[NetBehaviour] Civil Liberties at Issue in PATRIOT Act

Fri Jun 3 12:12:57 CEST 2005

*Civil Liberties at Issue in PATRIOT Act*

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

1.  Civil Liberties at Issue in PATRIOT Act Reauthorization
2.  Department of Justice Proposes Expansion of PATRIOT Act
3.  Proposed Checks and Balances for PATRIOT Act Provisions
4.  Take Action - Make Your Voice Heard

_______________________________________________

1. Civil Liberties at Issue in PATRIOT Act Reauthorization

Congress has begun drafting bills that would modify the PATRIOT Act,
some provisions of which "sunset" on December 31, 2005 unless
reauthorized by Congress.

About half of the 16 provisions that sunset are not controversial.
Others, however, are very troubling.  They include authorization for
the FBI to obtain court orders for huge amounts of data with no
factual basis and for "roving taps" in intelligence cases without
identifying either the target or the location to be surveilled. Other
controversial provisions, such as the one setting low standards for
"sneak and peak" searches in ordinary criminal cases, do not sunset
but are being reexamined.

In the current climate, there is essentially no likelihood that the
PATRIOT provisions will sunset completely.  The focus of the debate
has been on strengthening judicial controls and Congressional
oversight of the Act's authorities or extending the sunsets to keep
pressure on the Executive Branch to use the authorities cautiously.
With support from CDT and other civil liberties groups, Members of
Congress from both parties have proposed amendments that would place
important checks and balances on these authorities.  Among the
leading bills to limit the PATRIOT Act is the bi-partisan SAFE Act.

_______________________________________________

2.  Department of Justice Proposes Expansion of PATRIOT Act

After weeks of Congressional hearings, and just as consensus seemed
to be emerging about the need to set appropriate limits on PATRIOT
Act powers, the Department of Justice has proposed amendments that
would go in exactly the opposite direction, including giving the FBI
"administrative subpoena" authority-the power to write its own orders
for disclosure of records without prior judicial approval.

Administrative subpoenas are typically suited for the regulatory
context-to investigate the administration of federal benefits
programs, for example.  To say the least, the FBI is not an
administrative agency.  Administrative subpoenas have also been made
available in certain criminal contexts, where the rigorous checks and
balances of the criminal justice system provide much-needed
protection against abuse. It would be especially unwise to extend
this power to intelligence investigations, which are broader, more
secretive, and less subject to scrutiny than criminal cases.

Under current law, the FBI already has far-reaching compulsory powers
to obtain documents when it is investigating terrorism, under both
its criminal and intelligence authority.  Giving the FBI this new
unfettered power would further erode the standards and protections on
government access to personal information.

The Senate Intelligence Committee recently met in private to draft
legislation that would expand the FBI's powers under the PATRIOT
Act-giving the FBI administrative subpoena power and the ability to
copy the outside of letters and mailings without approval of the US
Postal Service.  The committee failed to reach a consensus and will
reconvene on June 7 for another drafting session.

For more information about administrative subpoenas:

CDT testimony on administrative subpoenas, May 24, 2005
http://www.cdt.org/testimony/20050524dempsey.pdf

Senate Intelligence Committee hearing, May 24, 2005 - statements of
other witnesses:
http://intelligence.senate.gov/0505hrg/050524/witness.htm

Joint letter of civil liberties groups urging Senate Intelligence
Committee members to reject administrative subpoena authority, May
23, 2005:
http://www.cdt.org/security/20050523jointletter.pdf

_____________________________________________________

3.  Proposed Checks and Balances for PATRIOT Act Provisions

CDT has testified this year at 6 hearings on the PATRIOT Act in the
House and the Senate, supporting amendments to the PATRIOT Act to
provide appropriate safeguards to protect civil liberties.  CDT has
advocated the following reforms to the PATRIOT Act, most of which are
in the bipartisan SAFE Act:

* Require particularized suspicion and a factual basis for access to records

The PATRIOT Act allows the FBI to obtain a court order forcing the
disclosure of any business records upon the mere assertion that the
records are "sought for" an authorized intelligence investigation.
Under the PATRIOT Act, judges are mere "rubber stamps."  CDT supports
giving judges real oversight authority by requiring the FBI to
present some facts giving reason to believe that person to whom
records pertain is a terrorist or a spy.  CDT also supports allowing
the recipient of the order to challenge both the disclosure and the
"gag order" that accompanies it.

