The Justice Department's statements -- and what it did not say -- in a congressional inquiry on the use of broadened surveillance powers authorized after the Sept. 11 attacks is raising a red flag among civil liberties groups. A central concern is the lack of clarity regarding the scope of Internet surveillance powers granted in the controversial USA Patriot Act.
In response to testimony last week by Attorney General John Ashcroft before the House Judiciary Committee, the American Civil Liberties Union published a memo criticizing the government's attempts to apply the methodology for tracing phone calls to tracking Internet use.
Timothy Edgar, an ACLU legislative counsel and the report's author, argued that so-called "trap and trace" devices, traditionally used to capture telephone numbers but not the content of conversations, could potentially violate a subject's privacy if it's used to watch Web activity.
On the Internet, investigators use "trap and trace" technology to monitor e-mail, Web surfing and other activity to search for clues about potentially illegal activity.
The problem, according to Edgar, is that a URL, unlike a phone number, provides detailed information about the content a person is obtaining. "It isn't always technologically feasible to separate content information from routing information," said Edgar.
An overly intrusive application of tracing devices online was one of several Internet-related red flags raised by civil rights advocates following Ashcroft's testimony and the release last month of a Justice Department document answering lawmakers' questions about the Patriot Act.
Another Net-related concern in the ACLU memo is the potential use of Web-surfing records in data-mining projects, allowing investigators to fish for illicit activity unrelated to the original inquiry.
The ACLU also criticized the paucity of information provided by the Justice Department regarding what Internet content it considers off-limits in searches. It also questioned the application of some surveillance technologies in garden-variety criminal cases.
The critique comes as the Justice Department is expected to seek an extension of authorities granted under the Patriot Act.
The agency has not said when it will seek Congressional approval of a Patriot Act extension. But a draft proposal laying out a wish list of new powers, nicknamed "Patriot II," surfaced earlier this year, indicating that the Justice Department has already expended considerable effort planning its appeal. The proposal would broadly expand the government's surveillance and detention powers, including extending authorization periods for secret wiretaps and Internet surveillance.
The Justice Department has a limited time to seek a follow-up bill. Many of the authorities granted under the original Patriot Act -- enacted two months after the Sept.11 attacks -- expire at the end of 2005.
But before approving broad new powers for federal investigators, civil rights groups say Congress must ensure that the government is doing what it can to see that existing powers are applied responsibly.
That could be a difficult task, considering that thus far the Justice Department has been tight-lipped about Patriot Act-related activities, said Lee Tien, attorney for the Electronic Frontier Foundation.
As far as Internet surveillance is concerned, Tien said the Justice Department's preference for minimal disclosure is aided by the fact that the Foreign Intelligence Surveillance Act covers authorization for communications monitoring in anti-terrorism cases. Under FISA, investigators obtain authorization to conduct surveillance through a secret court, leaving the public out of the loop.
"What we're concerned about is you have a situation where the government, because there is less accountability, can engage in more surveillance without people knowing about it," Tien said.
The ACLU, meanwhile, says it would like to see more disclosure regarding the amount and types of data investigators obtain when monitoring Internet use. So far, the Justice Department has provided limited guidance on this subject. A memo (PDF) authored last year by Deputy Attorney General Larry D. Thompson states that the policy of the Justice Department is to use "reasonably available technology" in order to avoid collection of any content when trap and trace devices are employed. If content still gets collected, the memo states that "no affirmative investigative use may be made of that content."
But the ACLU's Edgar maintains that the Patriot Act does not clearly define what constitutes content in the context of the Internet. For example, he notes, it is unclear whether an investigator, without probable cause, would find out only that a subject has visited the Google website, or also that he or she entered the search terms "Bush" and "Halliburton," or "Clinton" and "Whitewater."
Edgar said the Department of Justice also failed to clarify whether or not it considers subject lines in e-mail messages to be content, as he has recommended. Moreover, the ACLU notes that trap-and-trace powers have not been limited to terrorism investigations, and have been applied to track Internet use in drug- and fraud-related cases.
Mark Corallo, a Justice Department spokesman, said that in the overwhelming majority of cases, powers granted under the Patriot Act have been used for the purpose of combating terrorism. And while the act does address monitoring of Internet activities, it does not provide a blank check to federal investigators to spy on ordinary Americans.
"What the Patriot Act allows us to do is to go to the FISA court and seek a warrant from a judge to monitor the Internet usage of the target of an investigation," he said. "It doesn't authorize the FBI to just go to the Internet and look at who's looking at what."
