Attorney General Janet Reno and Deputy Defense Secretary John Hamre say the federal government "must" be able to break into computers in order to fight drugs and terrorism, in a seven-page letter to Congress that was also signed by Commerce Secretary William Daley.
The Clinton Administration, Wired says, wants to be able to send federal agents with search warrants out to homes to copy encryption keys and put back doors onto computers. "(L)aw enforcement must be able to respond (to criminals' encryption) in a manner that will not thwart an investigation or tip off a suspect," say Reno and Hamre in their letter. Privacy advocates say Americans should be alarmed by that idea.
American Civil Liberties Union associate director Barry Steinhardt tells Wired Reno and Hamre want to restore the CESA provision from which the Administration first backed off. "The basic principle is that people who are the subject of searches should have notice and the opportunity to challenge the search," he says. "This is particularly dangerous since it will be difficult to guarantee that evidence hasn't been tampered with. What they are proposing to do is alter computer files. It's quite a chilling proposal."
Not that it's a new idea, necessarily. The Justice Department proposed last year legislation letting them get surreptitious warrants and not notify the person whose property they broke into for a month, says Wired. The idea behind that idea, the magazine says, is that, if a suspect uses encryption products, the FBI might have to break into his house and put in software to tap and decipher scrambled computer communications.
Civil libertarians objected loudly enough that the Clinton Administration backed off the plan. The last draft of the Cyberspace Electronic Security Act sent to Congress yanked the secret search provisions. But now, Wired says, the White House thinks it doesn't need new law to break into a suspect's computer.
In fact, the magazine says, the Reno-Hamre letter to House Majority Leader Dick Armey (R-Texas) says that, come the future, the federal government will use "general authorities" when asking judges to give the green light to cyber-black bag jobs. They say law enforcement should be able to "search for keys" without telling a suspect at once.
"What they're saying is that they want to eliminate that Fourth Amendment requirement (barring "unreasonable" search or seizures) or limit it so much to make it meaningless," says Dave Banisar, co-author of the Electronic Privacy Papers.
The Reno-Hamre letter was dated Jan. 7 - but Armey's office tells Wired they received it only Wednesday. Armey, in fact, had written Reno last September about whether the Clinton Administration had any commitment to personal privacy.
"While I understand that this [secret search] provision has been dropped from the most recent draft," the Texas Republican had written at the time, "the fact that it was ever proposed at all raises concerns in Congress."
Replied Reno and Hamre, "You specifically ask whether law enforcement has the authority to search for keys without notifying the subject. Although some courts have permitted the government to conduct a search, in analogous circumstances, without notifying the target at the time of the search, these same courts have held, and we agree, that in a criminal investigation the government must ultimately provide meaningful notice to the target of the search."
