Clinton's legacy already defined

By Lisa S. Dean
web posted September 18, 2000

As Clinton scurries around the country in an attempt to find a legacy that will define the eight miserable years this country has experienced during his presidency, I think it's safe to say that he should call off the dogs because his legacy has already been defined.

Bill ClintonPart of that legacy includes stripping the legislative branch of government of their Constitutional authority by simply bypassing its 535 members altogether by simply signing an executive order to get what he wants. In the words of former Clinton aide, Paul Begala, "Stroke of the pen. Law of the land. Kinda cool." Well, if you say so, but I don't think the history books will agree.

But Clinton's legacy will include not only stripping other branches of government of their Constitutional authority, the American people have also been stripped of theirs as well. With the Attorney General making statements such as "the Constitution is an evolving document", in other words, the meaning that the Founding Fathers originally intended with regard to our rights, can be amended or changed into something completely different if the government decides it should.
And that, my friends, gets at the heart of the Clinton legacy.

Not only have we witnessed a full throttle attack on the Second Amendment in this country, under the guise of protecting children, with the Administration claiming that the Constitution is outdated on that issue, but we have also witnessed a continual attack on the Fourth Amendment as well, with the FBI Director claiming that "we need a Fourth Amendment for the Information Age." In fact, if this administration had its way, there would be no Fourth Amendment at all -- and that's precisely what the Clinton/Gore Justice Department has attempted to do.

Whether through regulations, executive orders and presidential decision directives, or complete misinterpretation of laws, the DoJ has worked very hard to strip us of what's left of our right to be secure in our persons, houses, papers and effects.

The 1994 Digital Telephony Law passed by Congress was never intended for the purpose of granting more surveillance power to law enforcement, only to preserve its capabilities in the high-tech arena. FBI Director Louis Freeh at the time, told Congress that he did not wish for more power, only the ability to keep up with the industry's technological advancements.

But before the ink had even dried on the newly signed law, that agency was busy reinterpreting it in such a way that it actually believed that it had been granted the legal authority to design the telecommunications systems in the United States.

The industry was outraged and the battle over the law's interpretation began. The Federal Communications Commission was tasked with the final interpretation. Did the law give law enforcement the authority to require industry to install location-tracking features in all cell phones manufactured in the US or not? Did it allow a break with traditional law enforcement practices and allow agents to get a warrant to tap all the phones within the vicinity of a suspect rather than the suspect's line itself?

While the FCC has taken nearly six years to accomplish its task of a final interpretation of the law, in the meantime, it has acted as a puppet for the FBI granting its every wish to expand its surveillance powers.

The FCC has been responsible for allowing the FBI to monitor much more than what law enforcement has traditionally been able to monitor through a court-ordered wiretap. When tapping a cell phone, they are actually legally able to get the content of the call itself. The traditional method for this practice consisted of investigators undergoing a rigorous test to see if the need for such information passed Constitutional muster. The reason for such a procedure is to ensure that no one's Constitutional rights are violated. Now under the Clinton Administration, with the FCC's ruling on the law, that is no longer the case with regard to cell phones. Instead, only a "pen register", a surveillance device that captures the phone number for the outgoing phone call, is required. Pen registers don't capture information such as whether the call was received or any content and therefore the legal standard for obtaining one is so low to the point of being worthless.

According to the FCC, cell phone carriers were also required to build additional surveillance features into their networks allowing law enforcement to track users' whereabouts.

Just a couple of weeks ago, in a unanimous decision by the three judge panel of the Federal Court of Appeals for the District of Columbia, the FCC's decision was deemed "an entirely unsatisfactory response" that failed to consider both the privacy provisions of the 1994 Digital Telephony law and the financial cost to industry. The FBI also sought additional features such as bank account and credit card numbers dialed over the phone. The Court rejected those provisions as well.

The Court also maintained that law enforcement is required to maintain strict Constitutional standards already established with regard to call content.

The fact that this court ruled in the manner in which it did with regard to Fourth Amendment search and seizure is a positive step but it is likely not enough. It will take a new Congress under a new administration to reestablish its Constitutional authority and reign in these two agencies to once again restore our Constitutional rights. In short, it will be up to the new Congress to reverse the Clinton legacy.

Lisa Dean is Vice President for Technology Policy at the Free Congress Foundation.

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