Feds Sending Mixed Messages About Online Privacy.

WHICH do you consider more private: The programs you watch on TV or the e-mail you exchange with your friends and co-workers?

Given the quality of network TV these days, it's understandable if some people choose the former. If I wasted time watching "Big Brother" or "Everybody Loves Regis" or whatever they're calling this summer season drivel, I certainly wouldn't want anyone to find out.

Still, I think most of us would feel more violated if someone spied on our e-mail. These messages, set down in black type on a blank screen, include our daily schedules, our thoughts and dreams, our favorite jokes -- in short, a fair amount of ourselves.

So why does federal law provide far greater privacy protection for our television viewing habits than it does for our e-mail messages?

If federal officers want to intercept the e-mail you send on a standard Net connection, they need only convince a judge there's probable cause to believe you're committing a crime. This is the only rule governing when and where the FBI may feed its well-publicized Carnivore snooping system.

To secure a wiretap for your cable TV line, on the other hand, the feds must possess "clear and convincing" evidence that you're committing a crime -- a higher standard than "probable cause." And get this: The government also must inform you of their wiretap request so you have a chance to oppose it in court.

This requirement, created by the Cable Act of 1984, pretty much eliminates any reason for bothering with a wiretap in the first place. The only people dumb enough to commit crimes when they know the feds are watching are already busy filling out Jerry Springer's studio audience.

Of course, back in 1984, it must have been difficult to imagine a crime that could be solved by tapping someone's cable TV line. Maybe Congress was considering outlawing "Diff'rent Strokes" -- which, come to think of it, might have avoided a lot of unpleasantness later on.

These days, though, that old law is creating new problems for investigators who want to snoop on the Net traffic of cable modem users. If you're lucky enough to have one of these high-bandwidth connections, you can rest assured the feds aren't tapping it. If they were, you see, they'd have had to tell you about it.

That explains why the White House announced plans last month to propose new legal requirements for online surveillance. Chief of Staff John Podesta said the standards would balance the privacy rights of computer users against the needs of law enforcement.

The new rules would require online surveillance to comply with the same standards used for listening in on telephone conversations. That means the FBI's wiretap requests would have to be approved by high-level officials in the Justice Department and could target only a limited number of serious crimes. It also means evidence gathered outside these rules would automatically be excluded in court.

This would be an improvement for users of standard Net connections but a significant loss for those using cable modems. To the White House, this looks like a compromise.

To privacy advocates, though, it smells like a sellout. If we need to adopt a universal standard, they say, why not adopt the higher protections afforded to cable subscribers?

Their argument carries some weight. The government's power. to spy on its citizens is, short of military might, the most dangerous power at its disposal. It's not too much to ask that federal agents wait until they've collected clear evidence of wrongdoing before putting that power to use.

Once that level of proof is met, however, I don't think we ought to require the FBI to give suspects advance notice of their online wiretaps. Crime fighting in this multimedia age is difficult enough without forcing the feds to give online criminals the chance to phone a friend.