http://www.cdt.org/publications/policyposts/2006/1
(1) Congressional Negotiations to Resume on PATRIOT Act Powers
On December 22, 2005, before adjourning for the holidays, Congress
approved a month-long extension of the "sunsetting" provisions of the
PATRIOT Act. That extension expires February 3, 2006, leaving Congress
with a short window to address remaining privacy and civil liberties
concerns.
Congress passed the short-term measure after
four Republican Senators
joined all but two Democratic Senators in opposing a proposal to
permanently reauthorize the PATRIOT Act without adequate checks and
balances limiting the Act's more intrusive powers.
A tentative deal for PATRIOT Act renewal (called a "conference report")
reached before Christmas would not have required government
investigators to focus on suspected terrorists when accessing personal
records. The weak standards in the bill would have continued to allow
the government to engage in fishing expeditions through sensitive
records.
The successful civil liberties opposition to the permanent renewal of
the PATRIOT Act has strengthened the position of privacy advocates in
Congress, but the debate is by no means over. Representatives who
approved the weak standards of the conference report are unlikely to
change their views unless they hear from constituents.
For more information on the PATRIOT Act, go to:
http://www.cdt.org/security/usapatriot/overview2005.php and
http://www.cdt.org/security/010911response.php
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(2) CDT Urges Congress to Improve Checks and Balances in Renewing
PATRIOT Act
The recent revelation that the National Security Agency had engaged in
domestic surveillance without judicial approval makes it even more
urgent to add civil liberties protections to the PATRIOT Act conference
report. Congress should take this opportunity to forge bipartisan
consensus and include some of the modest but meaningful checks and
balances that were included in the version of the PATRIOT Act
unanimously approved by the Senate last summer.
The important civil liberties protections in the Senate bill that were
omitted from the conference report include the following:
Section 215 Business Records Orders Section 215 of the PATRIOT Act
authorizes the FBI to obtain secret court orders for disclosure of
personal records held by any third party entity, whether a business or
non-profit, without specifying whose records are being sought or why.
Before this is renewed, Congress should adopt the language from the
Senate bill that requires the government to show a connection between
the records it seeks and a suspected terrorist or someone connected to
a suspected terrorist.
CDT believes the government should have the authority to obtain the
records it needs to fight terrorism.
But it should not be allowed to
collect information about innocent people just because those people
happen to use the same bank or the same library as suspected
terrorists. And when the government does scoop up large quantities of
data, it should be required to destroy any records that are unconnected
to terrorist suspects.
Section 215 orders come with gag orders that prevent people who receive
them from saying anything about them.
Congress should include an
express right to challenge such non-disclosure (gag) orders. The
government's assertion that a disclosure would harm national security
should not be conclusive.
National Security Letters
National Security Letters (NSLs) are in many ways worse even than
Section 215 orders, because NSLs are issued by FBI agents with
no judicial approval. Maybe that is why FBI agents have issued
over 30,000 NSLs since the PATRIOT Act was passed in 2001. The
sections of the PATRIOT Act that weakened standards for issuance of
NSLs do not sunset, but given recent revelations about the government's
expansive use of NSLs, Congress should take this opportunity to address
the civil liberties issues posed by this extraordinary device.
The conference report issued before the holiday recess failed to curb
NSLs, which are issued without any showing of a connection to a
suspected terrorist. The current standard of "relevance" allows the
government to conduct unchecked fishing expeditions that can sweep up
the records of innocent Americans.
In addition, while the conference report gave recipients the right to
challenge an NSL, this would not be a very meaningful reform. The
recipients of NSLs, like recipients of Section 215 orders, will usually
be businesses that are unlikely to expend the time and money to
challenge the government on behalf of an individual customer –
especially when the request is kept secret from the person whose
records are sought. If anything, the conference report actually expands
NSL powers by providing a judicial enforcement provision and creating a
new crime, punishable by up to five years in prison, of willful
disclosure of an NSL with intent to obstruct an investigation.
To reform the NSL process, Congress should look to legislation
introduced in the House last month by Rep. Jane Harman (D-CA) and the
other Democrats on the House Intelligence Committee.
This legislation
would require the government to show a connection between records
sought and a terrorist or foreign power, would require NSLs to be
approved by the FISA court or a federal magistrate judge, and would
create an expedited electronic filing system for NSL applications. If
Congress cannot agree now on sound standards for NSLs, then the
provision should sunset them after four years to ensure they are
properly reviewed.
Sneak and Peek Searches
The conference report failed to include the Senate bill's
limitations on physical searches of homes and offices carried out
without simultaneous notice to the homeowner or other person
whose privacy is being invaded. Although some courts had allowed
"sneak and peek" searches before the PATRIOT Act, they were
constitutionally suspect and the courts had normally allowed the
government to delay giving notice of the search for only 7 days.
The
PATRIOT reauthorization conference report would have allowed notice to
be delayed for 30 days, a clear expansion of the limits that federal
courts had deemed reasonable. Congress should adopt the seven-day limit
from the Senate bill.
Roving Wiretaps
The conference report fails to include language from the Senate
bill that would require a roving wiretap application to contain
sufficient information to describe the specific person targeted
with particularity. The conference report should also include an
ascertainment requirement, which would require the government to
determine that the target is likely present before surveillance begins.
Press release from office of Rep. Jane Harman on NSL legislation:
http://www.house.gov/harman/press/releases…217PR_NSLs.html
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(3) Make Your Voice Heard: Call for Stronger Civil Liberties
Protections in the PATRIOT Act
Calls from ordinary citizens concerned with government mistakes and
overreaching encouraged Senators to block renewal of the PATRIOT Act
without civil liberties protections. Very soon, the Senate and House
will take up the PATRIOT Act extension. Senator Russ Feingold issued a
statement after Congress approved the one-month extension vowing to
fight to include meaningful checks and balances in the law, but he
shouldn't be left alone. Tell your Senators and Congressmen to insist
that the Conference Report include meaningful checks and balances.
Go to
http://www.cdt.org/action/patriot/ . Plug in your zip code and
we'll give you the Washington, DC phone numbers of your members of
Congress. We'll tell you how they voted on the defective conference
report before the holidays. Don't send email - they won't read it in
time, if ever. But their staffs do count phone calls, and constituent
input has a real impact.
We have everything you need, including advice for the shy or
tongue-tied.
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Detailed information about online civil liberties issues may be
found at
http://www.cdt.org/.
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These are but a few of the issues that most pressingly need to be addressed.
Read the material, think about it and then
please call your Representatives! Pete
*Also, please read this pdf:
http://www.cdt.org/security/usapatriot/200…RIOTsunsets.pdf so that you can get past all the hype currently being put out.
