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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 particularly pressing for politicians is that critics of the act span the political spectrum.
The American Civil Liberties Union is naturally wary of expanded police powers, but the issue became more complicated when former U.S. Rep. 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, 2001, terrorist attacks has had an adverse effect 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 last week in testimony before the Senate Judiciary Committee here.
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 Internet use patterns and gun purchases, with an order from the Foreign Intelligence Surveillance Court, even if a 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 a national security letter, also called an administrative subpoena, to obtain records such as credit reports, financial documents, and telephone and e-mail 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 (Foreign Intelligence Surveillance Act) court order.
The Department of Justice, trying to ease the concerns, recently said Section 215 has not been used to obtain business records; however, that announcement underscored one of the wider concerns about the USA 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 last week that the Justice Departments concession that Section 215 has not been used illustrates the need to repeal or amend it.
Proponents of the USA Patriot Act charge that critics have exaggerated 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 is a law professor at Georgetown University Law Center, in Washington, said the section gives courts the same power to order the production of business records that grand juries have long had.
Legislators are reviewing several Patriot Act amendments.