A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology
(1) Congressional Negotiations to Resume on PATRIOT Act Powers
(2) CDT Urges Congress to Improve Checks and Balances in Renewing PATRIOT Act
(3) Make Your Voice Heard: Call for Stronger Civil Liberties Protections in the PATRIOT Act
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
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 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 (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.
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.
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/2005/1217PR_NSLs.html
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.