The approved bill represents a compromise after the two Houses passed differing anti-terrorism Acts earlier this month and contains “sunset” provision which requires a review of the legislation in four years’ time. The original Senate version of the bill, in opposition to the House version, contained no sunset provision. The final version also includes an amendment added by the House majority leader Richard Armey which requires an audit trail when a device such as Carnivore is used under so-called “pen register/ trap and trace authority”, adding a degree of judicial supervision to the FBI’s controversial system.
The bill has been criticised by civil rights groups which argue that it erodes civil liberties. The Executive Director of the US Centre for Democracy and Technology said, “this may prove to be one of the biggest mistakes our Congress has made,” adding that the legislation comprises an unprecedented expansion of surveillance powers.
The legislation enhances federal wire-trapping and electronic surveillance authority and lowers the evidentiary standards that investigators must meet when seeking internet based, or other information in connection with a terrorist investigation. It is the extension of these powers that has received the most attention from Congress and public alike.
Under previous laws, law enforcement officials were required to present a judge with a “probable cause” of the existence of a crime if they wanted to, for instance, track the e-mail of an individual. Now they would only have to prove to the judge that the probe is “relative” to a criminal investigation. Although the bill still requires the issue of a “wiretap” in order for such investigations to proceed, civil liberties protesters say that the ability to read an e-mail address, subject line and URL effects to full disclosure of the e-mail itself.