Tuesday, January 18, 2011


By William Fisher

Barring some totally unforeseen development, key provisions of the USA Patriot Act will be renewed for yet another year – and almost no one will have noticed.

Earlier this month, the newly-minted chairman of the House Intelligence Committee, Rep. Mike Rogers, a conservative Republican from Michigan, introduced a bill to extend the law until February 2012.

Since the wording of his bill is virtually identical to the measure quietly passed by Congress last year, approval of the latest extension is likely to occur with little resistance and virtually no debate.

The three provisions likely to remain allow investigators to use "roving wiretaps" to monitor suspects who may be trying to escape detection by switching cellphone numbers; use so-called National Security Letters (NSLs) to obtain from third parties the business records of national security targets; and track "lone wolf" suspects who may not be members of any terrorist organization but who may be acting alone in planning attacks.

The NSL provision is arguably the most controversial part of the law. NSLs are requests for records the FBI can use to obtain people's communication, financial and credit information. No court needs to approve these requests, nor does the FBI have to suspect you of anything. The agency is required only to certify that you are "relevant" to an investigation.

A 2008 audit by the Department of Justice (DOJ) Inspector General found that in the mid-2000s, the FBI issued more than 50,000 NSLs, often seeking information about U.S. citizens and people several times removed from an actual suspect. The DOJ report confirmed that the FBI “regularly abused its ability to obtain personal records of Americans without a warrant.”

If the bill is passed, it would be the second time the president has broken his campaign promise to curtail the surveillance powers given to the FBI when the act was passed by a frightened Congress in the aftermath of the terrorist attacks of September 11, 2001. The original law was approved with only one dissenting vote – from Senator Russ Feingold, Democrat of Wisconsin, who was defeated in the recent mid-term election.

As a presidential candidate in 2007, Obama promised there would be "no more National Security Letters to spy on citizens who are not suspected of a crime" because "that is not who we are, and it is not what is necessary to defeat the terrorists."

Obama's campaign website noted that the then-Senator said he would support an extension of the Patriot Act that strengthened civil liberties protections. But he voted to extend the law in 2005 and 2008, without such increased protections, and also quietly signed last year's extension into law.

FBI and Department of Justice officials maintain that restricting their authority to conduct warrantless searches would harm national security.

Most recently, Obama's DOJ issued an NSL to Twitter, seeking information on the 635,561 users, including media, who followed the WikiLeaks outlet.

The author of the current bill, Rep. Mike Rogers, is a former Army officer and FBI Special Agent who investigated organized crime and public corruption in Chicago in the early 1990s. He has recently recommended the execution of Bradley Manning, the army private suspected of providing the secret and confidential documents now being released by Wikileaks.

With a few notable exceptions, the civil liberties community has been uncharacteristically quiet on the impending extension of the law.

One of the exceptions is Chip Pitts, former Chair of Amnesty International USA and former president and current board and executive committee member of the Bill of Rights Defense Committee (BORDC).

Pitts told The Public Record, “It’s nothing less than tragic that the Patriot Act is about to be renewed again without any significant resistance by our leaders -- political or NGO – or our citizenry.”

Pitts says the BORDC is lobbying Congress on this and other issues on January 27. He said he is “appalled” at the lack of public and organizational opposition, and hopes that “people will go to our website at www.bordc.org and sign up to join us.”

He declared, “It’s clear that without much greater citizen awareness and activism, the institutionalization of this and other egregious infringements on freedom – ranging from routine massive surveillance to indefinite detention to TSA gropes and irradiation – will simply calcify into permanent features of the American legal, political, and cultural landscape.”

“Terrorism doesn’t pose an existential threat to America, but these developments do. We must all act while we still can, and encourage our neighbors and friends to do so,” he said, adding that if there is no public pushback, “This is how democracy dies.”

Requests for comment from The Pubic Record to civil liberties organizations that ordinarily conduct vigorous opposition to the Patriot Act and other bills that restrict freedoms remain unanswered.

But the Patriot Act is of interest to groups other than those on the left. For example, Julian Sanchez of the libertarian Cato Institute says, "In the absence of a major scandal, though, it’s hard to see why we should expect the incentives facing legislators to be vastly different a year from now."

