Date: Thu, 27 Apr 1995 17:38:31 -0700
From: Phil Agre <pagre@weber.ucsd.edu>
To: rre@weber.ucsd.edu
Subject: CDT POLICY POST No.10 -- Administration Terrorism Proposal Unveiled
Date: Thu, 27 Apr 1995 14:36:58 -0400
From: jseiger@cdt.org (Jonah Seiger)
Subject: CDT POLICY POST No.10 -- Administration Terrorism Proposal Unveiled
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** ** ** *** POLICY POST
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** ** ** *** April 27, 1995
** ** ** *** Number 10
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CENTER FOR DEMOCRACY AND TECHNOLOGY
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A briefing on public policy issues affecting civil liberties online
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CDT POLICY POST 4/27/95 Number 10
CONTENTS: (1) Clinton Administration Outline of Counter
Terrorism Initiative
(2) Outline of Clinton Administration Counter Terrorism
Initiative.
(3) Communications Decency Act Update
(4) About the Center for Democracy and Technology
This document may be re-distributed freely provided it remains in its
entirety.
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SUBJECT: Clinton Administration Announces Outline of Counter
Terrorism Initiative.
The Clinton Administration today unveiled an outline of administration
proposals to combat foreign and domestic terrorism in the wake of the
Oklahoma City bombing. The outline is attached below.
These proposals on their face obviously raise civil liberties issues,
including government interference with privacy, free speech, free
association and Forth Amendment rights.. CDT is waiting for the
Administration to elaborate and provide concrete legislative proposals
so that we can assess the civil liberties ramifications.
The administration document is merely an outline, not specific legislation
or executive order. The administration is expected to produce a more formal
proposal in the coming weeks. These proposals are likely to supplement
the Omnibus Counter-Terrorism Act of 1995, (S. 390, HR 896). which is
currently pending before Congress.
CDT believes that there must be substantial open, public discussion of
these proposals and thier potential implications before any action is
taken.
We have set up the following URL's to provide information on the
counter-terrorism issue. Updates will be made as soon as more information
becomes available.
World-Wide-Web:
http://www.cdt.org/policy/terrorism/terrorism.html
ftp:
ftp://ftp.cdt.org/pub/cdt/policy/terrorism/
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Clinton Administration Counter Terrorism Initiative
I. Actions Already Announced by the President
(1) Pass the Omnibus Counter-Terrorism Act of 1995
This bill would provide clear Federal criminal jurisdiction for any
international terrorist attack that might occur in the United States;
provide Federal criminal jurisdiction over terrorists who use the United
States as the place from which to plan terrorist attacks overseas; provide
a workable mechanism, utilizing United States District Judges appointed by
the Chief Justice, to deport expeditiously alien terrorists without risking
the disclosure of national security information or techniques; provide a
new mechanism for preventing fundraising in the United States that supports
international terrorist activities overseas; and would implement an
international treaty requiring the insertion of a chemical agent into
plastic explosives when manufactured to make them detectable.
(2) Provide more tools to federal law enforcement agencies
fighting terrorism
* AMEND THE FAIR CREDIT REPORTING ACT TO EASE ACCESS TO FINANCIAL AND
CREDIT REPORTS IN ANTI-TERRORISM CASES. This legislation provides for
disclosures by consumer reporting agencies to the FBI for
counterintelligence and counterterrorism purposes. The FBI has no
mechanism for obtaining credit reports for lead purposes in
counterterrorism cases. These reports are available to used car
dealers and other merchants. The FBI currently has authority under the
Right to Financial Privacy Act of 1978 to obtain similar records
pursuant to a "National Security Letter" signed by a high-ranking FBI
official. the same procedures and safeguards would apply to credit
records under this proposal.
* AMEND FEDERAL LAW TO ADOPT, IN NATIONAL SECURITY CASES THE STANDARD
CURRENTLY USED IN OBTAINING A "PEN REGISTER" IN A ROUTINE CRIMINAL
CASE. This proposal would extend the relaxed standard for obtaining
"pen registers" and "trap and trace" device orders which already
exists in routine criminal cases, to national security cases. A "pen
register" is a device which records the number dialed on a telephone.
A "trap and trace" devices is similar to "Caller ID," providing law
enforcement with the telephone number from which a call originates.
Neither "pen registers" nor "trap and trace" devices permit law
enforcement to monitor actual conversations being conducted. the
current, higher-than-regular standard impedes the ability of the FBI
to obtain surveillance coverage of terrorists and spies.
* PASS LEGISLATION TO REQUIRE HOTEL/MOTEL AND COMMON CARRIERS TO PROVIDE
RECORDS NECESSARY FOR FIGHTING TERRORISM. This proposal would require
hotel/motel and common carriers such as airlines and bus companies to
provide records to the FBI pursuant to authorized national security
requests just as they must do now for virtually all state and local
law enforcement. The FBI must now rely on the voluntary assistance of
motel, hotel, and other innkeepers or common carriers regarding
records of terrorists who may have stayed at the establishment or used
the common carrier. The FBI has found that, while some of these
entities voluntarily provide such information, an increasing number
refuse, absent a court order, a subpoena, or other legal protection.
