By Matthew Fordahl / Associated Press
SAN JOSE, Calif. -- In the seven months since the passage of a sweeping law to combat terrorism, Internet and telecommunications companies have seen a surge in law enforcement requests to snoop on subscribers.
Privacy advocates fear that expanded police power under the Patriot Act -- combined with lax oversight and increased cooperation between the government and private sector phone network and Internet gatekeepers -- may be stomping on civil liberties.
The new laws do not apply just to terrorism but to other crimes as well.
"The trend up to Sept. 11 was for more privacy protection, greater procedural safeguards, more sunshine on the process and more notice," said Al Gidari, a Seattle privacy lawyer who represents Internet and telecom companies.
"I now see all those things tied up in a box with a little bow on them and forgotten about in the corner," he said.
Law enforcers say they need stepped-up electronic surveillance to keep up with sophisticated criminals, stressing that such efforts are targeted -- they're not trolling every server for e-mails mentioning Osama bin Laden, they say.
Most of the time, they need to identify the source or recipient of a threatening or suspicious message.
Privacy advocates agree that terror must be stopped, but worry that a wider net is being cast that will capture information from innocent citizens.
"The fear is that we create a system where tremendous amounts of information about people are collected and ultimately used for purposes other than what was originally intended," said Alan Davidson, associate director of the Center for Democracy and Technology.
Prosecutors stress that any search must be approved by a judge, and that many of the changes have only streamlined procedures that were giving criminals an upper hand in cyberspace.
"Probable cause is probable cause," said Ross Nadel, an assistant U.S. attorney in the Northern District of California. "There is nothing in the Patriot Act that in any way alters the standard that has to be met."
But critics say eavesdropping requests are routinely approved, and the only public reports that detail the process don't say whether requests are overreaching.
Demands for information have soared as much as five times over pre-Sept. 11 levels, said Gidari, whose clients include America Online, AT&T Wireless and Cingular.
At Quantum Computer Services, a free e-mail provider in Louisiana, search requests from law enforcers ranging from the Secret Service to New York City investigators doubled after the terror attacks, manager Sheila Keller said.
"We did have some accounts that were created in Saudi Arabia and the Middle East that were registered in names that were under suspicion," she said, adding that the requests have eased.
AOL spokesman Nicholas Graham said there was a spike after the terror attacks but that the company has since seen "a return to normal levels of cooperative work and compliance with requests from law enforcement."
The spirit of cooperation between Internet companies and law enforcement was growing stronger even before Sept. 11 -- a substantial change from the industry's early days, Gidari said.
"They are no longer the last bastion of protection for consumers against government incursions into their private information," he said.
Sue Ashdown, president of the American Internet Service Providers Association, said companies should not jump the gun.
"They ought to be insisting on a court order," she said. "There is a serious liability issue for them if they turn over information without sufficient cause."
Companies such as Quantum, AOL and Earthlink say they have no choice but to cooperate as long as authorities provide the proper documents.
The Patriot Act's surveillance provisions nevertheless allow carriers and providers to voluntarily hand over information in "emergencies."
"Everything is now an emergency," Gidari said.
Surveillance tools range from subpoenas for basic subscriber information and caller ID-type tools to searches of e-mail content and real-time wiretapping.
Nadel, who heads the hacking and intellectual property unit in the U.S. Attorney's Office in San Jose, where large Internet companies such as Yahoo! and Microsoft Hotmail are located, said the point was to make investigations more efficient.
But the change has also made tracking surveillance even more difficult.
Bryan Sierra, a Justice Department spokesman in Washington, D.C., said national tracking information on subpoenas or warrants was not immediately available.
When it comes to foreign intelligence, judges meeting secretly at the Justice Department approved all 934 requests in 2001 to do surveillance within U.S. borders, down from 1,003 in 2000. However, because of streamlining, agents can now get a single order to track a suspect using multiple communications companies across the country.
The Patriot Act also broadened the 1978 law that applies to foreign intelligence eavesdropping to allow the FBI to request special warrants in investigations not exclusively focused on foreign intelligence cases.
"Everyone in the business understands that the point of this terminological change is to lower the bar," said Lee Tien, a staff attorney at the Electronic Frontier Foundation, which advocates online privacy and security.
But anyone involved in this surveillance is forbidden to talk because of the sensitive nature of the investigations.
"We cannot have a dialogue about this stuff. There's no way," Tien said. "The only people who know about it aren't allowed to talk about it. It's this wonderful union of Orwell and Kafka."
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