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Senate expands prosecutorial powers without debate

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  • Senate expands prosecutorial powers without debate

    Wednesday, October 26, 2005

    Arlington, Virginia—Without debate or dissent, the United States Senate passed legislation yesterday that would allow the Justice Department to obtain wiretaps in antitrust investigations. The bill, entitled the “Antitrust Criminal Investigative Improvements Act of 2005,” (ACIIA) will now be considered by the House of Representatives.

    ACIIA adds the Sherman Antitrust Act of 1890 to the list of “predicate offenses” that permit the Justice Department to seek wiretaps, which must be authorized by a federal judge. Under existing statutes, however, the government is rarely denied wiretap permission. According to the Administrative Office of the United States Courts, only four wiretap requests have been denied in the past ten years out of more than 14,000 applications.

    ACIIA was introduced this past February by the chairman and ranking minority member of the Senate Judiciary Committee's antitrust subcommittee, Sen. Mike DeWine (R-Ohio) and Sen. Patrick Leahy (D-Vermont). After a brief Judiciary Committee hearing earlier this month, the bill was reported out of committee without amendment. The bill was passed yesterday by unanimous consent after Sens. Leahy and Herbert Kohl (D-Wisconsin) made brief statements in support. No senators spoke or voted against the measure.

    The Voluntary Trade Council and the American Bar Association previously issued separate public statements on ACIIA warning of the strong potential for prosecutorial abuse. VTC said ACIIA was “unnecessary and unconstitutional.” The ABA supported the legsislation in principle, but suggested its scope be limited to anti-cartel prosecutions brought under Section 1 of the Sherman Act. ACIIA as passed by the Senate also authorizes wiretaps in Section 2 and 3 investigations for “attempted monopolization.”

    Skip Oliva, president of the Voluntary Trade Council, said ACIIA would subject every business in America to unrestricted government spying. “The antitrust laws can be used to criminalize any business decision, even something as routine as rejecting a contract proposal or updating a software product. Under ACIIA, the Justice Department could wiretap any business meeting whose purpose may be construed as 'attempted monoplization' by prosecutors. This will potentially chill innovation throughout the private sector, as every workplace conversation may be monitored and condemned as criminal conspiracy.”

    Oliva said that he expected the House to pass ACIIA and for President Bush to sign the bill into law: “The Bush administration has never said no to any expansion of prosecutorial power, and ACIIA will prove to be no exception.”

    * * *

    For additional information contact Skip Oliva at 703-740-8309 or
    [email protected] VTC's full analysis of ACIIA can be downloaded at <>.
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