Echelon fears could force new laws for America

Concerns that US intelligence agencies spy on ordinary American citizens could cause Nixon-era protections to be strengthened for the Internet age
Written by Robert Lemos, Contributor

As more information surfaces about Echelon, a secret US program to extensively monitor foreign communications, policy analysts and legislators have become increasingly worried that such operations have been frequently used to place Americans under surveillance instead.

The end result: US laws covering operations such as Echelon may be strengthened to protect citizens' communications from frequently being caught by a comprehensive electronic net.

"There are laws drafted in the late 70s that haven't been updated since then. Now they have to deal with 21st century technology," said Brad Alexander, communications director for Representative Bob Barr, a Georgia Republican who called for investigations of United States intelligence-gathering activities last year. "As communications take place in the over-arching Internet, a lot of questions remain unanswered," said Alexander.

Earlier this year, officials from the National Security Agency (NSA) -- the government organisation responsible for overseeing Echelon -- and the Central Intelligence Agency (CIA) presented their guidelines used to determine the legality of each interception to the House Permanent Select Committee on Intelligence. Yet, the inherent secrecy involved in the agencies' actions and the deliberations of the committee have done little to answer the charges.

"This is more a matter of getting a sense of how they interpret relatively old statutes," said David Sobel, general counsel for the Electronic Privacy Information Center (EPIC). EPIC has requested the documents handed over to the committee by both the CIA and the NSA using a Freedom of Information Act request.

Presently, US intelligence-gathering activities -- including Echelon -- fall under the Foreign Intelligence Surveillance Act of 1978, passed after Senate hearings of the mid-70s, which investigated intelligence agencies extensive surveillance of US citizens including anti-Vietnam-War demonstrators. Yet, at that time, the Internet had just started to grow, and the World Wide Web did not exist. "The Foreign Intelligence Surveillance Act (FISA) goes back to a different world then we are in now," said Sobel.

Information Age problems now abound.

Jurisdiction becomes a major issue on the worldwide Internet: If US citizens in Alaska and California are chatting on the Internet, can the NSA intercept the communications in Canada? And, the line between observation and surveillance is blurred on the Net: Are Web page requests public information or are their capture considered surveillance?

Such issues may pose conundrums for constitutional lawyers, but the NSA, unsurprisingly perhaps, believes that current laws suffice. While the agency would not comment for this article, USAF Lt. General Michael V. Hayden, director of the NSA, told the House Permanent Select Committee on Intelligence in April that "the privacy framework [of the laws] is technology neutral and does not require amendment to accommodate new communications technology."

Under FISA, a judge may determine US citizens to be a foreign agent -- thus giving intelligence operatives the OK to spy -- only if there is information that points to the individual being a spy, terrorist, saboteur, or an accomplice. "A concerted effort [has been] made to balance the country's need for foreign intelligence information with the need to protect core individual privacy rights," said Hayden.

While Sobel stressed that it's too early to tell whether the materials they have received so far will indicate any wrongdoing, the group is working with Duncan Campbell, journalist and expert on Echelon, to create a report outlining the extent that the NSA has been watching Americans.

The group expects to release a report on its findings late this summer.

Go to ZDNet's Echelon Special

The British are keeping a stiff upper lip, the US simply avoid mentioning it and the French believe it has been stealing secrets from France for years. Go to the TalkBack forum to tell us what you know and think about Echelon.

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