Date: June 30, 1991
From: Moderators
Subject: House Crime Bill (1400) and its Threat to Modemers
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*** CuD #3.24: File 6 of 8: Threat of HR 1400 to Modemers ***
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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."
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.
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.".
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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.
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