Revisiting the Patriot Act

It has been nearly two years since the Patriot Act's swift adoption in the wake of the September 11, 2001, terrorist attacks on the United States. But whether the law is the boon to law enforcement claimed by its supporters or the menace to civil liberties feared by its foes remains unclear.

Among its many provisions, the wide-ranging antiterrorism act defines new crimes such as bulk cash smuggling and attacks against mass transit systems, calls for greater information sharing among intelligence agencies, expands the scope of laws dealing with money laundering, and toughens immigration rules for aliens suspected of engaging in terrorist activities.

A major focus of the Patriot Act is on electronic surveillance. Among the act's innovations are provisions that allow federal law enforcement and intelligence agencies to use certain techniques that were previously restricted to telephone communications to collect information about Internet users. Notably, the agencies are authorised to trace users' visits to Web sites and to identify their email correspondents, without reading the actual messages.

In addition, the act requires a wide array of businesses and agencies to collect detailed information about groups and individuals and to relay the information to federal agencies, including data about users of the Internet.

New Tools or Threats?

Federal authorities say that the Patriot Act simply gives law enforcement 21st-century tools for combating terrorism, and that it contains ample safeguards to protect civil rights. They say that it has enabled them to file criminal charges against 255 suspects and to dismantle four terrorist cells operating in the United States.

"The Patriot Act gives investigators the ability to fight terror, using many of the court-approved tools that have been used successfully for many years in drug, fraud, and organised crime cases," US Attorney General John Ashcroft said in a recent speech in Boise, Idaho.

Critics such as the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Centre (EPIC) charge that the law is too invasive and violates Constitutional guarantees against unreasonable search and seizure. So far, however, little is known about how the government is invoking the act's provisions, and exactly what it does with the data gathered under it.

Last year, the ACLU, EPIC, and several other free-speech organisations filed a lawsuit under the Freedom of Information Act against the Department of Justice, trying to obtain documents detailing how the law is being used.

The suit was dismissed this spring, but not before the ACLU obtained a six-page list of Justice Department electronic surveillance orders approved under the act between October 2001 and January 2003. Virtually all of the information was blacked out for security reasons. Justice Department officials even deleted the total number of orders obtained.

A Congressional request for a similar status report yielded limited public disclosure.

Ongoing Challenges

Opening a second front on the topic, this summer the ACLU filed suit against US Attorney General John Ashcroft and US Federal Bureau of Investigation (FBI) Director Robert Mueller. The group seeks a court ruling that a specific provision of the Act, Section 215, is unconstitutional.

One of the most controversial provisions of the Act, Section 215 prohibits any individual or organisation from revealing that it has given records to the federal government pursuant to a Patriot Act investigation. That means that ISPs, Web-hosting services, email providers, and other potential targets of Patriot Act surveillance orders cannot inform customers that the government is spying on them.

"Any person or business who receives a request for information [under the Act] is strictly gagged from telling anybody about it, forever," says Ann Beeson, ACLU associate legal director. "And the person who is the target of the surveillance . . . is literally never notified that the government has been spying on them. Even years later, and even if it is perfectly clear there was never any wrongdoing."

The ACLU suit was filed on behalf of a number of Arab and Islamic groups that believe they were targeted for government investigation because of activities they contend are protected by the US Constitution. It alleges that the government may have covertly obtained a variety of protected materials under provisions of the Patriot Act, including computer records, email addresses, financial and educational records, and even records of panels that some individual plaintiffs have attended to criticize the Patriot Act.

One plaintiff, president of the Muslim Community Association of Ann Arbor, