Obama Administration Support for PATRIOT ACT Renewal Worries Civil Libertarians

BlogHer Original Post

Last week, the US Senate Judiciary Committee approved a bill reauthorizing controversial provisions of the USA PATRIOT Act that, according to civil libertarians, unnecessarily compromise American citizens' privacy rights. What's worse, the legislation reportedly has the support of the Obama administration, despite the fact that its most troubling provisions were opposed by then-Sen. Obama in 2005.

The PATRIOT ACT (full name: Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001)  was first enacted in the weeks following the Sept. 11, 2001 terrorist attacks on New York and Washington. The law gives government unprecedented powers to intercept and monitor American citizens' private communications, often without being required to obtain court approval or disclose the activity to the persons being monitored. Civil liberties advocates sought to check some of the most intrusive provisions by inserting sunset clauses. Three of those provisions were set to expire this year -- including the power given to the FBI to obtain our financial records simply by issuing a National Security Letter (NSL) stating that the records are relevant to an investigation. 

Leslie Harris, who heads the Center for Democracy and Technology, recalls that in 2005, Sen. Obama supported higher standards for issuing NSLs, but Pres. Obama's administration urged the Senate to leave things be:

As a Senator, Obama favored raising the standard for issuing an NSL to require a link between the records sought and a terrorist, spy, or other agent of a foreign power. Yet the Obama Administration opposed an even weaker standard – one that would require that the government draft an internal statement of "specific and articulable facts" showing that the information sought was somehow relevant to an investigation.  Instead, according to the deliberations of the Judiciary Committee, the Administration favored a mere relevance standard.

Read more at: http://www.huffingtonpost.com/leslie-harris/obama-versus-obama-on-the_b_315638.html

Senate Holds Hearing On FBI Misuse Of Patriot Act

Another expiring provision, known as Section 215, allows the FBI to obtain a secret order from the Foreign Intelligence Surveillance (FISA) Court demanding records that are deemed relevant to an investigation. The FBI could get court authorization to demand certain private records before, but Section 215 expanded that power while requiring less in the way of justification. A few years ago, the Electronic Frontier Foundation argued:

Section 215 violates your Constitutional right to privacy under the Fourth Amendment, by allowing the FBI to search through your most personal information -- including financial records, medical records, student records, even your library records -- without ever having to prove that they have probable cause to suspect you of a crime, or even that your records are relevant to an investigation.

The third provision has to do with something called "pen registers" and "trap and trace devices. (TATD)" Pen registers record electronic pulses, and are used to collect numbers from outgoing phone calls. TATDs capture "non-content" information from telecommunications systems, such as IP addresses and routing information. Law enforcement officials can get orders for these devices without a warrant under current law.

Marcy Wheeler reports that the definition of "non-content" is becoming slippery, since it includes, for example, the subject lines of emails.

Now here is the crazy part of all of this. Wheeler cites reporting by the New York Times that the Obama administration worked with administration critic Jeff Sessions (R-AL) to insert provisions into the Senate bill that limited judges' discretion in evaluating the FBI's justification for installing pen registers and TATD devices. Another Sessions amendment made it harder to protect library records from investigation. Wheeler sounds the alarm:

They absolutely gutted the minimization procedures tied to pen registers! Pen registers are almost certainly the means by which the government is conducting the data mining of American people (using the meta-data from their calls and emails to decide whether to tap them fully). And Jeff Sesssions–I mean Barack Obama–simply gutted any requirement that the government get rid of all this meta-data when they’re done with it. They gutted any prohibitions against sharing this information widely. In fact, they’ve specified that judges should only require minimization procedures in extraordinary circumstances. Otherwise, there is very little limiting what they can do with your data and mine once they’ve collected it.

Patrick Leahy, (D-VT) issued a statement calling attention to provisions in the bill that protect civil liberties:

I remain mindful of our responsibility to ensure both security and liberty as we proceed.  All of us know that the threats to Americans’ safety are real and continuing.  Our bill will provide the tools that are being used to protect us, while increasing the protections of our vital constitutional rights, as well.  The bill we consider today will serve to extend the authorization of the three expiring Patriot Act provisions requested by the administration.   We also provide for increased Government accountability requiring audits and reviews of how these vast authorities are being used.  I will include in the record an outline of the accountability measures we include in the Sunset Extension Act.

But fellow Judiciary Committee member Russ Feingold (D-WI) is disappointed:

“The PATRIOT Act reauthorization bill passed by the Judiciary Committee today falls far short of adequately protecting the rights of innocent Americans.  Among the most significant problems is the failure to include an improved standard for Section 215 orders, even though a Republican controlled Judiciary Committee unanimously supported including the same standard in 2005.  But what was most upsetting was the apparent willingness of too many members to defer completely to behind the scenes complaints from the FBI and the Justice Department, even though the administration has yet to take a public position on any of the improvements that I and other senators have proposed.  We should, of course, carefully consider their perspective, but it is our job to write the law and to exercise independent judgment.  After all, it is not the Prosecutors’ Committee; it is the Judiciary Committee.  And while I am left scratching my head trying to understand how a committee controlled by a wide Democratic margin could support the bill it approved today, I will continue to work with my colleagues to try to make improvements to this bill.”

The next step for the reauthorization bill is a vote before the full Senate. You can track the bill's progress at OpenCongress.org.

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