July 15, 2005 – To many Americans, the threat of someone listening in on the phone, inspecting bank records or secretly searching a home is the stuff of crime novels or totalitarian states, not everyday life.
A growing coalition of civil liberties advocates, however, is warning the public and legislators that under the USA PATRIOT Act, the privacy many have taken for granted is less secure than they think. The Patriot Act is now igniting a heated debate in Congress over the future of the law, nearly four years after it equipped the government with unprecedented powers to investigate peopleâ€™s lives and communities.
By the end of the year, Congress must decide whether the sixteen provisions of the Patriot Act due to expire should be wiped off the books, renewed for another temporary term, or made permanent. In recent months, legislators have held several hearings to review the law, amid proposals either to expand or to curtail the law enforcement powers codified in the Act.
As both chambers of Congress consider Patriot Act reauthorization bills, some lawmakers, pressured by both progressive civil rights organizations and conservative libertarian groups, have resisted reauthorizing the "sunsetting" provisions and proposed various legislative fixes to the Act.
The Department of Justice (DoJ), calling for the permanent renewal of the provisions set to expire, has insisted that the Patriot Act is an effective tool in the so-called "war on terror." One DoJ spokesperson told The NewStandard that while the Act contains "built-in civil liberties safeguards," like periodic reporting to Congress, its main purpose is to "protect the American people â€¦ from terrorists who are plotting against us within our own nation, using our freedom as weapons against us."
Critics fear that law enforcement policies in the vein of the Patriot Act are themselves becoming weapons in a more insidious attack, waged against basic liberties under the rubric of â€œcounter-terrorism.â€
Critics of the Act, on the other hand, fear that law enforcement policies in the vein of the Patriot Act are themselves becoming weapons in a more insidious attack, waged against basic liberties under the rubric of "counter-terrorism."
The sunsetting provision that has generated the most debate is Section 215, the so-called "library provision," which makes it easier for federal investigators, with approval from a secret foreign intelligence court, to access a range of personal documents, including library and business records. At the same time, the Act limits the ability of individuals to bring legal challenges against such probes, automatically restricting record holders from disclosing the order to virtually anyone, including the subject of the investigation.
Civil libertarians have already scored one partial victory against that provision. In June, the House of Representatives passed the "Freedom to Read" amendment, attached to a House appropriations Bill, to block FBI investigators from accessing an individualâ€™s library records or bookstore purchase receipts.
A bill to reauthorize the Patriot Act would make it easier to track peopleâ€™s mail, and would allow officials in some cases to directly access business or personal documents without any court approval.
The most comprehensive bill that aims to curb the powers granted under the Patriot Act is the Security and Freedom Enhancement (SAFE) Act, recently introduced in the Senate. The bill would require that the information requested under Section 215 be clearly relevant to the target of an investigation, and also explicitly enable anyone ordered to hand over documents to consult a lawyer and challenge the order in court.
Beyond concerns about the governmentâ€™s power to mine businesses and institutions for personal data, proposed reforms to the Patriot Act have also focused on the governmentâ€™s enhanced authority to monitor personal communications and to conduct property searches with minimal requirements for disclosure.
The SAFE Act would restrict the Patriot Actâ€™s provision on "roving wiretaps," which allow federal agents to track virtually any person and any telecommunications line that is supposedly linked to a national security threat with limited judicial oversight.
The SAFE Act would also limit the Patriot Actâ€™s provision for delayed notice searches, dubbed "sneak and peek" searches by civil libertarians, which allow law enforcement agents in both terrorism and non-terrorism investigations to indefinitely delay informing the subject of a search, such as a secret inspection of a home.
Rolling back what critics call an end-run around judicial oversight, the SAFE Act would restrict the Patriot Actâ€™s authorization of "National Security Letters," which enable federal agents in certain circumstances to request records directly from banks and Internet service providers without court review, and to automatically gag the recipient of the order. The SAFE Act would allow individuals served with such subpoenas to challenge both the letter and the gag order in court, and would also establish a procedure for suppressing evidence gathered through the order in a criminal prosecution.
Efforts to Expand the Patriot Act
Skeptical that the government will be able to police itself, some civil liberties advocates place hope in grassroots efforts to resist intrusive law enforcement practices.
