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What will we give up? Federal lawmakers reconsider provisions of the USA Patriot Act

As federal agents closed in on a drug trafficking ring in Pittsburgh, they discovered that several of the group's leaders also were in on a credit card racket. The agents searched a Federal Express package and found counterfeit cards.

Normally, the agents would have had to produce a warrant and inform the recipient before they could search the package. But that posed a problem for the investigators. 

"Had notice of the Federal Express search tied to the credit card investigation been immediately given, it could have revealed the ongoing drug trafficking investigation prematurely and the drug trafficking investigation might have been seriously jeopardized," U.S. Attorney General Alberto Gonzales told the Senate Intelligence Committee in April.

Instead, the agents relied on a provision of the 2001 USA Patriot Act to delay for a few weeks telling the suspects of their search. The act expanded law enforcement's search powers in the wake of the September 11 terrorist attacks.

Mary Beth Buchanan, the U.S. attorney in Pittsburgh, says that was instrumental in wrapping up both investigations. The drug ring, for which 51 people were indicted, was the largest bust in the Pittsburgh area. As a result, the city's murder rate plummeted, along with the number of fatal heroin overdoses. 

"We would not have been able to conclude the investigations as quickly, and we would not have been able to identify some of the participants" in the credit card scheme without the Patriot Act, Buchanan says. 

That so-called sneak-and-peek, or delayed notice provision, though, is dead center in the debate over whether Congress should scale back the Patriot Act as parts of it expire this year. With critics from both parties attacking portions of the law — even permanent provisions — that debate could be fierce.

One of those critics, U.S. Sen. Richard Durbin, an Illinois Democrat from Springfield, put forward an alternative proposal earlier this year that is co-sponsored by two GOP senators. Durbin predicts the fight over the Patriot Act will split party ranks in a "historic face-off."

Not everybody is convinced. Another member of the Illinois congressional delegation, Republican U.S. Rep. Ray LaHood of Peoria, says lawmakers likely will renew the law in short order this summer. He says even the most controversial provisions have worked well. "I think they're minimal; I think they're effective; and I think they've sunk in with the American public."

But discussions over the Patriot Act, whether on Capitol Hill or at the kitchen table, almost inevitably lead to the larger question: Have Americans given up too much privacy to combat crime, including terrorism?

"The Patriot Act has become the focus of a larger phenomenon. If the Patriot Act was repealed lock, stock and barrel tomorrow, we'd still have a big problem with privacy," asserts Jay Stanley, communications director of the Technology and Liberty Program of the American Civil Liberties Union.

New laws and technology make the freedom from government intrusion far more complicated today, but even our Founding Fathers wrestled with the issue. The very first Congress dealt with the conflict when it enacted the Third and Fourth Amendments, keeping the government out of homes except in limited circumstances. But the need to crack down on bootleggers, drug dealers, war protesters and foreign agents has, at times, pushed the pendulum the other way. 

Now, some privacy advocates wonder whether Americans are permanently ceding too much ground to the government.

"I think it's very difficult to retrace your steps in this process," Durbin says. "It's like that old saying: Once the garlic is in the soup, you can't get it out."

Durbin says his concerns about privacy stretch well beyond the powers granted to law enforcement under the Patriot Act. And he's not alone.

It's no surprise that the American Civil Liberties Union is calling for curbs on police powers, government surveillance and data tracking. But so is the Cato Institute, a libertarian think tank based in Washington, D.C. Gun-rights groups and wary conservatives also object to what they see as an erosion of privacy rights.

In addition to renewing expiring parts of the Patriot Act, Congress has approved a nationwide system for exchanging driver's license information among states. The U.S. State Department is working on a plan to put radio transmitters that will broadcast personal information in U.S. passports. And the nation's highest court continues to grapple with questions about how far the U.S. Constitution goes in limiting police authority to search and seize citizens and their property.

"I don't think there's been a single war in our history when there hasn't been a debate over liberty and security, and the war on terrorism is no different," says Durbin, the No. 2 Democrat in the U.S. Senate.

