Some Fear Fight Against Terror Will Imperil Privacy

09/13/2001
The Wall Street Journal
Page B4
(Copyright (c) 2001, Dow Jones & Company, Inc.)

In the aftermath of this week's terrorist attacks, civil liberties groups, privacy advocates and scholars are bracing for demands seeking antiterrorist measures that might end up jeopardizing personal privacy and other freedoms.

Authorities quickly turned their attention in this latest investigation to the Internet, in addition to their on-scene efforts. Law-enforcement agencies, including the Federal Bureau of Investigation, this week demanded information about some subscribers from both AOL Time Warner Inc.'s America Online Inc. and EarthLink Inc., the nation's largest Internet-service providers, people familiar with the matter said. Both providers said they were cooperating with the agencies.

EarthLink spokesman Dan Greenfield confirmed that the Atlanta company was served Tuesday night with a court order under the Foreign Intelligence Surveillance Act, called FISA, a law giving law enforcement special authority when investigating state-sponsored terrorism or espionage. The FBI can install wiretaps under the act, but Mr. Greenfield said no monitoring equipment was installed.

"Obviously, EarthLink is cooperating with authorities in this matter," he said. "We only provided specific information. It's not an invitation to monitor everyone's e-mail traffic."

An AOL spokesman, Andrew Weinstein, declined to confirm whether the Dulles, Va., ISP received any specific demands, but said: "We are cooperating fully with law enforcement agencies."

Someone close to the investigation also said investigators demanded information from Microsoft Corp. and Yahoo Inc. about some users of the companies' Hotmail and Yahoo e-mail services. Yahoo wouldn't say whether it received a warrant or subpoena. "Yahoo is fully cooperating with authorities," a spokeswoman said. Microsoft wouldn't confirm whether it was contacted by authorities.

There was no evidence so far, other than the demands from Internet providers, that computer communications played any role in planning of the terrorist attacks. But some experts note that Osama bin Laden, the Saudi Arabian exile believed to be in Afghanistan accused of masterminding previous anti-American attacks, has demonstrated sophistication in the past, including use of satellite telephones and encryption. A classified CIA report from earlier this year noted that terrorists are increasingly using the Internet for communications.

Some experts suggest that the attacks would be enough for the FBI and others to defend against complaints about government eavesdropping technologies, such as the FBI's "Carnivore" e-mail wiretap tools.

"There are probably some people who will propose extreme measures in the interest of saying that they are doing something," said David Sobel, a lawyer with the Electronic Privacy Information Center in Washington. "If people are going to propose altering existing laws, they are talking about loosening the existing protections of the privacy of American citizens."

There were no such proposals coming from Congress on its first day back at work since the attacks, and indeed some lawmakers cautioned against overreacting.

"We must not let the terrorists win," said Senate Judiciary Committee Chairman Patrick Leahy (D., Vt.). "If we abandon our democracy to battle them, they win."

Historians say there are many precedents in U.S. history for civil liberties being abridged in response to perceived threats to the public order. One of the best-known examples is the interment of American citizens of Japanese ancestry during World War II. While regarded today as a blemish on the country's history, the camps were actually upheld as constitutional by a 6-3 vote of the U.S. Supreme Court in 1944.

"In coming months, anything claiming to be in the name of security will be hard to oppose," said Alan Brinkley, chairman of the history department at Columbia University. "More streets will be closed, more buildings will be sealed off; more metal detectors will be installed. Life will become more difficult than it already is."

The public appears to be sensitive to the compromises that increased antiterrorist measures entail. In an online survey conducted yesterday on Excite@Home Corp.'s Web site, 54% of more than 15,600 respondents said they wouldn't be willing to sacrifice freedoms of privacy, speech or travel to wipe out the threat of terrorism. About 23% said they would be willing to compromise their freedom of travel.

High-tech surveillance systems have had mixed results. Video cameras installed in Britain have led to some criminal arrests, but no terrorists have been caught using them, says Jeffrey Rosen, an associate law professor at George Washington University.

Cindy Cohn, legal director for the San Francisco civil liberties group, the Electronic Frontier Foundation, said she has made up a list of the antiterrorist proposals she expects to hear soon from government officials, including everything from demands for increased e-mail surveillance to use of facial recognition systems that could aid authorities to match suspects in public places to a database of criminals.

Many legal scholars say their main concern is with measures that single out one group, especially Arab Americans.

"My real concern is with the idea that there is some kind of `fifth column' operating inside the United States," said Bruce Ackerman, professor of constitutional law at Yale Law School. "At that point, all manner of searches and invasions or privacy might be tolerated. And so you could have this vulnerable group of people who are very much Americans."

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Mitchel Benson contributed to this article.

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