In a counterterrorism case being conducted pursuant to the Attorney
General's guidelines for FBI Foreign Intelligence Collection and
Foreign Counterintelligence Investigations, there is no legal
mechanism, e.g. subpoena, available to obtain these records.
* FULLY FUND THE FBI'S "DIGITAL TELEPHONY" INITIATIVE TO ASSURE COURT
AUTHORIZED LAW ENFORCEMENT ACCESS FOR ELECTRONIC SURVEILLANCE TO
DIGITIZED COMMUNICATIONS. This proposal would appropriate funds to
implement recent amendments to statutes governing secure telephone
transmission (digital telephony). These amendments require telephone
carriers to install and maintain sophisticated equipment which would
permit law enforcement to continue to conduct legal electronic
surveillance.
* CREATE AND ALLOCATE FUNDS FOR A SPECIAL FBI COUNTERTERRORIST AND
COUNTERINTELLIGENCE FUND. This proposal will fund costs associated
cases which arise in connection with terrorism crises, including
logistics and other support.
* Create an interagency Domestic Counterterrorism Center headed by the
FBI. This proposal will establish a partnership effort between the
Justice Department, including the FBI, and other federal and state law
enforcement authorities to coordinate efforts within the United
States.
(3) CONDUCT TERRORISM THREAT ASSESSMENT OF EVERY FEDERAL FACILITY
IN THE COUNTRY WITHIN THE NEXT 60 DAYS. The President has
directed the Attorney General to conduct this assessment and report her
recommendations in 60 days. The assessment has already begun.
(4) DIRECT GSA TO REPLACE THE FEDERAL BUILDING IN OKLAHOMA CITY.
(5) DIRECT THE FBI DIRECTOR, THE ATTORNEY GENERAL, AND THE NATIONAL
SECURITY ADVISER TO PREPARE A PRESIDENTIAL DECISION DIRECTIVE AUTHORIZING
ANY AND ALL FURTHER STEPS NECESSARY TO COMBAT FOREIGN AND DOMESTIC
TERRORISM.
II. New Legislative Proposals
(1) INVESTIGATIONS
* HIRE APPROXIMATELY 1000 NEW AGENTS, PROSECUTORS, AND OTHER FEDERAL LAW
ENFORCEMENT AND SUPPORT PERSONNEL TO INVESTIGATE, DETER, AND PROSECUTE
TERRORIST ACTIVITY.
* PASS LEGISLATION TO REQUIRE, WITHIN 1 YEAR, THE INCLUSION OF TAGGANTS
IN STANDARD EXPLOSIVE DEVICE RAW MATERIALS WHICH WILL PERMIT TRACING
OF THE MATERIALS POST-EXPLOSION. This proposal would require the
inclusion of microscopic particles in certain raw materials, thereby
permitting law enforcement to trace the source of the explosive even
after a device has been detonated.
* REQUIRE THE BATF TO STUDY AND REPORT ON 1) THE TAGGING OF EXPLOSIVE
MATERIALS FOR PURPOSES OF IDENTIFICATION AND DETECTION; 2) WHETHER
COMMON CHEMICALS USED TO MANUFACTURE EXPLOSIVES CAN BE RENDERED INERT
FOR USE IN EXPLOSIVES; AND 3) WHETHER CONTROLS CAN BE IMPOSED ON
CERTAIN PRECURSOR CHEMICALS USED TO MANUFACTURE EXPLOSIVES. In light
of recent bombing incidents, there is a need to develop technologies
that will make it possible to detect concealed explosives.
Additionally, if bombings do take place, a means of providing some
clues is needed to lead investigators to those responsible for the
explosion. Moreover, since explosives can be manufactured using common
agricultural and household materials, it is important to determine
whether such materials can be manufactured in a manner so that their
use in explosives is unlikely. Finally, the study would determine
whether any reasonable controls can be placed on precursor chemicals,
e.g., ammonium nitrate, which have many legitimate uses.
* AMEND THE POSSE COMITATUS ACT TO PERMIT MILITARY PARTICIPATION IN
CRIME-FIGHTING INVOLVING WEAPONS OF MASS DESTRUCTION. This proposal
would amend Federal Laws, which severely limit the role of the
military in domestic law enforcement, to permit military participation
in criminal cases involving chemical, biological, and other weapons of
mass destruction; areas in which the military has specialized
expertise.
* AMEND THE ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1868 TO
CONSTITUTIONALLY ENHANCE USE OF ELECTRONIC SURVEILLANCE TO FIGHT
TERRORISM. This proposal would: permit any federal felony to be used
as a basis for an electronic surveillance order; ease restrictions on
the use, in American court proceedings, of information from electronic
surveillance conducted by foreign governments; forbid suppression of
electronic evidence unless law enforcement acted in bad faith in
obtaining the evidence; authorize emergency electronic surveillance in
situations involving threats by domestic terrorist organizations,
authorize roving wiretaps where it is not practical to specify the
number of the phone to be tapped, such as where a target uses multiple
pay phones; allow the FBI to obtain records of local telephone calls,
without the need for a court order, as they can own obtain records of
long-diastase calls; and require telephone companies and/or service
providers to preserve evidence until a court order could be obtained.