But that doesn't mean everybody is convinced that the privacy rights of Americans are under assault. Law enforcement officials argue that several of the provisions enacted in recent years have been long overdue, a fact that was made painfully clear by the September 11 airline hijackings four years ago.

LaHood says Congress likely will reauthorize the expiring parts of the Patriot Act this summer "unless people can really come forward and talk about some abuses that have taken place to common, ordinary, peaceful, law-abiding citizens." LaHood, a close ally of U.S. House Speaker J. Dennis Hastert, another Illinois Republican, says the American Civil Liberties Union and other opponents to the act have yet to make that case.

"If you thought your rights were abridged, you would be running to some lawyer or some organization. I think most Americans would do that," LaHood says. So far, though, he says he hasn't heard of any situations showing that law enforcement has abused its new powers. 

One of the most controversial components of the Patriot Act gives police and prosecutors access to library records — a measure LaHood opposes — but he notes the FBI says it has never used those powers.

"The ball is sort of in the court of these rights groups in terms of coming forward and saying, 'Hey, this is where, you know, we maybe stepped over the line.'"

Where, exactly, that line lies is a good question. Although politicians and citizens often talk about privacy rights, those rights are not explicitly mentioned in the federal constitution. 

And rights written into federal law can vary greatly from one context to the next. Records of what movies someone rents at Blockbuster are treated different from records of what he or she checks out at the local library. Different regulations apply to grades earned in college, treatment received in a hospital and payments made toward credit card debt.

Further complicating the debate is that the right to privacy has been used to describe the idea that citizens shouldn't have to endure invasive government searches or authorities meddling in such personal decisions as how to raise a child, whether to have an abortion or whom to sleep with. The term also is used when discussing topics that don't directly involve the government at all, such as measures to guard against identity theft.

But when it comes to criminal investigations, the Fourth Amendment provides protections against unwarranted searches and seizures. Still, the extent of those safeguards is often in flux. For example, the U.S. Supreme Court initially ruled that they didn't apply to wiretaps. In 1928, the high court allowed prosecutors to use secretly taped conversations in the trial of a suspected bootlegger. It determined that the Fourth Amendment only covered physical searches.

That ruling stood for 39 years before the court reversed the decision. In Katz v. United States, the justices declared that the "the Fourth Amendment protects people, not places." 

"What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," the court reasoned. "But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

Even though many Americans would now automatically assume the police would need a warrant to listen in on phone conversations, the court has allowed uninhibited police eavesdropping longer than it has prohibited the practice. But concerns about government wiretaps are alive again in the debate over the Patriot Act. The law allows law enforcement to monitor multiple phone lines or computers associated with a suspect, rather than requiring police to ask a federal judge for permission to monitor each one individually. So now, not only does the Fourth Amendment apply to people instead of physical property, but warrants do too.

Roving wiretaps are one of the issues Durbin recommended scaling back in legislation he is pushing as an alternative to the Patriot Act. He argues that the law gives authorities too much leeway and gives them the opportunity to eavesdrop on the conversations of innocent people.

Jan Paul Miller, the U.S. attorney for the Central District of Illinois, says long-standing safeguards protect ordinary citizens from having their conversations heard by law enforcement officers in criminal investigations.

"Getting a wiretap is a big deal" for prosecutors, Miller says, because prosecutors must show a judge they have good reasons to believe the suspect is engaged in criminal activity and using the targeted phones to do it. On top of that, they have to convince a federal judge they've run out of other options for obtaining the information they need.

Once investigators get permission to eavesdrop, they have to check in with a federal judge, usually once a week, to keep the court informed of their progress. Running a wiretap means keeping monitors on the job around the clock, but the investigators have to hang up whenever it's clear a conversation doesn't involve crime. They have to keep a log of the calls and then get transcripts of the conversations they want to use, Miller points out.

"It uses a lot of manpower. You're not going to do it unless you need it and it's a very important case. It drains resources." 

Across the country, state and federal judges approved 1,710 applications for wiretaps in criminal cases last year, a 19 percent increase from 2003. (Wiretaps in intelligence cases are, obviously, confidential.) Federal judges approved 730 of those requests; state judges signed off on the rest. None of the requests were denied, according to the Administrative Office of the U.S. Courts.