He added. "I’d love to be proven wrong, but I suspect this is how reining in the growth of the surveillance state becomes an item perpetually on next year’s agenda."

Sanchez writes, “A year ago, the protracted wrangling in Congress over the re-authorization of several expiring provisions of the PATRIOT Act made plenty of headlines. Most observers expected the sunsetting powers to be extended, but civil libertarians hoped serious and sorely needed reforms might be part of the package.

“The House and Senate Judiciary Committees held multiple hearings on the topic, and an array of competing reform and reauthorization bills (PDF) were proposed, adding extra safeguards (of varying stringency) to the greatly expanded surveillance powers Congress had approved in the aftermath of the 9/11 attacks.

“But Congress had a full plate, and so it punted—approving a straight one-year reauthorization without any modifications at the last minute. (You’d be forgiven for not noticing: The extension passed under the heading of the “Medicare Physician Payment Reform Act.”) As I noted in December, however, the Justice Department has promised Congress that it will voluntarily adopt some of the measures that had been floated in those reform bills—which would be a fine thing in itself, but I worried that the move seemed calculated to reduce the impetus for binding legislation.

“Well, I’ve just noticed—quite serendipitously, as there doesn’t appear to have been a whisper in the press—that the new House Intelligence Committee Chair, Mike Rogers, has introduced yet another one-year extension, which would push the sunset of the expiring provisions back to the end of February 2012.”

Sanchez writes, “Given the very limited number of days Congress has in session before the current deadline, and the fact that the bill’s Republican sponsor is only seeking another year, I think it’s safe to read this as signaling an agreement across the aisle to put the issue off yet again.”

Most recently, the FBI has asked Congress to expand its authority under the NSL section. It wants the statute that allows it to issue NSLs for phone records, and a limited set of email records, to be expanded to allow the FBI to demand a wide range of Internet activity records as well.

The FBI isn't defining what kinds of Internet records it wants. But some have pointed out that the FBI's proposal could allow them to get things like all of the websites you visit, your web search history, location information or social network activity.

The blog of the American Civil Liberties Union contains one of the relatively few pronouncements to come from the organizations that usually pressure Congress to strengthen the protection of civil and human rights.

The ACLU blog writes that the “FBI's Latest Power Grab Is a Bold and Unnecessary Move.” In the absence of similar expression of opposition from other groups, the ACLU blog is worthy quoting at length,

It says: ”What do the ACLU, the former director of the NSA and a tech industry lawyer all have in common (and this is not a joke)? They believe that the government's recent request to let the FBI get Americans' internet use records in national security investigations without going to court, and without any suspicion of wrongdoing, is a huge expansion of authority that would open floodgates of sensitive information to the FBI.”

The ACLU adds, “The FBI is asking that the statute that allows it to issue NSLs for phone records, and a limited set of email records, be expanded to allow the FBI to demand a wide range of internet activity records as well. The FBI isn't defining what kinds of Internet records it wants. But some have pointed out that the FBI's proposal could allow them to get things like all of the websites you visit, your web search history, location information or social network activity.

“If you're reading this, you obviously use the Internet and know what incredibly sensitive information you put out there each day in an attempt to learn, read, educate yourself and communicate with others. We believe,as you probably do, that Internet records are especially sensitive and need to be protected from FBI snooping by a court order and suspicion requirements.

“The Obama administration says Internet records are the same as the phone records that they are already getting with NSLs. But looking at a list of websites a person visits can tell you a lot more about his or her life than a list of phone numbers and, as mentioned above, law enforcement can create a complete picture of the most sensitive aspects of a person's life by obtaining a list of his or her internet habits.

“Trust us,” says the ACLU blog. “The administration claims that it can't get "content," or the meaning of your communications, just the records of who you contact. However, there isn't a clear and binding rule on whether or which Internet records are content. The administration has said in the past —and has not yet clarified in this debate — that it considers some Internet records to be content and protected by court order.

It is essentially asking Congress and the public just to trust them to make a call on what Internet records should be obtained by the FBI. Regardless of what legal jargon the administration unilaterally has decided covers Internet records, they need to be protected. Congress has the ability and the responsibility to protect our privacy, and it needs to reject administration attempts to authorize this collection.