The Patriot reauthorization bills introduced this week in the House and Senate contain limited amendments like tighter legal standards for some surveillance operations and stronger judicial oversight of the library provision -- but would renew all of the sunsetting provisions.
The Senate Judiciary Committeeâ€™s bill would permanently renew all expiring provisions except the library and roving wiretap provisions, which would instead be extended temporarily with another sunset in 2009.
The USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, introduced in the House, would make the entire Act permanent.
Last month, Senator Pat Roberts (R-Kansas) introduced a bill to reauthorize the Patriot Act that would expand the scope of the law. For federal agents conducting national security investigations, the legislation would make it easier to track peopleâ€™s mail, and would grant the power to serve "administrative subpoenas," which allow officials in some cases to directly access business or personal documents without any court approval. Civil liberties advocates fear that this broad subpoena authority would undercut any potential reforms to the library provision by allowing investigators to bypass the judicial review process altogether.
"It would be essentially secret compelled evidence, without any judicial oversight," said Mark Agrast, a senior fellow with the progressive think tank Center for American Progress, which recently issued a bipartisan Patriot Act reform proposal. "We think thatâ€™s really incompatible with fundamental principles of due process."
Electronic Surveillance a Live Wire in Reform Debate
One of the most politically charged facets in the Patriot reform debate is the realm of electronic information. In questioning the Patriot Act, electronic rights activists have raised deeper concerns about the legal parameters of Internet privacy.
Several of the sunsetting provisions broaden the authority of federal investigators to intercept electronic communications, including email and instant messages.
The major electronic surveillance provision targeted for reform involves "pen-trap" surveillance, which tracks the sending, receipt and routing of electronic and telephone communications. The Patriot Act allows for pen-trap monitoring in both foreign intelligence investigations and regular criminal investigations, though foreign intelligence court-authorized pen-traps are due to expire this year.
The SAFE Act would compel foreign intelligence and criminal law enforcement agents to present facts in the case indicating a clear connection between the pen-trap subject and the purpose of the investigation.
But of greater concern to electronic privacy advocates is how the Patriot Act sweeps Internet communications into the pen-trap category. Critics of the provision warn that the online world blurs the line between "routing information" and content. For instance, in tracing an email under pen-trap authority, law enforcement could uncover not only information about the sender and recipient of the message, but all the names and organizations on a particular group email list.
According to Kevin Bankston, an attorney with the advocacy group Electronic Frontier Foundation, the power to track the "processing and transmitting" of electronic information in fact "smells very much like the content of your communication. Because if they can see what URLs youâ€™re visiting, they can just directly visit all the pages youâ€™re reading, and see what the content of your communications are."
Beyond the Sunset
To critics of the Patriot Act, what is more troubling than any single provision is the uncertainty that surrounds the law.
In Bankstonâ€™s view, "It isnâ€™t so much that every single thing that Patriot did in this context is awful. Itâ€™s that it could be awful, depending on how the DoJ uses it. And we have no idea how the DoJ uses it."
Some members of Congress, joined by watchdog organizations, have called for stricter reporting requirements on the implementation of the law and have pushed forward plans to establish a civil liberties oversight board within the White House.
Still, skeptical that the government will be able to police itself, some civil liberties advocates place hope in grassroots efforts to resist intrusive law enforcement practices.
As part of a national campaign led by the ACLU, more than 380 communities in over 40 states have passed local resolutions to call on law enforcement, government officials and community members to guard against civil liberties infringements related to anti-terrorism measures, including the Patriot Act.
"Itâ€™s going to take organizing on a lot of different fronts," said Jessie Baugher, an organizer with the national activist network Bill of Rights Defense Committee. "I donâ€™t think that legislation is the end-all, be-all. â€¦ I think that weâ€™re just seeing the beginnings of a broader movement to protect civil liberties, in response to a broader crackdown on civil liberties, post 9/11."
Although the debate on the sunsetting provisions of the Patriot Act may end with this session of Congress, activists are working to make sure the more fundamental questions of liberty and security remain on the political horizon.
Lisa Graves, senior legislative counsel of the ACLU, remarked, "We need to preserve our values, and make sure that our precious anti-terrorism resources are focused on terrorists, and not on ordinary law-abiding Americans."