Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Tue, 28 Oct 2003 13:51:04 -0800 (PST)
From: Joseph Lorenzo Hall <jhall@xxxxxxxxxxxxxxxxx>
Subject: CDT Analyzes DOJ PATRIOT Act Defense website
To: Declan McCullagh <declan@xxxxxxxx>, Dave Farber <dave@xxxxxxxxxx>
These guys rule! -Joe
---
CDT Analyzes DOJ PATRIOT Act Defense
In an effort to correct some of the hyperbole associated with the
PATRIOT Act, CDT has issued a new analysis of the Justice Department's
website defending the Act. CDT's analysis notes that in large part the
DOJ has failed to engage on substantive criticisms of the Act. Instead
DOJ touts provisions no one is objecting to, while describing
controversial provisions in misleading terms. October 27, 2003
Setting the Record Straight:
An Analysis of the Justice Department's PATRIOT Act Website
October 27, 2003
The Department of Justice has launched a website,
http://www.lifeandliberty.gov, to defend the PATRIOT Act. As more and
more people are raising concerns about the broad powers granted to the
Justice Department powers it does not need and is not using to fight
terrorism the Department is spending time and money on a public
relations campaign, including a website and a tour of the country by
the Attorney General to talk to law enforcement officers. But just as
Attorney General Ashcroft has done in his speeches around the country,
the website fails to engage on the substantive criticisms of the
PATRIOT Act, instead touting provisions that no one objected to at the
time the legislation was enacted and that no one has been objecting to
since. Where the website does address controversial aspects of the
law, it provides misleading, incomplete and, in some cases, incorrect
information. Following is CDT's analysis of the claims made on that
website.
* DOJ CLAIM: Congress enacted the Patriot Act by overwhelming,
bipartisan margins.
Congress voted overwhelmingly to pass the PATRIOT Act in October 2001.
But Congress acted under intense time pressure and without serious
debate and deliberation. The PATRIOT Act was signed into law a mere 5
weeks after the Administration's draft was first circulated lightning
speed for legislation. And on the House side, the version approved by
the Judiciary Committee with some changes prompted by civil liberties
concerns was replaced by a different version in the middle of the
night, and a vote was taken just hours later leaving members and their
staff with literally not enough time to read what was in the lengthy
bill. Any legislation adopted under these circumstances is likely to
contain provisions that deserve to be revisited and corrected if
appropriate.
* DOJ CLAIM: The PATRIOT Act merely extended to terrorism cases
authorities already provided in organized crime and drug trafficking
cases, yet unavailable in terrorism cases. DOJ quotes Senator Biden as
stating that the FBI could get a wiretap to investigate the mafia, but
they could not get one to investigate terrorists.
That simply isn't true. The Justice Department had the ability to use
wiretaps, including roving taps, in criminal investigations of
terrorism, just as in other criminal investigations, long before the
PATRIOT Act. Then what are they talking about? A special wiretap
technique, the roving tap, was available in criminal investigations of
terrorists and drug dealers but was not available under the
government's separate authority to investigate terrorism as a foreign
counterintelligence matter under the Foreign Intelligence Surveillance
Act (FISA). No civil liberties groups objected to adding roving tap
authority to FISA. We did object to the fact that an important
procedural safeguard applicable to roving taps in criminal cases was
not applied to roving taps in intelligence cases. (See further
discussion below.)
* DOJ CLAIM: The PATRIOT Act allows law enforcement to use
surveillance against more crimes of terror.
As with many of the provisions touted on the DOJ website, this was not
a controversial or contested provision of the PATRIOT Act. Section
201 of the PATRIOT Act added a list of seven new predicate offenses
that could trigger a criminal wiretap order with no objections from
the civil liberties community. Furthermore, even prior to the PATRIOT
Act, the FBI could have gotten an order under FISA to wiretap any
suspected member of an international terrorist group.
* DOJ CLAIM: The PATRIOT Act allows federal agents to follow
sophisticated terrorists trained to evade detection with roving
wiretap authority.
As noted above, the FBI already had roving tap authority in criminal
investigations of terrorism. The FBI did not have roving tap authority
in intelligence investigations under FISA, but civil libertarians did
not object to the PATRIOT Act's adding roving tap authority to FISA.
The only dispute was about the standard that the FBI should be
required to meet to use this authority and in the end, the PATRIOT Act
made it easier for the FBI to use roving taps under FISA than under
the criminal procedures. First, under the PATRIOT Act the FBI does not
have to ascertain that the target of the roving FISA wiretap is using
the phone being tapped an omission that could lead to innocent users
having their conversations monitored. Second, the combined effect of
the PATRIOT Act and the intelligence authorization bill that passed a
few months later is that the FBI can now get a warrant to wiretap a
phone or computer without specifying either the suspect under
surveillance or the phones or computers to be tapped.
* DOJ CLAIM: The PATRIOT Act allows law enforcement to conduct
investigations without tipping off terrorists by delaying notification
that their homes or offices have been searched.
The FBI already had authority under FISA to conduct secret searches in
international terrorism investigations. The PATRIOT Act permits the
FBI to conduct so-called sneak and peek searches where the FBI can
search someone's home or office without notifying them until weeks or
even months later in criminal cases, including cases having nothing to
do with terrorism. While courts had previously held that this delay in
notification is permissible in limited circumstances, the PATRIOT Act
provided statutory authority with entirely inadequate standards. The
PATRIOT Act allows these extraordinary searches to be used in all
criminal cases, not just terrorism cases, and the standard is so loose
that it could arguably be used in almost every criminal case. The
presumption has long been that law enforcement officers have to knock
and announce themselves when they execute a search warrant, and an
exception to that rule should be made only in limited circumstances
with strict guidelines which the PATRIOT Act does not contain.
