The following is a copy of a notice that I received this week about the reauthorization of the PATRIOT Act. What good does it do to write to ones elected representatives when all you get is a "Thanks you for writing" reply and the following is still allowed to happen.
President Signs PATRIOT Act Reauthorization Bill Lacking Civil Liberties Protections
On March 9, 2006, the day before sixteen provisions of the PATRIOT Act were to expire, President Bush signed a PATRIOT Act reauthorization bill and a group of minor amendments, making most of the Act permanent without the modest but meaningful civil liberties protections that had enjoyed bipartisan support in the House and Senate.
Last summer, the House and Senate passed different bills to reauthorize the PATRIOT Act. The Senate version was significantly better for civil liberties than the House version. However, when Congressional negotiators met to iron out their differences, they produced a weak combined bill that failed to contain the reforms in the Senate version.
That House-Senate "conference report" passed in the House but was blocked in the Senate last December when four Republican Senators (John Sununu (NH), Chuck Hagel (NE), Lisa Murkowski (AK) and Larry Craig (ID)) joined all but two Democratic Senators in a filibuster.
Last month, under tremendous pressure from the White House, the four Republican Senators agreed to support renewal of the PATRIOT Act with only minor changes to the conference report. Among the provisions in the PATRIOT Act as renewed:
- It still allows the government to obtain business records under Section 215 without showing that the target of the request is connected to terrorism.
- The recipient of a business records order under Section 215 can challenge the order in court and, after a year, can challenge the prohibition (the "gag") against disclosing the order. (Recipients probably already had the right to challenge both without waiting.)
- A judge can overturn the gag order upon finding there is no reason to believe that disclosure of the existence of the underlying records disclosure order may endanger national security or interfere with an investigation or diplomatic relations or endanger the life or physical
safety of any person, but the government's certification that disclosure would endanger national security or interfere with diplomatic relations will be treated as conclusive unless made in bad
faith.
- The Attorney General must adopt minimization procedures governing the retention and dissemination of information obtained under Section 215 business records orders, but it does not require minimization procedures for NSLs. It merely requires the Attorney General and Director of National Intelligence to submit a report on the feasibility of applying minimization procedures to NSLs after the Inspector General of the Department of Justice conducts a study of how the government uses them.
- It clarifies that libraries are not subject to NSLs except to the extent they provide email access. Libraries are still subject to Section 215 business records orders, but the FBI Director must personally approve applications for disclosure of library records that identify a person.
- The FBI Director's personal approval is also required for disclosure of other records that would identify a person, namely bookstore records, records of firearms sales, and medical, tax and educational records.
- It specifies that notice of "sneak and peek" searches can be delayed for 30 days, a clear expansion of the limits that federal courts had deemed reasonable.
- It eliminates the catch-all provision ("unduly delay a trial") from the list of circumstances under which the government can conduct "sneak and peek" searches, but still allow these searches when notice to the target would "seriously jeopardize" an ongoing investigation.
- Three provisions are subject to a new four-year sunset--Section 215 business records orders, roving wiretaps, and the "lone wolf" provision, which applies the Foreign Intelligence Surveillance Act to non-US citizens who are not connected to foreign powers or terrorist groups.
- It allows roving wiretaps without requiring the government to identify the target of surveillance (the government instead can describe the specific target) and without requiring the government to ascertain that the target is using the equipment or facility before it begins monitoring.
- The government is required to provide after-the-fact notice to the court whenever a roving wiretap is directed at a new facility or place.
- It increases the duration of FISA surveillance orders and FISA pen register and trap and trace orders for non-US persons from 90 days to up to one year.
- It requires disclosure to the government of additional information under FISA pen register and trap and trace orders, including information about anyone communicating with the target of the order.
- It requires additional reporting to Congress on the use of certain PATRIOT Act powers.
The reauthorization also contains additional provisions relating to terrorism, such as an expansion of the offenses that constitute terrorist attacks, criminal penalties for those acts and additional predicates for criminal wiretaps.
