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Jewish World Review June 3, 2002 /22 Sivan, 5762

Nat Hentoff

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John Ashcroft's in your computer | William Pitt, Earl of Chatham, declared during a debate in English Parliament, "The poorest man may in his cottage bid defiance to all the force of the Crown." Meaning that, in his home, privacy would be secured.

His statement, made during the 18th century, came at a time when the king's agents were extending their power to search homes and businesses.

Pitt said the roof of his cottage "may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter -- all his forces dare note cross the threshold of the ruined tenement."

But that was before J. Edgar Hoover and the FBI and cyberspace. In Attorney General John Ashcroft's USA Patriot Act there is a sneak-and-peek provision, which resembles what in Hoover's time was called "black bag jobs." Last October, Congress overwhelmingly passed the bill. Most members didn't have time to read the lengthy document.

With a warrant, FBI agents may now enter homes and offices of citizens and non-citizens when they're not there. The agents may look around, examine what's on a computer's hard drive, and take other records of interest to them.

These surreptitious visits are not limited to investigations of terrorism, but can also be used in regular criminal investigations. Unlike many parts of the USA Patriotism Act, these searches are not subject to the "sunset clause," which requires Congress to examine in four years whether the new law's incursions on American liberties have gone too far. This section of the USA Patriot Act is now a permanent part of American criminal law. While in the office or home, the FBI can plant a "Magic Lantern" in your computer. It's also called the "sniffer keystroke logger." The device creates a record of every time you press a key on the computer. Unless you are very technically savvy, it's hard to know where the "Magic Lantern" resides.

"What the 'Magic Lantern' records is saved in plain text," says Jim Dempsey of the Washington-based Center for Democracy and Technology -- someone I've consulted repeatedly on advanced technological invasions of privacy. "During the next FBI secret visit to a home or office, that information is downloaded while the agents look for other papers and records they might want to take along."

It is worth noting that a precursor to the "Magic Lantern" was being used during the Clinton administration. I have a copy of a May 9, 1999 application to a United States District Court in New Jersey from a U.S. attorney that authorizes a "surreptitious entry" to search and seize "encryption key-related pass phrases from a computer by installing a specialized computer program ... which will allow the government to read and interpret data that was previously seized pursuant to a search warrant."

Under previous criminal law, when the FBI made a furtive search of homes and offices, the agents had to leave notice that they'd been there, and list what they'd taken. That way the person whose records were taken could immediately challenge the search. The agents may have had a bad lead or gone to the wrong address or may have exceeded their legal authority.

Now, the FBI is entitled to give what is called "delayed notice." For up to 90 days, the agents don't have to inform the occupant of their break-ins, and the FBI can delay notice even further by going to a judge and getting extensions of that 90-day provision. Also, if they don't find anything the first and second times, they can keep coming back, hoping they may yet hit pay dirt. Eventually, they will have to give notice.

Meanwhile, according to a Reuters dispatch, the FBI is developing a way that will allow it to plant the "Magic Lantern" without having to break into a home or office. "'Magic Lantern,'" says Reuters, "would allow the agency to plant a Trojan horse keystroke logger on a target's PC by sending a computer virus over the Internet, rather than require physical access to the computer, as is now the case."

In 1928, Supreme Court justice Louis Brandeis predicted that "ways may be developed, some day, by which the government, without removing secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home." Or of the office.

Who knew how chillingly prophetic Justice Brandeis would be?

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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