[Politech] CDT analyzes DOJ's Patriot Act defense website [fs][priv]

From: Declan McCullagh (declan@private)
Date: Wed Oct 29 2003 - 21:59:51 PST

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    Date: Tue, 28 Oct 2003 13:51:04 -0800 (PST)
    From: Joseph Lorenzo Hall <jhall@private>
    Reply-To: joehall@private
    To: Declan McCullagh <declan@private>, Dave Farber <dave@private>
    Subject: CDT Analyzes DOJ PATRIOT Act Defense website
    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
    * 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
    * 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
    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
    * 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
    * 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
    * 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@private
    Lara Flint, (202) 637-9800 ext. 113, lflint@private
    The Center For Democracy & Technology
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