Unfortunately, the reauthorization did not address major concerns with the PATRIOT Act, which still authorizes the government to obtain orders for the disclosure of records without showing a connection to a suspected terrorist, to issue National Security Letters without prior judicial approval, and to conduct "sneak and peek" searches of citizens' homes and businesses in
ordinary criminal cases.
USA PATRIOT Improvement and Reauthorization Act of 2005
http://www.cdt.org/legislation/109/4#H.R.3199
USA PATRIOT Act Amendments Package (S. 2271)
http://www.cdt.org/legislation/109/4#S.2271
More information on the PATRIOT Act:
http://www.cdt.org/security/010911response.php
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CDT Urges Senators to Support Specter Bill To Improve Checks
and Balances
Senate Judiciary Committee Chairman Arlen Specter, who last summer led
the Judiciary Committee's unanimous passage of the Senate version of
PATRIOT Act reauthorization legislation, voted for the PATRIOT
Reauthorization Act, but vowed to continue fighting for reforms. To
that end, Senator Specter has co-sponsored a bill (S. 2369) that
contains the civil liberties protections that were dropped from the
bill signed by the President on March 9.
The Specter bill, which has the support of other Republican and
Democratic Senators, would make the following improvements to the
PATRIOT Act:
Section 215--FISA Business Records Orders:
Under Section 215 of the PATRIOT Act, the government can obtain secret
court orders for disclosure of personal records held by any third party
upon a mere showing that the records are relevant to an investigation
to prevent against terrorism. The government is not required to show
some connection, however tangential, between the records it seeks -
including personal records like medical and insurance records - and a
suspected terrorist. A connection to terrorism merely creates a
presumption that the records sought are relevant.
Under the Specter bill, the FBI would retain the ability to obtain
personal records of any kind, but it would have to make a factual
showing of individualized suspicion that the records are connected to a
terrorist suspect, the activities of a terrorist suspect or someone
known to or in contact with a terrorist suspect. CDT believes this is a
balanced approach: While the government should have the authority to
obtain the records it needs to fight terrorism, it should not be
allowed to sweep up information about innocent people. Specter's bill
would strengthen the standard to ensure that the government will not
engage in fishing expeditions.
In addition, the Specter bill would somewhat improve the ability of
recipients of Section 215 orders to challenge the orders and the gag
orders that accompany them. However, CDT has never found much comfort
in the ability of recipients to challenge a 215 order, since the orders
are usually directed at businesses that are unlikely to spend the time
and money to challenge an order on behalf of an individual customer -
especially since the business is immune from liability for compliance
and the individuals whose privacy is really at stake are never told
that their records have been disclosed to the government.
Sneak and Peek Searches:
The PATRIOT Reauthorization Act failed to include the Senate's
limitations on so-called "sneak and peek" searches -- 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 Specter bill would codify the seven-day limit, subject to
extensions when needed.
National Security Letters (NSLs):
The PATRIOT Reauthorization Act allows the FBI to continue issuing NSLs
without judicial approval to obtain transactional records without any
showing of any connection to a suspected terrorist, and it maintains
the "relevance" standard that allows the government to conduct
unchecked fishing expeditions that can sweep up the records of innocent
Americans. The PATRIOT Act reauthorization law signed by the President
actually expands the FBI's NSL power by giving the government the power
to compel compliance with a court order and by creating a new crime,
punishable by up to five years in prison, of willful disclosure of an
NSL with intent to obstruct an investigation.
The Specter bill would improve the right to challenge the gag order
that accompanies NSLs by eliminating the provision that makes the
government assertion of danger to national security conclusive. As
stated above, however, the right of the recipient to challenge the NSL
and the gag order that accompanies the NSL is usually not a meaningful
protection because the recipients (usually third-party entities) are
not likely to spend the time or money to challenge either the
underlying order or the gag order.
The Specter bill would also add a much-needed sunset to the NSL
provisions, making them expire on December 31, 2009.
Specter Bill (S. 2369): http://www.cdt.org/legislation/109/4#S.2369
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