13 February 1999. Thanks to DN.
The Washington Post, Saturday, February 13, 1999
By Nat Hentoff
Deputy Attorney General Eric Holder [letters, Feb. 4 (below)] charges that in my column on roving wiretaps ["Raid on Rights," Jan. 2], I was mistaken as to the dangers of a new change in the law that, as he says, "allows federal officials to wiretap conversations of a given suspect regardless of the phone the suspect uses."
This new provision, Mr. Holder assures us, is "a relatively minor adjustment to an existing statute that serves to protect privacy rather than intrude upon it."
At first Mr. Holder says that I suggested roving wiretaps are a new idea. But in my column, I noted that "since 1986, a very limited multipoint wiretap [has been] permitted if the target showed a clear intent to evade a conventional wiretap."
A conventional wiretap requiring particular descriptions of the place and person to be searched is supposed to prevent the government from using a general search warrant of the kind that the British troops so wantonly used against the colonists.
However, electronic roving wiretaps now authorized for the FBI are the equivalent in the physical world of giving its agents blanket permission to follow a suspect around and search every home and business he or she enters.
This is hardly "a relatively minor adjustment" to the Fourth Amendment.
Mr. Holder claims that roving wiretaps are needed because otherwise, a suspect will keep changing phones to thwart surveillance. But most of us could be suspected of such diversionary tactics. The average length of a federal wiretap in 1997 was 51 days. In that amount of time, many of us use one phone at work, another at home, a phone at a friend's house, a cell phone and occasionally a pay phone. So, as I noted, roving wiretaps actually thwart the purpose of the Fourth Amendment, which requires a particular description of the place to be searched in addition to "the persons or things to be searched."
Mr. Holder goes on to say that I am incorrect in stating that the FBI can listen to the wandering phones even if the owner of the phone and his or her family and not the target are using it. Not so, Mr. Holder says. The official eavesdroppers, he claims, can "listen in only on those criminally related conversations in which the suspect is a party." That surveillance must end, he adds, "once the suspect hangs up."
But that is not exactly what the new law says. It states that phones can be wiretapped so long as the suspect is "reasonably proximate" to those phones.
If the Department of Justice were serious about not intercepting innocent conversations, it would support a roving wiretap amendment mandating that wiretapping not start until the suspect was observed actually using any phone he or she is "proximate" to. The amendment should also require that the rule specifically state that the FBI must hang up as soon as the target does instead of recording everything.
Significantly, the Justice Department has been asking the FCC to require phone companies to adjust their systems so that the FBI can continue to listen in on conference calls involving the suspect even after he or she has hung up on that conference call. So much for Mr. Holder's insistence that innocent conversations not be recorded.
Mr. Holder says that I have left "the misapprehension that roving wiretaps are used frequently." He notes that, "of all the federal electronic surveillance requests reviewed in the Department of Justice last year, less than one percent involved roving wiretaps."
But the new law allowing expansion of roving wiretaps was not signed until Oct. 20 of last year and could not be implemented until guidelines were promulgated. It may be instructive to see the 1999 figures, since the new law is intended to increase electronic surveillance by the Justice Department.
In any case, Mr. Holder emphasizes, wiretaps "enabled the FBI to prevent terrorists from blowing up the bridges and tunnels leading into New York City in 1994."
But according to the Administrative Office of the United States Courts, from 1987 to 1997, only 0.13 percent of authorized wiretaps were used to "investigate crimes involving arson, bombing and firearms violations." The FBI understandably likes to use the specter of terrorism as a reason to expand its wiretapping powers.
Mr. Holder says that he is opposed to the government's unreasonable intrusion on an individual's privacy. Yet the Clinton administration, in which he serves, put in place more federal wiretaps in 1995 and 1996 than all those put in place by the individual states in those years.
From the new increase in roving wiretaps to those placed for "intelligence" purposes without probable cause of crime by the secret Foreign Intelligence Surveillance Court, housed at the Justice Department, this is an administration, as Marc Rotenberg of the Electronic Privacy Information Center says, that "has less regard for the privacy of American citizens" than any since Richard Nixon.
Washington Post, Thursday, February 4, 1999; Page A26
In his Jan. 2 op-ed column, "Raid on Rights," Nat Hentoff is mistaken about a change in the law that allows federal officials to wiretap conversations of a given suspect regardless of the phone the suspect uses.
First, Mr. Hentoff suggests that so-called roving wiretaps are a new idea. In fact, they have been legal for more than a decade. In 1986 Congress authorized the roving wiretap to deal with the sophisticated criminal who tries to avoid electronic surveillance by constantly switching phones. This law allows law enforcement to tap the criminal, not the phone.
Unfortunately, under the 1986 law, officials could use this authority only if they showed that the suspect was changing phones with the intent of thwarting surveillance. But that requirement forced law enforcement to determine what was going on in the criminal's mind before a court would issue a wiretap order. So now, instead of requiring intent, the modified law requires a showing that the suspect's actions have the effect of thwarting surveillance. Nothing else changed.
Second, Mr. Hentoff writes that the FBI can listen to the roving tapped phones "even if the owner of a phone and his or her family -- and not the target -- are using it." That is incorrect. The law requires that federal officials identify the specific suspect in their request to the court and listen in only on those criminally related conversations in which the suspect is a party. In fact, unlike a regular wiretap, roving surveillance must end once the suspect hangs up -- even if the co-conspirators stay on the line. In this regard, roving wiretaps are actually a more limited intrusion upon privacy than "regular" wiretaps.
Third, Mr. Hentoff leaves the misimpression that the roving wiretaps are used frequently. The statistics do not support his assertion. Of all of the federal electronic surveillance requests reviewed in the Department of Justice last year, less than one percent involved roving wiretaps -- and almost all of those were against major drug dealers.
Wiretapping, properly used under judicial supervision, is an important law enforcement tool. It not only helps law enforcement catch criminals after they commit additional crimes, it helps us prevent criminals from committing the crime at all. For example, court-authorized wiretapping enabled the FBI to prevent terrorists from blowing up the bridges and tunnels leading into New York City in 1994.
As a lifelong advocate for the protection of privacy rights, I agree that government should not have the ability to intrude unreasonably on an individual's privacy. But I also understand that law enforcement must have the technical tools to keep pace with the more sophisticated criminals we now must confront. The recent wiretap change is a relatively minor adjustment to an existing statute that serves to protect privacy rather than intrude upon it.
ERIC H. HOLDER JR.
The writer is deputy attorney general of the United States.