New electronic surveillance powers enacted in the aftermath of the Sept. 11 terrorist attacks have been used widely by law enforcement agents, but not solely in pursuit of terrorism; some new powers bestowed by the USA PATRIOT Act allegedly have been used in cases involving drug violations and credit card fraud.
Even as the law enforcement and defense communities consider requesting additional spying technologies and wiretap powers from Congress, lawmakers are taking a close, critical look at the powers enacted hastily in the USA PATRIOT Act. Tuesday, the House Judiciary Committee released the Justice Departments answers to dozens of questions lawmakers have raised.
Charging that the USA PATRIOT Act was rushed into law without thoughtful consideration, Rep. Jerrold Nadler, D-N.Y., said its enactment was a "shameful procedure" driven by vague threats from the Bush administration that lives could be lost if Congress did not hurry.
"With this kind of hysteria, the bill was passed almost sight unseen by this House," Nadler said during a hearing of the House Judiciary Committee. "It is now time for a sober second look."
The second look includes a review of the emergency searches done under the auspices of the Foreign Intelligence Surveillance Act (FISA), passed in 1978. Over the course of one year, Attorney General John Ashcroft authorized 113 emergency electronic surveillance orders. In the previous 23 years, only 47 such authorizations were issued.
Privacy advocates are particularly concerned about a provision in the USA PATRIOT Act that extends "trap and trace" and "pen register" authorities from the wireline telephone environment to the Internet and wireless networks. A full search warrant, which allows the interception of content, requires a showing of probable cause, but a trap and trace order, which allows the interception only of telephone digits dialed, requires a lower standard of judicial review. The problem for privacy rights advocates is that in Internet communications the equivalent of digits dialed is undefined, and content could be wrongly intercepted without a showing of probable cause.
"The law as it now stands really doesnt have standards in it," said Jim Dempsey, executive director of The Center for Democracy and Technology in Washington, adding that judges serve as rubber stamps. Dempsey urged lawmakers to amend the Act to require a minimal factual showing by law enforcement and a finding by a judge that the information sought under a pen register order would be relevant to an investigation.
Meanwhile, the law enforcement and defense communities are developing powerful new electronic surveillance technologies that raise additional privacy concerns. Tuesday, the House technology and information policy subcommittee held the second in a series of hearings on data mining projects under way at the Defense Advanced Research Projects Agency, Transportation Security Agency and FBI. Lawmakers complained that despite testimony from the agencies, Congress is not being presented with an accurate picture of what is occurring in the government and how it affects privacy.
"Our government is actively developing ways to circumvent our open government laws," said William Lacy Clay, D-Mo. "The agencies involved in data mining are trying to skirt the Privacy Act by claiming that they hold no data. Instead, the agency contracts with a private company to hold the data and to mine it."
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