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Adding privacy to Patriot

By Steve Lilienthal
web posted August 11, 2003

Immediately after 9/11, many conservatives were understandably worried first and foremost about national security. This concern was shared by virtually all Americans whatever their political beliefs. In response, the Congress rushed through the legislation that came to be known as the USA-Patriot Act.

Now, after nearly two years of having had the USA-Patriot Act on the books, thoughtful conservatives are taking a needed second look at what Congress had passed so hastily that legislators were not provided with enough time to read the legislation so they could understand what they were voting on.

Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR) have introduced S. 1552 -- the Protecting the Rights of Individuals Act (PRI Act) that offers a prudent, mid-course correction of the USA-Patriot Act.

It is highly debatable whether the United States has really been made more secure by passage of the USA-Patriot Act. The recent report by the joint House and Senate intelligence committees made clear that the "Intelligence Community failed to capitalize on both the individual and collective significance of available information that appears relevant to the events of September 11...the Intelligence Community, for a variety of reasons, did not bring together and fully appreciate a range of information that could have greatly enhanced its chances of uncovering and preventing Usama Bin Ladin's plan to attack these United States on September 11, 2001."

The draconian powers granted the Federal Government's law enforcers do not guarantee better coordination between law enforcement and intelligence agencies, one of the prime reasons why the 9/11 plot was not foiled.

What is very clear to privacy advocates is that key provisions of the USA-Patriot Act were too sweeping. overturning time-honored constitutional liberties. Many of the USA-Patriot Act's provisions were so vaguely worded that they lowered the standards necessary to investigate alleged wrongdoing and the definitions of wrongdoing could easily be applied not to international terrorism but whatever the Federal authorities defined as domestic terrorism. Nor was there accountability in terms of requiring law enforcement to report to Congress and the American people how they were employing their newly granted powers.

One important measure that the PRI Act seeks to reform is the so-called "sneak and peek" provision" that turned the Fourth Amendment on its head. While many provisions of the USA-Patriot Act have a sunset clause, this is one that does not come up for review by Congress in 2005.

The Fourth Amendment clearly states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Under the USA-Patriot Act's Section 213 the police no longer had to provide prior warning before searches of personal property were executed. More troubling, the provision applied to any and all warrants and court
orders, even those in cases that did not involve terrorism.

The PRI Act does not end "sneak and peek" searches. However, it makes clear that delayed notification is permitted only in certain circumstances: 1.) when an act dangerous to human life constitutes a federal crime of terrorism; 2.) if simultaneous notification would endanger the life or physical safety of an individual, 3.) or if it could result in flight from the prosecution, or result in the destruction of or tampering with the evidence sought under the warrant.

Furthermore, in cases where notification of a search is delayed, the PRI Act requires a finite date for informing the person whose property was examined. As written now, the notification is vaguely defined as "a reasonable period of its execution." With the PRI Act, that period is defined as seven calendar days after the search which can even be extended if the court has been provided reason to believe by law enforcement that earlier notification could endanger the life or safety of a victim.

Conservative activists should welcome the PRI Act's modification of the definition of domestic terrorism. The USA-Patriot Act's definition was so broadly written that it covered any act considered to be dangerous to human life that violated federal or state criminal law, even misdemeanors! Could bumping someone on the head with a picket sign be interpreted as engaging in domestic terrorism? Given overzealous law enforcement and the way the USA-Patriot Act is currently written, the answer is yes!

Conservatives had good cause to worry that even membership in organizations such as Operation Rescue or property rights and gun owner groups could be defined by an unfriendly administration as belonging to groups engaged in domestic terrorism.

The PRI Act more accurately redefines domestic terrorism as only those acts considered dangerous to human life that are defined only by Federal law as a crime of terrorism. [Nothing would prevent states from enforcing their own laws regarding terrorism and many states passed mini-USA-Patriot Acts.]

Section 215 of the USA-Patriot Act also proved troublesome to privacy advocates based on its extremely low standard permitting the FBI to search third party records under the Foreign Intelligence Surveillance Act. Right now, they do not need to demonstrate any connection to a foreign power, the usual connection required by FISA. Library borrowing, store and credit card purchases, and medical records are all fair game for searches.

The PRI Act protects citizens from indiscriminate searches. The FBI can still engage in searches provided that it tells the court specifically why it believes that the records being sought either involve a foreign power or someone who is a representative of a foreign power.

The PRI Act also places a moratorium on data mining by any Federal agency unless it has received specific Congressional authorization to do so. This is important because data mining could be used by law enforcement to try to identify potential suspects based on hypothetical modeling of possible crimes.

Conservatives also worried that electronic surveillance and electronic searches under FISA could be used for domestic purposes. Before the USA-Patriot Act was signed into law, when Federal law enforcement submitted a court order for a search under FISA it had to be clearly specified that the purpose was to obtain foreign intelligence. The USA-Patriot Act weakened the standard to a significant purpose. Given that FISA standards for searches and surveillance were already weaker than what is required in criminal investigations, FISA orders could be used for domestic law enforcement cases. Under the PRI Act, the primary purpose of granting a FISA court order for surveillance and searches must be to obtain foreign intelligence information. This does not prevent information that is obtained under such a court order to be used in a criminal case too should it be appropriate.

America's founding fathers expressed concern about vesting too much power with a centralized government that did not have adequate checks and balances. Concepts such as appropriately stringent standards for searches by law enforcement and intelligence authorities and judicial review have long been important to our legal system. They are necessary checks to ensure our nation's law enforcers do not engage in vendettas based on whim, but there are specific processes that must be respected. As conservatives have made clear, the worry is not that the Bush Administration will take the powers granted under the USA-Patriot Act to challenge domestic political activists not to their liking. But what about an administration that has a disregard for the Constitution and much less scruples?

Conservatives who care about preserving our constitutional liberties and protecting privacy rights will find the Protecting the Rights of Individuals Act that is to their liking. It is a necessary and prudent rewrite of the USA-Patriot Act that respects the need of Federal law enforcement to have enhanced powers to fight the War on Terrorism while providing the necessary safeguards to protect the constitutional liberties and privacy of American citizens. An oft-expressed thought holds that the terrorists would achieve their greatest victory by undermining the freedom that has been so vital in the success of the American Experiment. The PRI Act ensures a proper balance can be struck between our country's obvious national security concerns and the protection of our valued constitutional liberties.

Steve Lilienthal is a policy analyst with the Free Congress Foundation.

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