------------------------------ Date: June 30, 1991 From: Moderators Subject: House Crime Bill (1400) and its Threat to Modemers ******************************************************************** *** CuD #3.24: File 6 of 8: Threat of HR 1400 to Modemers *** ******************************************************************** Why should modemers be concerned about the Bush "war on crime?" Proposed anti-crime legislation could, if passed, increase the risk of intrusion of government into the lives of law-abiding citizens. Among the provisions of HR 1400 (_The Comprehensive Violent Crime Control Act of 1991_) is a change in 18 USSC (sect) 2709 that expands the power of the FBI to intrude into the privacy of citizens. An article in _First Principles_ (June, 1991, p. 6) describes the proposed revision this way: "Sections 743 and 744 {of HR 1400} would grant the FBI authority to obtain subscriber information on persons with nonpublished telephone numbers, as well as credit records, simply by certifying in writing to the telephone company or credit bureau that such information is relevant to an authorized foreign counterintelligence investigation. The proposals would seriously erode current privacy protections by giving the FBI authority to obtain these records without a subpoena or court order and without notice to the individuals that their records have been obtained by the bureau." \/\/\/\/\/\/\/\/\/\/\/\/Current law\/\\/\/\/\/\/\/\/\/\/\/\/\ CHAPTER 121. STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS s 2709. Counterintelligence access to telephone toll and transactional records (a) Duty to provide. A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section. (b) Required certification. The Director of the Federal Bureau of Investigation (or an individual within the Federal Bureau of Investigation designated for this purpose by the Director) may request any such information and records if the Director (or the Director's designee) certifies in writing to the wire or electronic communication service provider to which the request is made that (1) the information sought is relevant to an authorized foreign counterintelligence investigation; and (2) there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801). (c) Prohibition of certain disclosure. No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section. (d) Dissemination by bureau. The Federal Bureau of Investigation may disseminate information and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency. (e) Requirement that certain Congressional bodies be informed. On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests made under subsection (b) of this section. \/\/\/\/\/\/\/\/\/\/\/\proposed law\/\/\/\/\/\/\/\/\/\/\/\/\ SEC. 743. COUNTERINTELLIGENCE ACCESS TO TELEPHONE RECORDS. Section 2709 of title 18 of the United States Code is amended by- (1) striking out subsections (b) and (c); and (2) inserting the following new subsections (b) and (c): "(b) REQUIRED CERTIFICATION.-The Director of the Federal Bureau of Investigation (or an individual within the Federal Bureau of Investigation designated for this purpose by the Director) may: "(1) request any such information and records if the Director (or the Director's designee) certifies in writing to the wire or electronic communication service provider to which the request is made that- "(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and "(B) there are specific and articulable facts giving reason to believe that the person or entity about whom information is sought is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); "(2) request subscriber information regarding a person or entity if the Director (or the Director's designee certifies in writing to the wire or electronic communications service provider to which the request is made that- "(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and "(B) that information available to the FBI indicates there is reason to believe that communication facilities registered in the name of the person or entity have been used, through the services of such provider, in communication with a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801). "(c) PENALTY FOR DISCLOSURE.-No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information under this section. A knowing violation of this section is punishable as a class A misdemeanor.". /\/\/\/\/\//\//\the end/\/\/\/\/\/\/\/\/\/\//\ David Cole (_The Nation_, May 6, 1991, "The Secret Tribunal", p. 581) describes aspects of the Crime Bill as a return to the seventeenth century Star Chamber. We agree with his concern that the expanded interpretation of the word "terrorism" creates new categories of people vulnerable to investigation--not on the basis of what they have done--but rather on the basis of who they may have associated with. Although looking at a different, but related, provision of the Bill, Cole's warning is sound: The current crime Bill contains changes that expand the power of government to curtail fundamental rights. In cloaking the rationale and the language in fears of terrorism, something most rationale people oppose, the Bill, if passed, reduces jeopardizes a broader number of law-abiding citizens to intrusion and potential harm by zealous law enforcement agents, and makes it a crime for other citizens to warn innocent folk of their vulnerability. Secret police tactics are not the way to create a safe society in a Constitutional democracy. Questions about HR1400 can be directed to Ted Vandermede, staff attorney for the House Criminal Justice subcommittee, at (202) 225-0600. ******************************************************************** >> END OF THIS FILE << ***************************************************************************