Legal limits for wiretaps
JUST AS CONGRESS was about to break for its August recess, President Bush pressured it into passing a bill allowing widespread wiretapping of Americans' phone calls and e-mails without judicial warrants. The only saving grace in this odious legislation is that it expires in February. Now, two committees in the House of Representatives have drawn up a new bill that establishes some degree of judicial oversight on this surveillance. If the House and Senate cannot come up with an even stronger bill, it would be better to let the current law die an unmourned death in February.
Last summer's law legalized the warrantless wiretapping that the administration began on the president's order - in secret - after Sept. 11. In fact, the bill passed by Congress in a rush that justifies its low approval ratings gave the administration even broader powers than it had taken on its own. Under the president's secret program, warrantless eavesdropping was permitted only when one of those involved in a communication was a suspected terrorist. There is no such requirement in the August legislation.
Also, under the president's order, telecommunications companies participating in the wiretapping did so at their own legal risk. The bill Congress passed granted them immunity from lawsuits by individuals who believe their privacy has been violated.
No one is proposing to block all wiretapping of terrorism-linked communications. But a 1978 law sets out a flexible process for judicial oversight of taps in which investigators can start a tap and then wait as long as 72 hours before getting a warrant if time is of the essence. By railroading Congress into approving the bill last summer without hearings, the administration has never had to explain to the American public why the 1978 Foreign Intelligence Surveillance Act is not a workable framework for electronic surveillance.
To its credit, the House drops the immunity provisions for the telecommunications companies in the new bill and carries its own expiration date, two years from passage. It also requires warrants from a special court set up under the 1978 law for surveillance of individual calls or e-mails to persons in the United States. But the bill would permit "basket" or "bundle" warrants for interceptions of communications by groups of people for a year, subject only to some scrutiny by the special court. This provision could be a loophole for overzealous eavesdroppers.
The pending expiration of the existing law in February shifts leverage to Congress. It should make sure that any surveillance legislation it approves does not detract significantly from the privacy protection afforded by the 1978 law - not to mention the Fourth Amendment's prohibition of "unreasonable searches and seizures."
