Monday, October 26, 2009

Los Angeles Times Editorial: Privacy and the Patriot Act

Some good news on the media front to report. The Los Angeles Times editorialized on Sunday in support of Patriot Act reforms that would increase protection of individual privacy and civil liberties. Now, the paper doesn't go as far as I have, but they do make a solid case for some important improvements to the Act that somehow didn't survive the Senate Judiciary a few weeks back, but have been resurrected in the House by Representatives John Conyers, Jerrold Nadler and Bobby Scott.

To get a comprehensive breakdown of the PATRIOT Act provisions currently being debated in Congress as well as other important reform proposals being proposed, check out some of my past posts regarding the disappointing legislation that came out of the Judiciary Committee as well as the vastly superior legislation proposed in the House.

Specifically, click here for more about Feingold's Justice Act, click here for more about Obama's broken promises on this issue, click here for my discussion of the "sneak and peak" provision, and click here for more on the "Lone Wolf" provision, and click here for a detailing of the House bill.

Now to the Los Angeles Times Editorial entitled "Privacy and the Patriot Act":

Some parts of the original act were relatively uncontroversial, including those permitting the CIA and the FBI to share information more freely and allowing investigators to seek warrants for "roving wiretaps" targeted at individuals rather than telephone numbers. Others, however, unjustifiably eroded privacy rights. Particularly troubling were rules governing the acquisition of financial and other records that allowed investigators to conduct fishing expeditions -- as long as the documents were deemed "relevant" to a search for terrorists.

In December, three provisions of the Patriot Act are set to expire: those dealing with roving wiretaps and the acquisition of records, and another (added in 2004) that allows surveillance of what are known as “lone wolf” terrorist suspects. All three extensions strike us as reasonable, though in one case further privacy protections are essential.


More problematic is the provision allowing court orders for business records and other "tangible things" -- popularly known as the "library records" provision because of fears that investigators would monitor the reading habits of citizens (even though the law doesn't mention library records specifically). The Judiciary Committee bill explicitly makes it harder to obtain library records and requires investigators to show a court that the material sought is reasonably likely to be relevant to an intelligence investigation. Under current law, by contrast, a judge is supposed to presume that the materials are relevant. Even with that refinement, "relevance to an investigation" is too loose a standard for a court order. As Sens. Russell D. Feingold (D-Wis.) and Richard J. Durbin (D-Ill.) proposed, the bill should be revised to require a tighter connection to a particular foreign agent or terrorist.


The Patriot Act's greatest threat to personal privacy lies not in any of the provisions set to expire but in the law's expansion of the use of national security letters, subpoenas that allow the FBI to obtain records without a warrant. In 2008, the FBI issued 24,744 letters involving the records of 7,225 people. Not surprisingly, there have been abuses. In 2007, after an investigation of four FBI offices, the Justice Department's inspector general found irregularities in 22% of documents related to the issuance of national security letters. Last year, he found that the FBI had made "significant progress" in correcting violations.

Even so, the criteria for issuing the letters are too vague. At present, the government must merely certify that the information sought is relevant to an authorized investigation. The bill approved by the Judiciary Committee would increase the burden on the government slightly by requiring a written statement of specific facts demonstrating relevance. A narrower amendment by Feingold and Durbin -- which would have required issuance of national security letters to be related to a suspected foreign agent or terrorist or a possible confederate -- was rejected by the committee. It should be added on the Senate floor or in an eventual conference with the House.

Click here to read the entire editorial.

While I disagree with the Times support of the "Lone Wolf" provision, there's a lot here to like...and we need all the help we can get if we are to persuade enough lawmakers to stand up to the fearmongers and defend the Constitution against the full frontal assault the PATRIOT Act represents. If newspapers continue to take a strong stand for PATRIOT Act reforms designed to re-institute some basic protections against government abuse we will all be the better for it...and perhaps some of those frightened lawmakers that worry about being called "soft on terrorism" will find their spines and do what's right.

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