While roving wiretaps and sneak-and-peek searches concern clearly private spaces, other measures in the Patriot Act address information that privacy advocates argue should remain fiercely guarded, even if it is "in an area accessible to the public."

The most obvious example of that is the FBI's authority to request "any tangible thing" — including library and medical records — relating to an intelligence investigation.

But the ACLU's Stanley also highlights another provision in the Patriot Act that allows the U.S. Treasury Department to track financial transactions by a broad swath of citizens, even as federal lawmakers have clamped down on information-sharing among private companies.

A 1999 law gives consumers the right to opt out of certain information-sharing arrangements among banks and other financial institutions. The Gramm-Leach-Bliley Act requires those institutions to send consumers notices about how companies are using their personal data. But, Stanley says, those protections do nothing to prevent the federal government from inspecting the personal information from those institutions. Further, one provision of the Patriot Act requires financial institutions, casinos and money transmitters to monitor accounts for activity that could be indicative of money laundering.

The Treasury Department maintains the network of databases, which is called the Financial Crimes Enforcement Network, or FinCEN. And that has privacy advocates up in arms. Jim Harper, the director of information policy studies at the Cato Institute, which advocates for smaller government, wrote last year that the motivation behind the monitoring program is to "constantly survey the financial movements of the entire society in order to root out bad actors, using the financial services sector as a sort of deputy investigator."

"The privacy of individual consumers' financial data is obliterated by programs such as this," he argued. Furthermore, Harper asserted, the database allows federal agents to investigate people instead of crimes. They can look at personal records and discover crimes that haven't even been reported.

"Crime fighters should always identify and punish perpetrators of known crimes. They should not identify people 'suitable for punishment' and then identify what they may have done wrong," Harper wrote.

A law enacted in the early 1970s curbs the amount of information the FBI and other federal agencies can gather on U.S. citizens, but Stanley says the law doesn't prevent the government from using such outside contractors as ChoicePoint or LexisNexis to provide that information.

A more recent example, he argues, shows how easily government can collect data on its citizens, opening the door to identity theft or other abuses. Congress incorporated national standards for driver's licenses in a measure that would provide money for soldiers in Iraq and Afghanistan. 

If President George W. Bush signs the proposal as expected, it will require that all states verify citizenship before issuing a license. If states want to give licenses to illegal immigrants, they would have to issue them distinctive licenses. Only approved licenses could be used, for example, to show proof of identity before boarding a plane.

And, some privacy advocates argue, once law enforcement officials expect everyone to have standard identification, they could demand it more frequently because of a ruling handed down by the U.S. Supreme Court last summer. In that decision, the justices upheld the conviction of a Nevada man for not identifying himself to police, though the officer had no indication that he had committed a crime.

LaHood says those concerns are a stretch. "I don't think it would be dissimilar to their ability, if somebody stops somebody, to tap into a system and find out if somebody's got a DUI or somebody's got a ticket or somebody's illegal," he says. "I think, really, it gives them instant information as soon as the law enforcement system taps into the system."

But Stanley says the real concern is "not so much the piece of plastic but the database behind it."

All states would have to store their license information in a format compatible with other states and the national government. And, given private industry's interest in driver's license information for purposes as varied as direct-mail advertising or background checks, the privacy protections for ordinary citizens could be dismantled, he says. "Our saving grace for privacy heretofore has been the different databases. But, if you put it all together, data surveillance can become so rich that it becomes like video surveillance," he argues.

Even identification cards could betray more information, Stanley says. The U.S. State Department recently backed off a proposal to implant radio-transmitting chips into American passports, but the respite may only be temporary. The chips, which are expected to replace bar codes in many applications, can be read by anyone who comes close to them. That means if the information is unencrypted, passersby could lift a passport owner's identity without ever talking to or touching their victim, according to Stanley.

Although it seems only a remote possibility now, the rapid advance of technology means America is increasingly at risk of becoming a "surveillance society," he says.

