WASHINGTON—Two years after granting the FBI a series of new electronic surveillance and search powers to combat terrorism, Congress is taking a closer look at the impact of those powers and of other provisions in the USA Patriot Act. What makes the matter particular pressing for politicians is that the acts critics span the entire political spectrum.
It comes as no surprise that the American Civil Liberties Union would be wary of expanded police powers, but the issue became more complicated when former congressman Bob Barr, known for his conservative leaning, joined the ACLUs cause.
According to Barr, who voted for the USA Patriot Act, the governments response to the Sept. 11 terrorist attacks has had an adverse affect on individual liberties.
"Little did I, or many of my colleagues, know [the Act] would shortly be used in contexts other than terrorism, and in conjunction with a wide array of other, privacy-invasive programs and activities," Barr told lawmakers Tuesday in testimony to the Senate Judiciary Committee.
Two provisions that expand the governments power to obtain personal records without the traditional checks and balances surrounding search warrants and subpoenas are particularly troubling to rights advocates. One provision (Section 215) allows the FBI to demand business records, such as a subjects medical history, Internet use patterns and gun purchases, with an order from the Foreign Intelligence Surveillance Court, even if the subject is not a suspected terrorist. Critics say the order amounts to a rubber stamp.
Another provision (Section 505) gives the government greater power to use what is known as a "national security letter"—also known as an administrative subpoena—to obtain records such as credit reports, financial documents, and telephone and email bills. A national security letter does not require law enforcement to show probable cause, nor does it require even the low standard of judicial review required by a FISA Court order.
The Department of Justice, trying to assuage the concerns, recently announced that Section 215 has not been used to obtain business records. However, that announcement served to underscore one of the broader concerns about the Patriot Act, which is that lawmakers enacted broad new powers without determining if the powers were necessary.
James Dempsey, executive director of the Center for Democracy and Technology in Washington, told Congress today that the Justice Departments concession that Section 215 has not been used illustrates the need to repeal or amend it.
Proponents of the Patriot Act charge that critics have overblown the breadth of the new surveillance powers. Viet Dinh, a former Justice Department attorney who was instrumental in crafting the Act, told Congress that fears over Section 215 are unfounded. Dinh, who now is a law professor at the Georgetown University Law Center, said that the section gives courts the same power to order the production of business records that grand juries have long had.
The ACLU and CDT are urging Congress to pass a bill called the SAFE (Security and Freedom Ensured) Act to render the FISA court order more than a rubber stamp. Before law enforcement agents could get a FISA Court order to obtain personal records from banks, universities, doctors, travel agents and employers, they would have to show a reason for suspecting that the records relate to a spy, terrorist or other foreign agent. Under the legislation, additional search and Internet monitoring provisions would expire at the end of 2005.
Rights advocates have achieved considerable success in raising awareness on Capitol Hill about the concerns regarding executive branch data-mining projects, but they urged lawmakers today to remain vigilant. Congress has blocked funding for the controversial Operation TIPS and Total Information Awareness programs, but critics say these programs are re-emerging under different guises. The MATRIX (Multi-state Anti-Terrorism Information Exchange) program, for example, could be TIA by another name, Barr cautioned.