The same principle should apply to other sections of the PATRIOT Act
that allow FBI officials to obtain certain transactional records
without any judicial approval, using so-called "National Security
Letters."  CDT supports a requirement that NSLs, like other records
requests, be subject to judicial approval upon a fact-based
application.

*   Provide due process when secret intelligence evidence is used in
criminal cases

Under the PATRIOT Act, criminal prosecutors have been able to
initiate and control intelligence surveillances.  When evidence
obtained under the intelligence provisions is used in criminal cases,
the defendant should be able to review and challenge the evidence, as
is the case in normal criminal cases.

*   Tighten the standards for sneak and peek searches

The PATRIOT Act allows the government to delay notice of a
court-approved search.  The provision allowing sneak and peek
searches does not sunset, but it should be reexamined nonetheless. In
addition to limiting the initial period of delay to 7 days, with
extensions, CDT supports narrowing the circumstances in which
notification may be delayed, to ensure that these searches are used
only under truly extraordinary circumstances.

*   Modify the definition of "domestic terrorism"

The PATRIOT Act's overbroad definition of domestic terrorism could
include acts of civil disobedience by political organizations. While
civil disobedience is and should be illegal, it is not necessarily
terrorism.  CDT advocates limiting the definition to those offenses
covered by the federal crime of terrorism.

CDT's testimony provides further information on these and other
PATRIOT Act issues:

Overview, including discussion of general principles for government
access to information and detailed discussions of specific PATRIOT
and SAFE Act provisions:

Senate Intelligence Committee, April 19, 2005
http://www.cdt.org/testimony/20050419dempsey.pdf

Senate Judiciary Committee hearing, May 10, 2005:
http://www.cdt.org/testimony/20050510dempsey.pdf

House Intelligence Committee hearing, May 11, 2005:
http://www.cdt.org/testimony/20050511dempsey.pdf

Intelligence searches - why they are different and require special
checks and balances,
April 19, 2005: http://www.cdt.org/testimony/20050419dempsey.pdf
May 24, 2005: http://www.cdt.org/testimony/20050524dempsey.pdf

Emergency disclosure of communications without court approval, May 5, 2005:
http://www.cdt.org/testimony/20050505dempsey.pdf

Provisions on seizure of stored communications, interception of
computer trespasser communications and nationwide service of search
warrants for electronic evidence, discussion of the "storage
revolution," April 21, 2005:
http://www.cdt.org/testimony/20050421dempsey.pdf

Administrative subpoenas, May 24, 2005:
http://www.cdt.org/testimony/20050524dempsey.pdf

________________________________________________

4.  Take Action - Make Your Voice Heard

CDT urges individuals to make their voices heard in these important debates.
SAFE Act: Call your Senators and your Representative in the House and
urge them to co-sponsor the SAFE Act.  To get the phone numbers for
your Members of Congress, and more background information, go to
http://www.cdt.org/action/patriot/

Administrative subpoenas: If one of your Senators is on the
Intelligence Committee, call and urge opposition to the
administrative subpoena power.  For information and telephone
numbers, go to http://www.cdt.org/action/subpoena/

------------------------------
Detailed information about online civil liberties issues may be found
at http://www.cdt.org/ .

This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/policyposts/11/12 .

Excerpts may be re-posted with prior permission of ari at cdt.org

Policy Post 11.12 Copyright 2005 Center for Democracy and Technology

_______________________________________________
http://www.cdt.org/mailman/listinfo/policy-posts
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.netbehaviour.org/pipermail/netbehaviour/attachments/20050603/b0d28f52/attachment.htm>