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
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.
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
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:
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/