Bill is a sneak attack on our digital liberties

BY DAN GILLMOR
Mercury News Technology Columnist

THE uproar was fierce but quick last summer when an internal Clinton administration document leaked out, revealing yet again the administration's hostility to fundamental liberties. The idea was to give law enforcement the authority to secretly break into people's homes and businesses to conduct searches, including discovering what was on computer hard disks or even plant rogue programs on the machines to record keystrokes or transmit data to the government.

The idea was considered a legislative non-starter, and it sank out of sight -- or so we thought. But this administration and its congressional allies are nothing if not persistent.

Like burglars in the dead of night, they've quietly attached the proposal to several pieces of legislation, including an utterly unrelated bankruptcy reform act. Like masters of deception, they've hidden it in language that no lay person could possibly unravel.

``We've never had a hearing on these provisions,'' says U.S. Rep. Bob Barr, R-Ga., a vocal opponent of what are being called the ``secret search'' portions of the legislation. ``They're very, very substantive, and they're being snuck into legislation without a chance to have light shed on them.''

It's happened before. In 1998, Congress passed a law that included a provision greatly expanding law enforcement's wiretapping authority -- a provision that lawmakers had explicitly rejected when it stood on its own.

The most immediate threat this time appears to be in the bankruptcy legislation, which goes by the designation HR 833. The House and Senate have passed differing versions of the bill, and it is now in conference committee. There, lawmakers might still be persuaded to strip out the secret search proposal and other attacks on the Bill of Rights, which appear to have been copied wholesale into the Senate version from an unrelated anti-drug bill that's not quite as far along in the legislative process.

In a section titled ``Notice; Clarification'' the bankruptcy and anti-drug bills say that ``Section 3103a of title 18, United States Code, is amended by adding at the end the following new sentence: `With respect to any issuance under this section or any other provision of law (including section 3117 and any rule), any notice required, or that may be required, to be given may be delayed pursuant to the standards, terms, and conditions set forth in section 2705, unless otherwise expressly provided by statute.' ''

That obscure language, according to experts who've studied it, would dramatically expand the government's authority to conduct what are called ``sneak and peek'' searches.

The government ``could enter your house, apartment or office with a search warrant when you are away, conduct a search, seize or copy things such as your computer hard drive and not tell you until months later,'' the American Civil Liberties Union and National Association of Criminal Defense Lawyers recently wrote in a letter to members of Congress.

With equally obscure language, the legislation would ``relieve the government of giving the property owner an inventory of seized intangible items, such as the contents of your computer,'' according to the letter from the ACLU and defense attorneys.

``The law normally requires that an inventory of seized items be prepared on the spot and presented to the person whose property has been seized. Combined with the secret search provision, it is doubly dangerous because the government could enter your home when you are not present, look into your computer files and never tell you they were there.''

The bankruptcy bill's offensive provisions, passed by the Senate with no debate, appear to be identical to language in the ``Methamphetamine Anti-Proliferation Act'' (HR 2987), an anti-drug bill designed to go after people who operate laboratories that manufacture speed.

The proposed laws aren't content to eviscerate what's left of the Fourth Amendment; they take a buzzsaw to the First Amendment, too. On these other provisions, at least, the lawmakers who favor them aren't trying to sneak something past their colleagues.

In a triumph of vagueness, the bills would ban direct or indirect advertising of drug paraphernalia and illegal drugs. You wouldn't be allowed even to post mere hyperlinks to sites containing information the government didn't like.

It would also be illegal to teach or disseminate any information, ``in whole or in part,'' about the manufacture of illegal drugs. The ACLU asks reasonably, ``If use of a Bunsen burner is necessary for producing a particular type of controlled substance, is teaching its proper use a `part of' the knowledge required, and would you be subject to liability for teaching someone that information?''

In the anti-drug bill, Internet service providers would be required to remove allegedly offending materials at government request. Forget due process, and who cares about that pesky First Amendment, anyway?

There's still time to thwart these brazen attacks on liberty, but not much.

Since the bankruptcy bill is in conference committee, it's fairly close to final passage. Call your U.S. representative and senators and demand that they call on the conferees to leave the Bill of Rights alone.

The Senate has already passed the methamphetamine bill. The House Judiciary Committee is scheduled to look closely at it on Wednesday, says Barr, who intends to try to strip out the big-brotherish language.

Here, again, you should call your representative, particularly if he or she happens to be on the Judiciary Committee. California members of the committee include Rep. Zoe Lofgren, D-San Jose; Mary Bono, R-Palm Springs; Howard L. Berman, D-Mission Hills; Elton Gallegly, R-Oxnard; and James E. Rogan, R-Pasadena. I'll post a list, with phone numbers, on my eJournal Web site (noted below).