to bring a facial challenge, and that's because you're deciding whether it's reasonable or unreasonable, and therefore you need a context. So, it's unlikely that people will bring a challenge directly on that law, but -- and this is very worrisome -- there may be a challenge brought by a defense attorney to suppress evidence in an important case, because the evidence was collected unconstitutionally, because this law allowed government agents to do so. So that means evidence will be thrown out of cases, because this law is too overreaching. These are exactly the fears we've had, that while we'd like government agents to have more powers, they should have some oversight to assure constitutionality.
CHAT PARTICIPANT: I think that if as a citizen you have nothing to hide, then you shouldn't be worried about new security measures. Do you think some people are overreacting to this idea?
SCHWARTZ: Well, the problem with that point is that we've seen in the past that authority given during wartime has been abused. For example, some of the authorities given during WWII led to the tracking of Martin Luther King during the civil rights movement and Viet Nam. The internment of Japanese-Americans during WWII is another example where innocent people lost their civil liberties simply because of an overreaching authority. It doesn't have to do with having nothing to hide, but having checks and balances. We have to make sure that these powers are not abused. We can ask, why not give these powers, then have a judicial review over them? But this new law takes away some of the protections that have been built up over time, rather than coming up with new and creative solutions, with checks and balances.
CHAT PARTICIPANT: What limitations, if any, are being placed on the roaming wiretap provision in the bill? What if, for instance, someone calls a business to inquire about a product not knowing that the business is under investigation. Would the innocent, legitimate caller to the business be wiretapped also?
SCHWARTZ: Yes, for that particular call, it would definitely be wiretapped, and could eventually cause a later investigation, simply because they called a suspect. Also of concern is that this provision would allow government agents to track any individual that used the same communication resources as the suspect. So if the suspect uses a university lab computer or library public terminal, government agents could track the use of everyone who is logging in from that same computer lab or library. Or if a known suspect is known to use a certain set of payphones, all activities of innocent people using those phones will be monitored and could be stored indefinitely. This is much different than any previous wiretapping we've had, where you have to know the suspect is on the line.
CHAT PARTICIPANT: Ari - is it true that Congressman Bobby Scott filed an Amendment to the bill that only allowed tapping of phone lines when a suspect was present, and that this amendment shot down by the Republicans?
SCHWARTZ: It is true that both Bobby Scott and Senator Russ Feingold introduced amendments that would have limited the authority to make sure that the suspect is present, as is the case with the current law on criminal roving wiretaps. However, these amendments were shot down on procedural grounds, and a real vote was never taken, which shows the failure of the democratic process in this case, because no amendments were ever taken up, no real floor debate was ever held on the major issues, and the decisions were made by the leadership and the president before the bills went to the floor. So, we don't really have a consensus bill here, we have a bill that was driven by the politics of the moment.
CNN: Don't some of these provisions only have a lifetime of four years?
SCHWARTZ: Most of the electronic communications surveillance provisions sunset after four years. Some other provisions, most other provisions, last indefinitely, for example, a provision that allows for secret searches and seizures in people's homes. In other words, government agents can break into people's homes to collect evidence, and even if the person is found innocent, they never find out about it. That's different from other provisions. That provision will last indefinitely.
The other provisions will sunset in four years, and will be reviewed at that time. That's our real hope here, is to be able to create a set of facts about how this is being put into place. We hope it's not abused, but we were trying to set up monitoring, to see how the law is used over the next four years. Unfortunately, because so many have no oversight mechanisms, and many are secretive, it may be impossible to weigh the facts in four years.
CHAT PARTICIPANT: Ari- how would you arm our investigators so that they can be effective in detecting violent crimes that could be initiated via the Internet?
SCHWARTZ: We would give many of the same powers that are given in this bill, however, we would ensure that a judge reviews the evidence and determines that there is probable cause to be looking at the suspect, and keeps an oversight record to be sure the power is not abused. We do think that law enforcement should have the ability to look into suspects, to monitor email, to monitor the Internet, but it has to be a reasonable standard that ensures that government agents do not have unbridled authority.
CHAT PARTICIPANT: CNN previously reported that within minutes of the 9/11 attack, the FBI intercepted congratulatory calls by numerous individuals, whom are now in custody on immigration or material witness warrants. This indicates to me they were already doing massive wiretaps prior to the attack. What is your take on this?
SCHWARTZ: That's absolutely true. They have had the authority to do taps, and in fact they were tracking three of the hijackers before the attacks, which shows us that the problem is not that they don't have the authority with judicial review, but trouble processing the information they've been getting. Even with the bill, they still have that problem. They need more resources, not more unchecked authority.
CHAT PARTICIPANT: These are different times from the sixties. Do you think the government would abuse these laws now?
SCHWARTZ: Perhaps in the short term they will not, and we think that most investigators are going to use these laws in the way they were meant to be used. However, we have seen throughout our history, that when it is given, soon after, it is abused. We hope to not make this mistake again, by keeping some checks and balances, but allowing for surveillance capabilities. Unfortunately, this law has gone into place that sets up a system ripe for abuse. Maybe not in three months, but certainly within ten years.
CHAT PARTICIPANT: Ari, isn't it sad that we are losing our civil liberties because of those terrorists who are against our liberal view anyway?
SCHWARTZ: Well, that's the ironic point here, and the point that the president has made as well, that we have to be careful not to let the terrorists accomplish their mission, which is to close off our democracy.
CNN: Do you have any closing comments for us today?
SCHWARTZ: I'd like to encourage people for background information to visit our Web site at www.cdt.org We will continue to monitor how this law is implemented, at the same time we're watching other proposals to create a national ID card, and to provide even greater wiretapping authority without checks and balances.
CNN: Thank you for joining us today, Ari Schwartz.
SCHWARTZ: Thanks for having me again, and I hope to join you again soon, on a happier occasion.
Ari Schwartz joined CNN.com via telephone from Washington, DC. CNN provided a typist. This is an edited transcript of the interview, which took place on Tuesday, October 30, 2001.
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