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Washington-The USA Patriot Act has become nearly synonymous with such things as “sneak and peak” search warrants, national security letters and libraries’ opposition to government demands for their records. But what about the section on suing the government for illegally wiretapping or disclosing private voice mail or e-mail communications? Considered a pro-privacy provision by many civil liberties groups four years ago, Section 223 is, after additional analysis, actually a “legislative Trojan horse,” that makes it more difficult to sue the government, said Kevin Bankston, a staff attorney with the Electronic Frontier Foundation. And then there is Section 216, he added, which expanded the government’s authority to conduct surveillance in criminal investigations using pen registers or trap and trace devices, or “pen-traps.” Pen-traps, which collect information on the numbers dialed on a telephone, but not the content of the phone call, now can be used to monitor Internet communications. The U.S. Department of Justice, noted Bankston, has said that new definitions in the act allow pen-traps to collect e-mail and Internet service provider addresses. But, he added, the department refuses to say whether URLs can be collected, and URLs clearly reveal content by identifying the Web pages being read. The Justice Department doesn’t feel pressured to provide that information, suggested Bankston, because Section 216 is not scheduled to expire at the end of the year, as is Section 215 authority to demand records from libraries and other businesses. “Section 216 is a general grant of new surveillance powers to include the Internet with more practical impact on privacy than national security letters or Section 215 ever could,” he insisted. “The numbers I hear informally on pen-traps reach up to 70,000 per year. Most of those are on phones, but eventually the Internet will provide our phone service. Section 216 is an incredibly potent and easy to use power that applies in any criminal case and yet no one is talking about it.” Sections 216 and 223 are “emblematic” of the inadequate review given by Congress this year, said Bankston, as it prepares to either “sunset”-that is, to extend for a limited time period-or make permanent key parts of the Patriot Act enacted in response to the 2001 terrorist attacks. Shortly after Labor Day, Congress is expected to take up legislation dealing with “sunsets” on 16 provisions in the act set to expire on Dec. 31. In legislation as sweeping as the Patriot Act, there is usually a “narrowing of issues” through public debate, said Lisa Graves, senior counsel for legislative strategy at the American Civil Liberties Union (ACLU). Sections 215 and 505, which deal with national security letters, have become a central focus because, she said, they are “at the heart of the intrusion on privacy” created by the act. National security letters are administrative subpoenas that can be used in international counterterrorism or foreign counterintelligence investigations without prior approval by a grand jury, court or other judicial entity. Losing leverage?
Patriot debate The following are some of the more controversial provisions of the USA Patriot Act. Congress is debating whether to renew parts set to expire and to change others. Section 206�allows the FBI to conduct “John Doe” roving wiretaps without specifying the telephone line or computer. Section 213�deals with delayed notification in so-called sneak-and-peak searches of homes and offices. Section 215�broadens the authority to demand records from libraries and businesses, and requires the recipient to maintain secrecy. Section 505�allows the FBI independently to use national security letters to obtain private records if relevant to a terrorist or espionage investigation.

The Patriot Act significantly amended more than 15 federal laws, with the result of increasing the surveillance and investigative powers of law enforcement agencies. Recognizing the haste and lack of debate that characterized the movement of the legislation at the time, Congress did insert a sunset provision on a number of the act’s sections. The Bush administration has pushed vigorously for all of the sunsetted provisions to be made permanent, not just because they contain necessary and critical tools, but also because the department has “a strong track record of zero civil liberties violations,” according to a department spokeswoman. “Sunsets are unnecessary,” she said. Nearly two weeks ago, the U.S. House of Representatives passed H.R. 3199, legislation that would make permanent 14 of the 16 expiring sections. It adopted new sunsets-10 years each-on sections 206 and 215. Section 206, known as the “John Doe roving wiretap” provision, expanded the Foreign Intelligence Surveillance Act (FISA) to allow the FBI to intercept communications made to or by an intelligence target without specifying the particular telephone line, computer or other facility to be monitored. The ACLU and other civil liberties groups have criticized the provision because, unlike criminal roving wiretaps, there is no requirement that the government check to make sure it is intercepting only the target’s communications. Section 206 had been used 49 times as of March 30, according to the Justice Department. Section 215, now known as the libraries/ business records section, expanded the ability of the FBI under FISA to access the business records of hotels and motels, car rental agencies and storage rental facilities to any tangible item, regardless of who is holding it, if it is relevant to a foreign intelligence or terrorist investigation. It also eliminated any probable cause showing and required the recipient of the search warrant to