Jacking in from the "Smoked Filled Room" Port:
Washington, DC -- Federal provisions funding the digital telephony bill and roving wiretaps, surgically removed earlier this year from an anti-terrorism bill, have quietly been wedged into a $600 billion omnibus spending bill.
The bill creates a Justice Department "telecommunications carrier compliance fund" to pay for the provisions called for in the digital telephony bill, formally known as the Communications Assistance in Law Enforcement Act (CALEA). In reality, this is a slush fund.
Congress originally budgeted $500 million for CALEA, far short of the billions actually needed to build in instant wiretap capabilities into America's telephone, cable, cellular and PCS networks. This bill now approves a slush fund of pooled dollars from the budgets of "any agency" with "law enforcement, national security or intelligence responsibilities." That means the FBI, CIA, NSA and DEA, among others, will now have a vested interest in how the majority of your communications are tapped.
The spending bill also provides for "multipoint wiretaps." This is the tricked up code phase for what amounts to roving wiretaps. Where the FBI can only tap one phone at a time in conjunction with an investigation, it now wants the ability to "follow" a conversation from phone to phone; meaning that if your neighbor is under investigation and happens to use your phone for some reason, your phone gets tapped. It also means that the FBI can tap public pay phones... think about that next time you call 1-800-COLLECT.
In addition, all the public and congressional accountability provisions for how CALEA money was spent, which were in the original House version (H.R. 3814), got torpedoed in the Senate Appropriations Committee.
Provisions stripped out by the Senate:
"No matter what side you come down on this (digital wiretapping) issue, the stakes for democracy are that we need to have public accountability," said Jerry Berman, executive director of the Center for Democracy and Technology.
Although it appeared that no one in congress had the balls to take on the issue, one stalwart has stepped forward, Rep. Bob Barr (R-Ga.). He has succeeded in getting some of the accountability provisions back into the bill, according to a Barr staffer. But the fight couldn't have been an easy one. The FBI has worked congress relentlessly in an effort to skirt the original reporting and implementation requirements as outlined in CALEA. Further, Barr isn't exactly on the FBI's Christmas card list. Last year it was primarily Barr who scotched the funding for CALEA during the 104th Congress' first session.
But Barr has won again. He has, with backing from the Senate, succeeded in *putting back* the requirement that the FBI must justify all CALEA expenditures to the Judiciary Committee. Further, the implementation plan, "though somewhat modified" will "still have some punch," Barr's staffer assured me. That includes making the FBI report on its expected capacities and capabilities for digital wiretapping. In other words, the FBI won't be able to "cook the books" on the wiretap figures in secret. Barr also was successful in making the Justice Department submit an annual report detailing its CALEA spending to Congress.
However, the funding for digital wiretaps remains. Stuffing the funding measures into a huge omnibus spending bill almost certainly assures its passage. Congress is twitchy now, anxious to leave. They are chomping at the bit, sensing the end of the 104th Congress' tortured run as the legislative calender is due to run out sometime early next week. Then they will all literally race from Capitol Hill at the final gavel, heading for the parking lot, jumping in their cars like stock car drivers as they make a made dash for National Airport to return to their home districts in an effort to campaign for another term in the loopy world of national politics.
Congress is "going to try to sneak this (spending bill) through the back door in the middle of the night," says Leslie Hagan, legislative director for the National Association of Criminal Defense Lawyers. She calls this a "worst case scenario" that is "particularly dangerous" because the "deliberative legislative process is short-ciricutied."
Such matters as wiretapping deserve to be aired in the full sunlight of congressional hearings, not stuffed into an 11th hour spending bill. This is legislative cowardice. Sadly, it will most likely succeed.
And through this all, the Net sits mute.
Unlike a few months ago, on the shameful day the Net cried "wolf" over these same provisions, mindlessly flooding congressional switchboards and any Email box within keyboard reach, despite the fact that the funding provisions had been already been stripped from the anti-terrorism bill, there has been no hue-and-cry about these most recent moves.
Yes, some groups, such as the ACLU, EPIC and the Center for Democracy and Technology have been working the congressional back channels, buzzing around the frenzied legislators like crazed gnats.
But why haven't we heard about all this before now? Why has this bill come down to the wire without the now expected flurry of "alerts" "bulletins" and other assorted red-flag waving by our esteemed Net guardians? Barr's had his ass hanging in the wind, fighting FBI Director Louis "Teflon" Freeh; he could have used some political cover from the cyberspace community. Yet, if he'd gone to that digital well, he'd have found only the echo of his own voice.
And while the efforts of Rep. Barr are encouraging, it's anything from a done deal. "As long as the door is cracked... there is room for mischief," said Barr's staffer. Meaning, until the bill is reported and voted on, some snapperhead congressman could fuck up the process yet again.
We all caught a bit of a reprieve here, but I wouldn't sleep well. This community still has a lot to learn about the Washington boneyard. Personally, I'm a little tired of getting beat up at every turn. Muscle up, folks, the fight doesn't get any easier.
Declan McCullagh (firstname.lastname@example.org) contributed to this report.