“Terrorist threats overrule privacy protections (as usual): Just as the government always argues in its attempts to eviscerate the role of the courts, the Obama administration says it needs to be more "nimble," and going to court is prohibitively burdensome. But getting innocent Americans' private records is not supposed to be easy, nor should it be.

“There must be a check of an independent judge and a requirement that you are suspected of doing something wrong. The Fourth Amendment creates a presumption of privacy and does not contain an "inconvenient paperwork" exception. If we are talking about true emergencies, the government already has the authority to get records and follow process after the fact. All of our national security laws have emergency exceptions that allow them to respond to immediate threats.

“Besides, the Justice Department Office of Legal Counsel memo clarifying that most Internet records could not be obtained by NSL was written in November 2008. The administration has undoubtedly been getting these records through other means for almost two years, just with tools that have at least minimal checks and balances.

“This is not ultimately about getting the records; but about doing so in a way that trades convenience for privacy. The administration is asking Congress to give the FBI more of your private information without even going to a judge. We're asking Congress to reject this power grab and side with the Constitution — just as their oath of office demands,” the ACLU blog concludes.

Under the original NSL provision, the FBI also was given the power to prohibit any Internet service provider, bank or credit company from which it demands sensitive customer records from ever disclosing anything about the record demand -- not even to their own attorneys. In other worlds, a “gag rule.”

The ACLU, the American Library Association, and other groups, challenged the constitutionality of this "gag" power in three cases. The result: A federal appeals court ruled unanimously that it is unconstitutional to gag recipients of a National Security Letter from discussing its receipt unless disclosure might interfere with “an authorized investigation to protect against international terrorism or clandestine intelligence activities.”

The decision in Doe v. Mukase by the 2nd U.S. Circuit Court of Appeals upheld a September 2007 district court ruling, although the appeals court narrowed the circumstances under which the FBI can enjoin a provider of internet access, interpreted as including libraries, from revealing the receipt of a National Security Letter demanding the e-mail addresses and websites accessed by one or more users.

American Library Association President Jim Rettig hailed the ruling as “protect[ing] our First Amendment freedoms by placing reasonable limitations on the FBI’s ability to impose a gag order when issuing National Security Letters” as well as “requiring meaningful judicial review when an NSL gag order is challenged”—a process that stretched to 18 months for four Connecticut librarians who successfully fought the NSL they received in 2005. However, he also expressed concern that the decision “does not address the constitutionality of the FBI’s use of NSLs to obtain an individual’s personal data.”

"We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words 'national security,'" said Melissa Goodman, staff attorney with the ACLU National Security Project.

"This is a major victory for the rule of law. The court recognized the need for judicial oversight of the government's dangerous gag power and rejected the Bush administration's position that the courts should just rubber-stamp these gag orders. By upholding the critical check of judicial review, the FBI can no longer use this incredible power to hide abuse of its intrusive Patriot Act surveillance powers and silence critics," she said.

But that was in 2007.

This week, The Public Record asked leaders of the most prominent civil and human rights groups to explain their relatively passive position on the renewal of the Patriot Act. Most did not respond. One who did requested that his name not be used because he is still hoping to energize some of the silent voices.

This is what he told us:

“Many of my colleagues have just given up on the Patriot Act, either expressly or implicitly (in terms of the mindshare, energy, and resources dedicated to the issue). They don’t seem to understand or recall just how foundational this supposedly ‘emergency’ law was in setting the stage for the infringements that came later.”

He continued: “Sheer exhaustion plays a role, but the fact that it’s been nearly a decade means that generational change is even starting to have an impact, as have all the other irons in the fire -- so many other traumatizing events have come up to distract and rightfully demand attention (torture, even broader surveillance, illegal war, assassinations), and a corrosive new so-called realism (cynicism, actually) about the politics of terrorism and the complicity of our fear-driven media and political class, combined of course with a reluctance to undermine our first black president and whatever incremental progressive achievements he can make.”

He concluded: “So the situation’s pretty bleak out there, and will only turn around, in my view, if there is much greater bottom-up, local, and peer-to-peer, community-to-community activism.”