 "Technologically, the George Orwell world is here. It's a question of policy and resolve," Stanley argues.

Again, LaHood is skeptical. He says people are accustomed to showing their driver's licenses or state identification to board airplanes or enter public buildings. In fact, such precautions often give Americans a sense of a "security blanket" because they know authorities are paying attention to their safety, the congressman says.

"I'll tell you this: I haven't had a lot of people coming to me clamoring about the fact that they've lost their sense of privacy as a result of the Patriot Act. 

I really haven't. I think people, since 9/11, have been accustomed to the idea," he says. 

Miller, the U.S. Attorney in Springfield, says many of the objections to the Patriot Act are the result of a "tremendous amount of misinformation and misunderstanding." For example, he says, people often complain that the FBI can get access to library records, but they don't realize those records could have been subpoenaed before the Patriot Act. In fact, Miller notes, library records were used in the investigation of the 1997 murder of fashion designer Gianni Versace.

Officials from the U.S. Department of Justice also regularly point out that a grand jury investigating a serial killer in New York subpoenaed library records to see who had been checking out books by a poet that may have inspired the Zodiac killer. 

The Justice Department also reported that it has used the business records provision of the Patriot Act 35 times as of the end of March. The agency has asked for records dealing with driver's licenses, apartment leases, phone bills and credit cards — but never a library or bookstore record.

A federal prosecutor defending the provision told a U.S. House panel in April, "Libraries should not be carved out as safe havens for terrorists and spies. We know for a fact that terrorists and spies use public libraries."

The question for Congress, and ultimately the country, is greater than whether that provision should remain law. It is only one example of the federal government's increased reach into our personal space, which means the pending battle over the Patriot Act could be a precursor of the privacy debates to come.

Patriot Act sunsets

About a 10th of the USA Patriot Act, which Congress enacted to give law enforcement more tools in the wake of the September 11 attacks, expires at the end of this year. The provisions up for renewal include:

• Authority for the Federal Bureau of Investigation to obtain with a judge's permission medical, financial and library records. Gun owners also worry that it allows the FBI to keep tabs on firearm purchases.

• Permission for police and prosecutors to obtain roving wiretaps to cover multiple phone lines used by a suspect rather than asking a federal judge for permission to monitor each line individually.

• An expanded list of crimes for which federal authorities can request wiretaps.

• Longer-lasting search warrants issued under the Federal Intelligence Surveillance Act.

• Looser restrictions on when investigators can use technology to keep tabs on incoming and outgoing calls to a suspect's phone, as well as Internet-routing information.

• Authorization of nationwide search warrants for electronic evidence in terrorism cases.

• Expanded power for criminal investigators to use methods authorized under the Federal Intelligence Surveillance Act for espionage cases. Law enforcement can now use those methods as a "significant" purpose of their investigation rather than the "primary" one. 

Meanwhile, most of the law will remain on the books as is, unless Congress decides to change it. The permanent parts include the ability of law enforcement to use sneak-and-peek, or delayed-notice search warrants, where the subject of a warrant isn't immediately notified that a search took place; a definition of "domestic terrorism" that the American Civil Liberties Union and its allies argue could be used to target political protesters; and extensive provisions dealing with money laundering and border security. 

Daniel C. Vock



Fear and freedom
In times of stress, government responds by restricts civil liberties, then regrets the action

Author Geoffrey R. Stone calls his thesis a simple one. The University of Chicago law professor believes that in times of crisis the U.S. government has been too quick to shun liberty in the name of security.

Stone, the author of last year's Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism, presented that theory in a speech before a Chicago lawyers' group. U.S. Sen. Richard Durbin, an Illinois Democrat, asked in November that the speech be read into the Congressional Record. In that speech (as excerpted and edited by Illinois Issues), Stone wrote:

We live in perilous times. Since September 11th, our government, in our name, has secretly arrested and detained more than a thousand non-citizens. It has deported hundreds of non-citizens in secret proceedings. It has eviscerated long-standing U.S. Justice Department restrictions on Federal Bureau of Investigation surveillance of political and religious activities. It has vastly expanded the power of federal officials to invade the privacy of our libraries and our e-mails. It has incarcerated an American citizen, arrested on American soil, for almost a year — incommunicado, with no access to a lawyer, and with no effective judicial review.

