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A new means of snooping

DAN K. THOMASSON

WASHINGTON – Given the never-ending electronic developments that make it easier and easier to pry into the personal lives of Americans, basic privacy is probably a thing of the past. Someday even our thoughts may be vulnerable and actionable if they aren’t politically correct.

Federal law does provide us with a modicum of security from unwarranted snooping by U.S. agents on fishing expeditions. That protection is called a court order. It requires probable cause for installing a wiretap or electronic bug.

But that protection may be inadequate now because of a new technology that thoroughly confuses the issue of what is and isn’t a wiretap. It allows law-enforcement authorities – mainly the FBI, but presumably other agencies as well – to use something called a keystroke logger to find out what you have written on your computer, and to find out before the words are sent over a telephone line. It is when the sending takes place that the law requires a warrant for interception.

The FBI has developed such a device and, to the horror of personal-privacy advocates everywhere, the FBI has used it in a current case. The bureau has refused to reveal how the gadget works. While the current controversy centers around the activities of organized crime, it has the making of an old-fashioned constitutional clash between civil libertarians and those who claim certain exceptions are necessary to guard the overall public welfare.

The entire issue of whether such evidence is admissible in court can be expected to end up in front of the nation’s highest tribunal, and probably will come bouncing back to Congress for modification of the law one way or another.

In the meantime, it wouldn’t hurt to remember this name: Tom Charles Houston.

Houston was a very young presidential aide in the tumultuous days of the Vietnam protest movement when White House paranoia was at an all-time high and aides to Richard Nixon were convinced the anti-war activists, including some pretty nasty bomb throwers, were being financed by our overseas enemies. Houston proposed a solution. Suspend most of the civil protections, including warrants for wiretaps and other electronic means of spying on Americans, in the name of national security and go after the kids.

Unbelievably, the ”Tom Charles Houston Plan,” or just ”The Plan,” as it was known, received the approval of top authorities throughout the intelligence community, the National Security Council and the White House higher echelon. Only one man refused to sign off and the failure to convince him doomed the plan. J. Edgar Hoover saw it as both as an unprecedented attack on civil liberty and a threat to his own control of counterintelligence.

Minus the support of the FBI director, the Nixon White House did not dare to move forward, and so Tom Charles Houston became just another of those misguided figures who haunted Washington during the Watergate era and weren’t heard from afterwards. His aborted plan was a short sensation at a time of great sensationalism.

But it also served as a dramatic reminder of how frail and always close to extinction our personal privacy and individual rights remain, particularly in an age of never-ending electronic improvements. Before, we were dealing with only the telephone lines over which we all communicate even with our computers. Now we are faced with devices that can capture our words at the instant we stroke the keys to write them.

Without the checks and balances and restrictions placed on those we trust to protect us, no matter how well-intentioned they are, almost anything can be abused in the name of public good and too often has been. During debate on an anti-crime bill some years back, when there was a move to dilute the courts’ role in electronic surveillance, a wise congressman warned that it could produce a disaster. He said that every proposed law should be examined from the standpoint of the worst thing that could happen under it. The removal of even some judicial restraint, he said, could result in your being arrested for having a Saturday night poker game with the boys.

The point he was making is that we always should err on the side of protecting our most precious liberties. If, in the process, someone takes advantage of that, it is the price we pay for our freedom. We should require a court order before a law-enforcement agency is allowed to use this latest device to intercept our communications. If that is an impediment to law enforcement, we would all still be able to sleep better at night.

(Dan K. Thomasson is former editor of Scripps Howard News Service.)