SENATE NEARS MOVEMENT OF WIRETAP BILL, BUT QUESTIONS REMAIN
Senate Judiciary Committee said it had reached “agreement in principle” with White House on wiretap-related legislation, but acknowledged that negotiations on bill’s language were continuing. Committee expected to release final draft version of Dept. of Justice (DoJ) counterterrorism proposal Thurs., Chmn. Leahy (D- Vt.) and ranking Republican Hatch (Utah) said in joint statement: “These have been complex and difficult negotiations, but after much hard effort we have completed work on this bipartisan agreement.” They said they “hope to transmit the bill to Majority Leader Daschle [D-S.D.] and Republican Leader Lott [Tenn.] on Thursday.”
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Despite tentative agreement, committee members such as Sen. Specter (R-Pa.) continued to press DoJ to provide evidence to justify need for greater wiretap powers. Although he said he supported some changes in wiretap law (WID Oct 4 p2), he said Justice should come forward with “specific factual needs” to back up Attorney Gen. John Ashcroft’s request to expand and extend foreign agent wiretap regulations to domestic criminal investigations.
DoJ is seeking to bolster its electronic surveillance capabilities in wake of Sept. 11 terrorist attacks and has been urging Congress to take immediate action. Its proposal includes provisions that would: (1) Enable courts to grant nationwide, rather than geographically limited, wiretap orders. (2) Extend pen register and trap-&-trace authority to Internet. (3) Amend Foreign Intelligence Surveillance Act (FISA), which governs wiretaps of foreign agents. FISA currently allows wiretaps in such intelligence investigations without court order and requires a lower standard of proof to carry out wiretaps. DoJ wants to extend FISA standard to domestic law enforcement under certain circumstances. (4) Modify FISA to allow for multipoint or “roving” wiretaps, capability currently allowed under Title III criminal wiretaps.
Justice granted Specter’s request for closed briefing on FISA-related questions that were raised Wed. in Judiciary Committee’s Constitution Subcommittee hearing, congressional staffer said. That meeting was scheduled for Thurs. afternoon, but Specter aide wouldn’t disclose its participants or time and place. One of Specter’s main concerns at Subcommittee hearing was why DoJ wanted to change FISA’s “primary purpose” provision. For example, foreign agent surveillance must be sole basis for wiretap under FISA. Justice initially wanted that requirement changed to “a” purpose of FISA wiretap so it could be used for criminal as well as foreign agent surveillance. It since has modified that request to change requirement to “significant” purpose. Outcome of Specter’s closed meeting with DoJ wasn’t available by our deadline.
Full committee was considering taking DoJ compromise bill into private meeting off Senate floor, rather than referring proposal to full Senate after open markup, Judiciary staffer said. Committee aide said closed markup for today was at best “possibility.”
Indications of imminent Senate action on counterterrorism legislation came day after House Judiciary Committee referred compromise version of DoJ plan to House floor. Leahy has said reaching consensus between Senate and House Judiciary committees was key element in getting a bill to President to be signed into law (CD Sept 26 p1). Aside from Senate skepticism about sunsetting wiretap plan by Dec. 21, 2003, which House panel approved 36-0 Wed. night, it remained unclear whether houses were at odds on other provisions.
National Telephone Co-op Assn. (NTCA) said it would step up lobbying efforts to ensure Senate amended Justice plan to avoid placing new mandates on service providers. Reps. Boucher (D-Va.), Goodlatte (R-Va.) and Cannon (R-Ill.) successfully introduced amendment to prevent govt. from “imposing any additional technical obligation or requirement” on providers. NTCA Pres. Michael Brunner said rural telecom industry “stands willing” to assist law enforcement, but wanted assurances that changes in law wouldn’t require expensive technology upgrades: “Particular consideration must be given to the potential impact on rural carriers, who lack the economies of scale of their larger counterparts and will be disproportionately affected by the financial hardships that may arise from their obligations to comply with the law.”
Additional amendments to House bill (HR-2975) include one by Rep. Frank (D-Mass.) that would impose civil damages of $10,000 or $100 per day on officials who improperly disclosed wiretap information. Frank amendment also would impose additional damages of up to $10,000 that “would be deducted from the budget of the appropriate agency or bureau.”
Amendment by Chmn. Sensenbrenner (R-Wis.) modified original language on roving wiretaps. Initial bill would have allowed such wiretap orders to be granted in “any district in which activities related to the terrorism may have occurred.” Amendment changes that to “any district court of the [U.S.] (including a magistrate judge of such a court) or any [U.S.] Court of Appeals having jurisdiction over the offense being investigated.”