* DOJ CLAIM: The PATRIOT Act allows federal agents to ask a court for
an order to obtain business records in national security cases.
The FISA court order for business records has no meaningful standard.
Section 215 of the PATRIOT Act permits the FBI to obtain a wide range
of business records including library, bookstore, medical, travel and
other records in any intelligence investigation, under a legal
standard so low that it essentially results in a judicial rubber
stamp. The FBI doesn't even have to name the person whose records it
is seeking, but rather can sweep up entire databases indiscriminately.
Given the vast array of records available to the FBI under this
section, it should be subject to tougher standards. The FBI should
have to name an individual whose records it is seeking and offer some
factual basis for believing that the person is a spy or linked to
terrorism in some way.
* DOJ CLAIM: The PATRIOT Act facilitated information sharing and
cooperation among government agencies so that they can better connect
the dots.'
The outcry over the PATRIOT Act has little to do with the increased
ability of federal agencies to share relevant intelligence or increase
their coordination. In fact, there was never a legal bar to
intelligence agencies sharing information with prosecutors.
Intelligence and law enforcement officials weren't effectively sharing
information and using their existing powers not because of legal
barriers, but because of their overly strict interpretation of
then-existing law, cultural problems, and turf wars among agencies.
* DOJ CLAIM: The PATRIOT Act allows law enforcement officials to
obtain a search warrant anywhere a terrorist-related activity
occurred.
It is certainly harder for an individual to challenge a warrant if the
issuing court is thousands of miles away, but the proposal to
authorize multi-jurisdiction search warrants was not a significant
concern at the time the PATRIOT Act was passed, and has not been a
major focus of the concerns raised about the PATRIOT Act in recent
months.
* DOJ CLAIM: The PATRIOT Act allows victims of computer hacking to
request law enforcement assistance in monitoring the trespassers' on
their computers and places electronic trespassers on the same footing
as physical trespassers.
Section 217 of the PATRIOT Act allows Internet Service Providers,
universities and network administrators to authorize government
surveillance of computer trespassers without a judicial order, without
notice to the person being monitored, without reporting to a judge
after the fact, without a suppression remedy, without congressional
reporting, and without a liability remedy for the person being
monitored. That is a far cry from burglary victims being able to
invite [police] officers into their homes to catch burglars, as DOJ
argues. Under those circumstances, the burglar is well aware that the
victim thinks the burglar is trespassing and that the police are
investigating and has the full panoply of protections available in the
criminal system. Anyone designated a computer trespasser has no such
rights or knowledge.
* DOJ CLAIM: The PATRIOT Act increased the penalties for those who
commit terrorist crimes.
Yet again, the Justice Department is defending a section of the
PATRIOT Act that has not been challenged. The civil liberties
community has not objected to the increased criminal penalties in the
PATRIOT Act.
The following claims appear at
http://www.lifeandliberty.gov/subs/u_myths.htm.
* DOJ CLAIM: Peaceful political organizations engaging in political
advocacy cannot be considered terrorists under the PATRIOT Act's new
definition of domestic terrorism.
Under the PATRIOT Act, a violation of some criminal law involving risk
of serious injury must occur before a person can be labeled a domestic
terrorist. But it is easy to see how if an anti-abortion activist
blocks traffic as part of a protest, or swings a sign and hits someone
on the head, he could be labeled a terrorist. Such activities should
be illegal, but they should not be subject to the threat of being
labeled terrorism, triggering application of draconian law enforcement
powers, such as the power to seize property including cars, boats and
homes.
* DOJ CLAIM: The PATRIOT Act specifically protects Americans' First
Amendment rights.
Section 215 provides that an investigation in which business records
are sought shall not be conducted of a United States person [U.S.
citizen or green card holder] solely upon the basis of activities
protected by the first amendment. That caveat has little practical
effect because few if any investigations would be conducted solely
based on First Amendment activities. Indeed, the caveat makes it clear
that information about First Amendment activities can be collected.
* DOJ CLAIM: In defending sneak and peek searches, DOJ states that the
Supreme Court has already concluded that delayed notification is
constitutionally permissible.
Contrary to the Justice Department's assertion, the Supreme Court has
never ruled that delayed notification is permissible for execution of
a warrant to physically search someone's home or office. The case
cited by the Justice Department, Dalia v. United States, 441 U.S. 238
(1979), held that a covert entry was permitted to install a bug
because there was no other way to effectively execute the order
authorizing the bug. In the context of wiretaps and bugs, it would
nonsensical to notify someone that you are planning to monitor their
communications. That rationale simply does not apply in the context of
physical searches. The Supreme Court has never ruled on the
constitutionality of sneak and peek searches.
For more information:
Jim Dempsey, (202) 637-9800 ext. 112, jdempsey@xxxxxxx
Lara Flint, (202) 637-9800 ext. 113, lflint@xxxxxxx
The Center For Democracy & Technology
1634 Eye Street NW, Suite 1100
Washington, DC 20006
(v) 202.637.9800
(f) 202.637.0968
Technical concerns about this site: webmaster@xxxxxxx
Concerns or opinions about issues: feedback@xxxxxxx
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