A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology
(1) PATRIOT Act Deal Falls Short on Civil Liberties Checks and Balances
(2) Conference Report Fails to Include Meaningful Civil Liberties Protections
(3) Make Your Voice Heard: Oppose the Patriot Act Reauthorization Bill
Congressional negotiators seeking to reconcile conflicting approaches to renewal of the PATRIOT Act's surveillance provisions this week reached a deal (known as a "conference report") that failed to contain the modest but meaningful civil liberties protections that had enjoyed bipartisan support in the House and the Senate. In the Senate, a group of 3 Republicans and 3 Democrats vowed to block passage of the flawed package.
Earlier this year, the Senate unanimously approved a PATRIOT Act reauthorization bill that would have added some important, albeit modest, checks and balances to the Act's more intrusive provisions. The House version failed to address civil liberties concerns with adequate protections.
Over the last several weeks, negotiations have focused on whether to sunset three provisions - regarding government access to business records, roving wiretaps and the surveillance of "lone wolf" suspects who have no apparent connection to a foreign terrorist organization. The House had been insisting on a 10-year sunset, the Senate 4 years. The latest deal call for 4 years.
Entirely left behind in the debate was the question of what standards should govern use of the Act's powers. The business records provision, for example, allows the government to obtain a secret court order for business records without focusing on a specific individual and without having any reason to believe that the records sought are connected to a suspected terrorist.
Congress is missing an opportunity to preserve the PATRIOT Act's investigative tools while protecting innocent Americans from invasive surveillance.
The Conference Report keeps intact most of the troublesome PATRIOT Act provisions that threaten civil liberties, including the FBI's far-reaching powers to obtain personal, medical, library and business records without showing a connection to a suspected terrorist, issue National Security Letters to obtain transactional records without prior judicial approval, and conduct "sneak and peek" searches of citizens' homes and businesses.
Business Records Orders The Conference Report allows the government to obtain sensitive records or other tangible things upon a factual showing of "relevance" to an authorized investigation to protect against terrorism. The government does not have to show a connection, however tangential, between the records it seeks and a suspected terrorist. Indeed, the target of the records request does not have to be suspected of having any connection to terrorism. The Senate bill would have required the government to show facts that the records were connected to a suspected terrorist or someone known to or in contact with a suspected terrorist.
National Security Letters The Report fails to curb National Security Letter powers, which can be issued without judicial approval to obtain transaction records without any showing of a connection to a suspected terrorist. If anything, the conference report expands these powers by providing a judicial enforcement provision. The right of the recipient to challenge the NSL does not provide meaningful protection for the individuals whose records are the subject of the request. The recipients of the NSLs will usually be businesses that are immune from liability for compliance with the orders and are unlikely to expend the time and money to challenge the order on behalf of an individual.
Sneak and Peek Searches The Report allows the government to delay notifying the target of a search for up to 30 days. The concept of "sneak and peek" searches was already constitutionally suspect before the Patriot Act was enacted, and the Report's 30-day delay provision is a clear expansion of the seven-day delay that pre-Patriot federal courts had deemed to be reasonable.
The Senate and House will take up the Conference Report next week. Tell your Senators and Representatives to oppose the Patriot Act Reauthorization Bill and tell your Senators to VOTE AGAINST COLTURE. Senator Feingold has promised to use all the tools at his disposal-including a filibuster-to block the passage of this bill in the Senate, and he has bi-partisan support.
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. 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, at http://www.cdt.org/action/patriot/