None of these changes would alter the requirement for probable cause
prior to engaging in electronic surveillance.
(2) PROSECUTION
* AMEND FEDERAL LAW TO CRIMINALIZE THE USE OF ALL CHEMICAL WEAPONS TO
INCLUDE ALL FORMS OF CHEMICAL WEAPONS. This bill would amend federal
law to include chemical weapons in non-gaseous form. Under existing
law, chemical weapons in gaseous form are covered, but those which are
in liquid or solid form are not. Thus, for example, an individual who
introduces dioxin in solid form into the water supply of a city would
not be chargeable under current law.
* MAKE IT ILLEGAL TO POSSESS EXPLOSIVES KNOWING THAT THEY ARE STOLEN.
This proposal would conform explosive laws to existing firearms
statutes, making it a crime for an individual to possess explosives
which the individual knows are stolen.
* EXTEND THE STATUTE OF LIMITATIONS ON THE NATIONAL FIREARMS ACT TO FIVE
(5) YEARS. This proposal would extend from three (3) to five (5) years
the statute of limitations for prosecution for violations of the
National Firearms Act, which deals with explosive and incendiary
bombs. This change brings the statue of limitations for these offenses
in line with similar criminal provisions.
* PROVIDE THE SECRETARY OF TREASURY AUTHORITY TO DIRECT THE USE OF
TREASURY DEPARTMENT AIRCRAFT TO SUPPORT EMERGENCY LAW ENFORCEMENT
SITUATIONS. This proposal would authorize the Secretary of Treasury to
authorize the use of Treasury Department aircraft in support of
emergency law enforcement crises.
* AMEND REWARD STATUTES TO REDUCE RESTRICTIONS ON MAKING REWARDS. This
proposal would provide the Attorney General authority to pay a reward
which is not subject to the spending limitations contained in 18 USC
'' 3059 and 3072, provided that any reward of $100,000 or more may not
be made without the approval of the President of the Attorney General,
and such approval may not be delegated.
(3) PENALTIES
* INCREASE THE PENALTY FOR ANYONE CONVICTED OF TRANSFERRING A FIREARM OR
EXPLOSIVE KNOWING THAT IT WILL BE SUE DOT COMMIT A CRIME OF VIOLENCE
OR DRUG TRAFFICKING CRIME. This proposal will provide a mandatory
penalty of not less than 10 years for any person who transfers a
firearm knowing or having reasonable cause to believe that a firearm
will be used to commit a crime of violence or drug-trafficking crime.
* AMEND 18 USC ' 111 TO PROVIDE ENHANCED PENALTIES FOR ALL CURRENT AND
FORMER FEDERAL EMPLOYEES AGAINST TERRORIST ATTACKS. The existing
statute only protects enumerated categories of current Federal
employees. The proposed statute would provide enhanced penalties for
crimes against all current and former Federal employees, and their
immediate families, when the crime is committed because of the
official duties of the federal employee.
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UPDATE: Communications Decency Act Senate Vote Expected by June
The Senate is expected to consider telecommunications reform legislation
(S. 652), which includes the Exon/Gorton Communications Decency Act
(Title IV), sometime towards the end of May or begining of June. The vote
had been expected to occur in the first week of May, but other issues,
including counter-terrorism legislation, are likely to delay Senate action.
Senator Patrick Leahy's (D-VT) alternative proposal (S. 714) is gaining
support among key members of congress and industry. CDT is working with
Senator Leahy, the public interest community, and representatives of the
communicaitons, computer, online services, and publishing industries to
generate support for Senator Leahy's proposal.
Action on the House version of the CDA (HR 1004) is not expected to occur
any time soon as its sponsor, Rep. Tim Johnson (D-SD) has recently backed
away from the proposal. In a letter to Rep. Jack Fields (R-TX and Chair of
the Hse. Telecomm. Subcommitte), circulated by CDT, Rep. Johnson urged the
Committee to hold hearings and consider alternatives to protect children
from controversial content instead of rushing to enact the CDA.
CDT has set up the following auto-reply aliases to keep you informed on the
Communications Decency Act issue.
For information on the bill, including
CDT's analysis and the text of Senator
Leahy's alternative proposal and
information on what you can do to
help -- cda-info@cdt.org
For the current status of the bill,
including scheduled House and
Senate action (updated as events
warrant) -- cda-stat@cdt.org
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ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY
The Center for Democracy and Technology is a non-profit public interest
organization. The Center's mission is to develop and advocate public
policies that advance constitutional civil liberties and democratic
values in new computer and communications technologies.
Contacting us:
General information on CDT can be obtained by sending mail to
<info@cdt.org>
World-Wide-Web:
http://www.cdt.org/
ftp:
ftp://ftp.cdt.org/pub/cdt/
gopher:
CDT's gopher site is still under construction and should be operational soon.
voice: +1.202.637.9800
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Lenny Foner Last modified: Wed May 17 22:48:20 1995