maintain its secrecy. The House did include an amendment giving the recipients of these orders to produce records the right to challenge them in the Foreign Intelligence Surveillance Court. Section 215 has been vigorously opposed by libraries in particular as well as civil liberties groups. Ironically, just a month ago, the House passed legislation cutting off funding for enforcement of this section against libraries and bookstores, but no funding cutoff is contained in the new USA Patriot Act legislation. “The suggestion that reforming 215 would make us less safe is just false,” said the ACLU’s Graves. “The only way to ensure people are not targeted based on protected First Amendment activity is to require law enforcement to provide articulable and specific facts supporting the order. If they don’t have to show facts to anyone, they can do a fishing expedition through a whole range of personal records.” As of March 30, the Justice Department reports, the Foreign Intelligence Surveillance Court has approved 35 requests for business records and other tangible items under Section 215. Peter Swire of Ohio State University Moritz College of Law testified twice during what he called “very thorough” House hearings on oversight of the Patriot Act. An expert on electronic surveillance in the Internet age, he said that the hearings revealed many problems with the act and many reasons to change it. “A big disappointment on the House side is that they are making so much of the law permanent,” he said, explaining that the existence of sunsets was crucial to getting the Department of Justice, which at one point last year was threatened with contempt of Congress, to ultimately cooperate in providing information on how it was using the act. “Congress loses leverage if it omits the sunset,” he said. Senate action In the Senate, all eyes are on S. 1088, which has been reported out of the Senate Judiciary Committee with a rare unanimous vote. That bill makes permanent all but three sections of the Patriot Act. It sunsets after four years, instead of the House’s 10 years, the controversial sections on roving wiretaps and libraries/ business records searches. And it adds some new requirements on law enforcement powers elsewhere in the act. For example, under Section 215 on libraries/business records orders, the bill would require the FBI to provide a statement of facts that could be reviewed by the Foreign Intelligence Surveillance Court to determine why the records sought are relevant and a right to challenge the search, similar to a challenge to a grand jury subpoena. The bill also would require that the unknown target of a roving wiretap be described with “particularity,” and that an “after-the-fact” report be filed with the court on why agents believed the target was using the phones they were tapping. A limit of seven days would be imposed on delayed notice of so-called sneak-and-peek searches of homes and offices under Section 213, with renewal periods of up to 90 days. And the bill provides recipients of national security letters with a right to consult an attorney and a right to challenge this type of subpoena. Neither the House nor the Senate bill addresses the standard for issuing national security bills-a major flaw, said James Dempsey, executive director of the Center for Democracy & Technology. “Section 215 has been rarely used and yet there are probably tens of thousands of national security letters issued since the Patriot Act was enacted,” he said. And while national security letters and libraries/business record searches can be challenged under the Senate bill, he predicted, that was unlikely to happen. “Except in the case of libraries or bookstores, there’s no incentive for a business to challenge these orders,” he said, adding, “They have immunity for complying. The orders are secret so customers never know.” Dempsey, Graves and others believe the Senate bill is better than the House bill, but stop short of endorsing it. The Justice Department said it is still examining the Senate bill. But Paul Rosenzweig, senior legal research fellow at the Heritage Foundation, said that while there are differences between the bills “any reasonable person could live with either or all of them.” Although he prefers the House bill, Rosenzweig said, “The bottom line for me is even the worst provisions in the Senate bill are minor tweaks. The process has demonstrated that all of the hysteria by the civil liberties groups in the last four years proved not to be right.” Bankston of the Electronic Frontier Foundation noted that two courts have found parts of the Patriot Act unconstitutional. He said he also finds unconvincing the Justice Department’s claim of an unblemished civil liberties track record under the act. “The powers we’re most concerned about operate in secrecy-national security letters, pen-traps-and the only way they ever get challenged is if someone served with one chooses to challenge it,” he said. “As one court has said, it’s easy for someone to believe they had no option to do that. If the power is abused we would likely not know about it.” The Patriot Act has always been as much a symbol as a reality on both the administration side and its critics’ side, said Dempsey. “I don’t think it’s quite as crucial as the administration claims or quite as bad as even I may have suggested in the fall of 2001,” he said. For the administration to argue that the sunsets should be eliminated because there have been no abuses, he added, misses the point that the sunsets themselves have had a restraining effect because they indicate that Congress will be watching. “Now that we’re lifting those sunsets, we need to replace them with checks and balances,” he said.

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