A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology

SAFE Act Would Control PATRIOT Powers

1. SAFE Act Would Control PATRIOT Powers

2. Take Action - Support the SAFE Act

3. SAFE Act Adds Much Needed Checks and Balances to PATRIOT Act

4. Congress Begins Hearings on PATRIOT Reauthorization

1. SAFE Act Would Control PATRIOT Powers

Members of the House and Senate have introduced the bi-partisan SAFE Act, which would establish reasonable checks and balances for the surveillance powers of the USA PATRIOT Act, including sneak and peek searches, roving taps, and access to business records. CDT supports the SAFE Act and encourages all concerned citizens to call their representatives in Congress and urge them to co-sponsor the legislation.

Congress has begun hearings on the PATRIOT Act, some provisions of which "sunset" on December 31, 2005 unless reauthorized by Congress.

The SAFE Act would preserve all the investigative powers of the PATRIOT Act, but would seek to prevent overreaching with clear standards and judicial and Congressional oversight and public reporting.

A SAFE Act was introduced last Congress (2003-04), but was never considered. This year, since Congress must revisit the PATRIOT Act, the SAFE Act is the focus of pro-civil liberties efforts to establish the checks and balances that were left behind in the rush to adopt the PATRIOT Act.

The Senate version of the SAFE Act is S. 737, introduced on April 5, 2005 by Sens. Larry Craig (R-ID) and Richard Durbin (D-IL). The House version is H.R. 1526, introduced by Rep. Butch Otter (R-ID) and now cosponsored by 29 Members.

For more information on the SAFE Act: http://www.cdt.org/legislation/109/4

"The PATRIOT Act Debates:" Short pro and con essays by CDT and other experts on PATRIOT Act provisions: http://www.patriotdebates.com

(2) Take Action - Support the SAFE Act

All persons concerned about government surveillance should call their Senators and their Representative to explain why powers like those in the PATRIOT Act, while important to preventing terrorism, should be subject to checks and balances to prevent abuse.

Also citizens can raise concerns about the PATRIOT Act at town hall meetings and at other public events that Members of Congress hold back in their districts. Personal contact is very important. Make your voice heard!

To find out more about how you can support SAFE, go to CDT's Action page at http://www.cdt.org/action/patriot/

(3) SAFE Act Adds Much Needed Checks and Balances to PATRIOT Act

Few Members of Congress believe that the PATRIOT Act should totally sunset. Instead, the focus of debate is on criteria for applying the Act's powers and on oversight and accountability.

The SAFE Act retains all of the powers authorized under the PATRIOT Act, but places reasonable limits on them. It achieves a balance between preserving civil liberties and ensuring that law enforcement and intelligence agencies have the powers they need to combat terrorism.

The SAFE Act makes the following revisions to the PATRIOT Act:

• The PATRIOT Act authorized roving wiretaps for intelligence agencies, authorizing them to obtain a court order to follow a suspected terrorist and tap any phone or computer he uses. Later changes made it possible to obtain a roving wiretap order without identifying either the person or the place to be tapped. The SAFE Act would allow roving wiretaps, but would require the government to identify to the court either the person or the place to be surveilled. The SAFE Act also requires government agents to ascertain what phone or computer a target is using before turning on the tap.
• "Sneak and peek searches" are court-approved, but are conducted surreptitiously. Under this procedure, notice of the search, normally provided at the time of the search, is delayed. The PATRIOT Act authorized these searches for ordinary crimes having nothing to do with terrorism. The SAFE Act would limit the circumstances in which law enforcement could conduct "sneak and peek searches" to those truly serious cases and would require notice within seven days (subject to further extension upon a showing of need).
• One of the most controversial provisions of the PATRIOT Act allows the FBI to obtain a court order forcing disclosure of any business records without a factual showing of need and without even naming the subject of interest. The SAFE Act would require the FBI to show facts indicating a reason to believe the records it sought relate to a suspected terrorist or spy. The SAFE Act also would give the recipient of the order the right to challenge both the order and the gag order that accompanies it.
• The SAFE Act would establish similar safeguards for "National Security Letters," which the FBI can use without court approval to obtain certain categories of business records.
• In terms of the pen register and trap and trace authority for acquiring transactional records (showing who is communicating with whom through the telephone or computer networks), the SAFE Act would require the government to (1) show that its application is supported by facts; (2) report to Congress on use of the technique; and (3) provide delayed notice to individuals who are targets.
• The SAFE Act would limit the definition of "domestic terrorism" to those offenses covered by the federal crime of terrorism, instead of any federal or state crime, as is currently the case.
• The SAFE Act also would require increased public reporting of the use of intelligence wiretaps.

(4) Congress Begins Hearings on PATRIOT Reauthorization

The House Judiciary Committee has begun an in-depth series of hearings on PATRIOT, and the Senate Intelligence Committee held an open hearing on April 19. The Senate Judiciary Committee heard from Administration defenders of the Act on April 5 and will hold a full committee hearing with critics of the Act in early May.

House Judiciary Subcommittee hearing, April 21, 2005:

• CDT testimony on PATRIOT Act, Privacy and Technology, April 21, 2005 http://www.cdt.org/testimony/20050421dempsey.pdf
• Statements of other witnesses, April 21, 2005 http://judiciary.house.gov/Oversight.aspx?ID=144
• Audio of full hearing, April 21, 2005 http://www.cdt.org/publications/vpp/20050421fullpatriothearing.mp3

Senate Intelligence Committee hearing, April 19, 2005:

• CDT Testimony on PATRIOT Act, April 19, 2005 http://www.cdt.org/testimony/20050419dempsey.pdf
• Committee webpage with statements of other witnesses April 19, 2005 http://intelligence.senate.gov/0504hrg/050419/witness.htm
• Audio of April 19 CDT testimony, April 19, 2005 http://www.cdt.org/publications/vpp/20050419dempsey.mp3
• Senate Judiciary Committee hearing, April 5, 2005: http://judiciary.senate.gov/hearing.cfm?id=1439
• Letter urging Congress to take a broader look at civil liberties violations, April 18, 2005 http://www.cdt.org/security/usapatriot/20050418letter.pdf