 It has sharply restricted the protections of the Freedom of Information Act. It has proposed a TIPS program to encourage American citizens to spy on one another. It has laid the groundwork for a Department of Defense Total Information Awareness program to enable the government to engage in massive and unprecedented data collection on American citizens; it has detained a thousand prisoners of war in Guantanamo Bay in cynical disregard of the laws of war; and it has established military tribunals without due process protections. 

I have a simple thesis: In time of war and national emergency, we respond too harshly in our restriction of civil liberties, and then, later, regret our behavior. 

In the Civil War, President Abraham Lincoln "had to balance the conflicting interests of military necessity and individual liberty," Stone wrote. In doing so, he suspended the writ of habeas corpus on eight separate occasions. In what Stone calls the most severe instance, military officers arrested and imprisoned 38,000 civilians they deemed guilty of disloyalty. Those imprisoned were not given the benefit of a judicial hearing.

 A year after the war ended, the Supreme Court ruled Lincoln had no constitutional authority to withhold the right of trial by judge or jury "even in time of war, if the ordinary civil courts were open and functioning." 

Similarly, during World War I, President Woodrow Wilson, facing opposition, claimed that disloyal individuals "had sacrificed their right to civil liberties." More than 2,000 dissenters were prosecuted, and some were sentenced to as much as two decades in prison. The Sedition Act of 1918 prohibited language considered disloyal to the government, the flag or the U.S. military.

"Even the Armistice didn't bring this era to a close, for the Russian Revolution triggered a period of intense public paranoia in the United States,'' Stone wrote. Thousands were arrested or deported for "suspicion of radicalism" before the act was repealed. The court later found the laws violated the free speech rights of those arrested or deported. 

 President Franklin Delano Roosevelt, who granted amnesty to imprisoned World War I protesters, responded to the bombing of Pearl Harbor by ordering the Army to designate sections of the country as military areas from which civilians could be excluded. "Although the words Japanese or Japanese American never appeared in the order, it was understood to apply only to persons of Japanese ancestry." Within eight months, 120,000 people of Japanese descent were forced from their homes in the western United States to one of 10 internment camps. Two-thirds of those interned in the isolated camps "in wind-swept deserts or vast swamp lands" were 

American citizens. "Men, women and children were placed in overcrowded rooms with no furniture other than cots,'' Stone wrote. "They found themselves surrounded by barbed wire and military police, and there they remained for three years." 

It took nearly 40 years for a congressional commission to declare that the internment was based on racial prejudice rather than military necessity. Reparations were granted eight years later, in 1988.

In the 1950s, a series of federal, state and local laws placed restrictions on free expression and free association for Communists. Stone notes that there were public and private "blacklists" and criminal prosecution of the leaders and members of the Communist Party of the United States. 

The term McCarthyism lingers as a reminder of a period in American history when the government was quick to thwart civil liberties.

The circumstances that have tended to produce . . . abuses invariably arise out of the combination of a national perception of peril and a concerted campaign by government to promote a sense of national hysteria by exaggeration, manipulation and distortion. 

The goal of the government in fostering such public anxiety may be either to make it easier for it to gain public acceptance of the measures it seeks to impose or to gain partisan political advantage, or, of course, both. If all that sounds familiar, it should. 

To return to our own perilous time: The threat of terrorism is real, and we expect our government to protect us. But we have seen disturbing, and all-too-familiar, patterns in our government's activities. To strike the right balance in our time, we need judges who will stand fast against the furies of the age; members of the academy who will help us see ourselves clearly; an informed and tolerant public who will value not only their own liberties, but the liberties of others; and lawyers with the wisdom to know excess when it exists and the courage to preserve liberty when it is imperiled.


Daniel C. Vock is the Statehouse bureau chief for the Chicago Daily Law Bulletin.

Illinois Issues, June, 2005

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