Friday, September 18, 2009

Senator Feingold Counters the Patriot Act with the "JUSTICE Act"

As I discussed on Wednesday, the Obama administration and the Justice Department have signaled they would like to see a variety of the Patriot Act's provisions renewed...while leaving the door open to privacy improvements from the Congress being added.

Specifically, Congress was asked to reauthorize the use of roving wiretaps, permitting authorities to track multiple communications devices owned by an individual since people can switch devices frequently and quickly. The administration also asked that one particularly controversial intelligence gathering method be reauthorized - accessing personal records.

As I also pointed out, while at first glance, the Administration's embrace of these Patriot Act provisions is bad news, and represents a slight shift from candidate Obama's position, all is not necessarily lost. The fact that the President (and the DOJ) hinted at a willingness to accept additional privacy safeguards, combined with the fact that Senator's Durbin and Feingold (a privacy champion) had taken the lead in advocating for those changes, has given me some hope.

Now - thanks to Senator Russ Feingold's Justice Act - we'll see if the Administration and Department of Justices actions match their words (and just how pro-privacy the Democratic Congress is).

Feingold has been joined by co-sponsors Durbin, Tester, Udall, Bingaman, Sanders, Akaka, and Ron Wyden. The bill would fix problems with three provisions of the Patriot Act that expire at the end of this year...each of which threatens the rights and liberties of American citizens.

According to Feingold's office, "The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act" would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect Americans’ constitutional rights, while preserving the powers of our government to fight terrorism.

The JUSTICE Act reforms include more effective checks on government searches of Americans’ personal records, the “sneak and peek” search provision of the PATRIOT Act, “John Doe” roving wiretaps and other overly broad authorities. The bill will also reform the FISA Amendments Act, passed last year, by repealing the retroactive immunity provision, preventing “bulk collection” of the contents of Americans’ international communications, and prohibiting “reverse targeting” of innocent Americans.

And the bill enables better oversight of the use of National Security Letters (NSLs) after the Department of Justice Inspector General issued reports detailing the misuse and abuse of the NSLs. The Senate Judiciary Committee will hold a hearing on Wednesday, September 23rd, on reauthorization of the USA PATRIOT Act.

Feingold stated, "The JUSTICE Act permits the government to conduct necessary surveillance, but within a framework of accountability and oversight. It ensures both that our government has the tools to keep us safe, and that the privacy and civil liberties of innocent Americans will be protected. When he was in the Senate, President Obama was a strong ally on these issues, and I look forward to working with his administration to find common ground on commonsense reforms.

Senator Durbin noted, "The Government must use every legal tool available to protect us from the threat of global terrorism. But when those tools override Americans’ fundamental rights and liberties, we run the very real risk of never getting them back. As we move toward reauthorization of the PATRIOT Act, we’re proposing commonsense changes to better protect our most basic constitutional rights. Our bill strikes a careful balance between the law enforcement powers needed to combat terrorism and the legal protections required to safeguard American liberties.”

And Senator Bernie Sanders said, “Every American understands that we have got to do every single thing we can to protect the American people from terrorist attacks. There is no debate about that. Some of us believe, however, that we can be successful in doing that while we uphold the rule of law, while we uphold the Constitution of this country, which has made us the envy of the world."

Now, earlier this year, the ACLU released a report called Reclaiming Patriotism (PDF), that details the parts of the Patriot Act that need fixing most. Here's what it said about the three provisions that will expire at the end of the year and that are address by Senator Feingold's bill:

Section 206, a.k.a. the "roving wiretap" provision: Section 206 allows the FBI to get an order from the Foreign Intelligence Surveillance Court (FISC) to wiretap a target without having to provide the target’s name or even their phone number. The provision only requires that the target is described "with particularity," and that the FBI tell FISC why it had to tap the phone after it was tapped. It basically lacks any kind of specificity that, you know, a real warrant would need.

Section 6001, a.k.a. the "lone wolf" provision of the Intelligence Reform and Terrorism Prevention Act (IRTPA): Section 6001 authorizes the government to get secret surveillance orders against individuals who are not associated with any international terrorist group or foreign nation. As the report points out, an international terrorist acting independently of any organization or country is pretty pie-in-the-sky unlikely.

Section 215, a.k.a. the "library provision": The term "any tangible thing" should raise your hackles. Like the previous two provisions, Section 215 also lowers the bar on the standard of proof needed to get a court order to surveil. Before the Patriot Act was passed, probable cause showing that the target of surveillance was the agent of a foreign power was required. After Patriot, Section 215 allows the FBI to only claim that the items or information sought is relevant to an investigation. That means the person being surveilled doesn’t necessarily have to be the target of the investigation or even be suspected of involvement in terrorism.

The ACLU makes a few more important points about the bill:

The ACLU is also concerned about provisions of the Patriot Act that are not expiring, but which would be amended under Sen. Feingold’s bill. For example, the National Security Letter statute, which permits the FBI to secretly demand sensitive and private customer records from Internet service providers, banks, and credit companies, without any suspicion or prior judicial approval. To make matters even worse, the statute allows the FBI to put gag orders on NSL recipients, prohibiting them from discussing the record demand. The ACLU have filed three lawsuits on behalf of NSL recipients, and most recently, a federal appeals court upheld a lower court ruling that the NSL statute’s gag provisions violated the First Amendment.

The Justice Act would also fix the worst parts of the FISA Amendments Act (FAA). You remember the FAA, right? That was the law Congress passed last year that immunized telecoms from lawsuits for wiretapping innocent Americans, in collusion with the National Security Agency. In passing the FAA, Congress — with the help of then-Sen. Obama — basically signed away our Fourth Amendment rights by allowing the government to conduct dragnet surveillance of Americans’ international communications.

It goes without saying this is a monumentally important piece of legislation, both in terms of its concrete and tangible reforms, as well as the barometer for which it will serve as in terms of measuring whether Congress and the President are ready and brave enough to take on some of the most egregious aspects of the Patriot Act. This is an incredible opportunity to restore some semblance of privacy rights for the American public...and demonstrating that we are no longer a country that is in the grips of an irrational fear that overrides common sense and the Constitution itself.

Apparently you can watch the debate unfold next week: On Tuesday, the ACLU’s Mike German will testify about the Patriot Act before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. And the Senate Judiciary Committee will hold a hearing on the Patriot Act next Wednesday.

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