REMEMBER THE PATRIOT ACT?
On July 21, 2005, the Senate unanimously approved, with modifications, a bill sponsored by Senators Arlen Specter (R-PA) and Dianne Feinstein (D-CA). The Specter/Feinstein bill would increase public reporting of how some of the act's powers are used and would place greater restrictions on certain warrants, wiretaps, and email monitoring. The bill would make 14 of the 16 expiring provisions permanent. Sections 206 (see below) and 215 would expire in December 2010. (Section 215 allows federal agents to obtain warrants for books, documents, and other items from hospitals, businesses, libraries, and bookstores, among other facilities.)
The Specter/Feinstein bill would require personal authorization from the FBI director or deputy director for any orders seeking people's records of library use or book or firearms purchases or to get access to medical records. It would also require a "statement of facts'' from investigators telling why they need people's private records and requires more information before a John Doe wiretap would be allowed. However, on July 20, Congress had already voted by a wide margin to renew all expiring provisions of the Patriot Act. The differences between the House and Senate versions will be resolved in committee.
According to The Gallup Organization, the public is wary but ignorant about the USA Patriot Act. In January 2002, 47% of Americans wanted their government to stop terrorism even if it reduced civil liberties. By 2005, the people polled were statistically divided half and half for and against the Patriot Act. At the same time, only half of the people polled claimed to know some of the provisions, and 29% knew nothing about the Patriot Act.
In focus groups held by the LWVUS, the League also confirmed that people lack deep knowledge about civil liberties. Dr. Xandra Kayden--our September luncheon speaker--says, "The good news is that people can change their minds if presented with good arguments in the group; the bad news is that they have very little knowledge of how government works." Xandra points out that in late 2004 the highest court of appeal in the United Kingdom rejected the "detainee" provision in the U.K.'s anti-terrorism law. One of the nine justices who considered the matter wrote, "The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed...by Nazi Germany. ... The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these."
So, to refresh our memories, the following are excerpts from "USA Patriot Act: The Good, the Bad, and the Sunset" by John Podesta, American Bar Association Human Rights Magazine Winter 2002:
"On October 26, President Bush signed into law the Patriot Act, which makes significant changes in the legal structure within which the law enforcement and intelligence communities operate. Notwithstanding the haste with which Congress acted, the provisions of the new law relating to electronic surveillance, for the most part, are a sound effort to provide new tools for law enforcement and intelligence agencies to combat terrorism while preserving the civil liberties of individual Americans. Some changes simply update our surveillance laws to reflect the fact that we live in a digital age. Other sections expand the surveillance powers of our law enforcement and intelligence communities in ways that make sense in light of the new threats facing our country.
"When we decide, however, to expand surveillance powers to track terrorists, all residents, not just the terrorists, are affected. A common problem running through many of the...authorities contained in the Patriot Act is the reliance on executive branch supervision rather than meaningful review by a neutral magistrate of the potentially highly intrusive surveillance techniques that are authorized.
"Section 203 [Sections (b) and (d) were scheduled to expire 12/2005]
Previously, domestic law enforcement and foreign intelligence collection operated on separate tracks. This separation was seen as necessary because of the very different legal regimes that are associated with domestic law enforcement and foreign intelligence collection. ...Section 203 facilitates cooperation between domestic law enforcement and foreign intelligence collection by allowing 'foreign intelligence information' gathered in criminal investigations by domestic law enforcement to be shared with the intelligence community. ...The definition of 'foreign intelligence information'...is quite broad. The sharing of such a broad range of information raises the specter of intelligence agencies, once again, collecting, profiling, and potentially harassing U.S. persons engaged in lawful, First Amendment-protected activities. ..."Section 206 [Was scheduled to expire 12/2005]
The Foreign Intelligence Surveillance Act (FISA) facilitates domestic intelligence gathering related to foreign powers by allowing the collection of such information without the legal restrictions associated with domestic law enforcement. Section 206 of the Patriot Act modernizes FISA wiretap authority. Previously, FISA required a separate court order be obtained for each communication carrier used by the target of an investigation. ...The main difference between roaming wiretaps under criminal law and the Patriot Act FISA authority is that criminal law requires that law enforcement 'ascertain' that the target of a wiretap is actually using a device to be tapped. Section 206 contains no such provision. ...For example, without the ascertainment requirement, it is conceivable that all the pay phones in an entire neighborhood could be tapped if suspected terrorists happened to be in that neighborhood. ...""Section 213 [Commonly known as 'Sneak and Peek']
The 1986 Electronic Communications Privacy Act granted the government the authority to delay notification for search of some forms of electronic communications that are in the custody of a third party. Section 213 statutorily extends the ability of law enforcement to delay the notice to any physical or electronic search with a showing that notice would create an 'adverse result.' ...To a large extent, section 213 simply codifies existing law enforcement practice in a manner consistent with recent court decisions. Nevertheless, the 'adverse result' standard,...by virtue of its ambiguity, creates the potential for abuse. ..."Section 216
The Patriot Act substantially changes the law with respect to law enforcement access to information about computer use including Web surfing. ...The government can get this information with a mere certification that the information likely to be obtained is relevant to an ongoing criminal investigation. ...The government can learn a tremendous amount of information about you from where you shop to what you read to who your friends are through the use of so-called transactional records. The potential for abuse, for invasion of privacy, and for profiling citizens is high. That's why it is disappointing that the authors of this provision settled for an incredibly weak standard of judicial oversight. A better analogy might have been to the provision of the Electronic Communications Privacy Act governing access to the stored records of Internet service providers, which permits a judge to satisfy herself that there are specific and articulable facts that the information sought is relevant and material to the ongoing investigation."Section 217 [Was scheduled to expire 12/2005]
If someone unlawfully enters your home, you can ask the police to enter your premise without a warrant to investigate. Section 217 clarifies that similar authority applies to 'computer trespassers.' This allows law enforcement, with the permission of the owner of a computer, to monitor a trespasser's action without obtaining an order for a wiretap. ...A 'computer trespasser' is defined as anyone who accesses a protected computer (which includes any computer connected to the Internet) without authorization. Individuals who exceed their terms of service agreements with their Internet service provider or individuals who use their computer at work to download an MP3 file could be subject to intrusive government monitoring. ..."Section 218 [Was scheduled to expire 12/2005]
Prior to the enactment of FISA in 1978, the intelligence community had virtually unchecked authority to conduct domestic surveillance of U.S. citizens and organizations. FISA created a special court to ensure that 'the purpose' of domestic intelligence gathering was to obtain foreign intelligence information. The FISA court structure and sole purpose standard attempted to balance the need to collect foreign intelligence information without the constraints of the Fourth Amendment with increased protections for Americans exercising their First Amendment rights. ...Section 218 loosens the standard of a FISA investigation by requiring a showing that the collection of foreign intelligence information is 'a significant purpose' rather than 'the purpose' of an investigation. Section 218 is an important tool for counter-terrorism but, since probable cause is not required under FISA, it also raises the possibility that U.S. citizens who are not terrorists could have their homes searched and communications monitored without probable cause. ..."--The preceding are excerpts from "USA Patriot Act: The Good, the Bad, and the Sunset" by John Podesta, American Bar Association Human Rights Magazine Winter 2002
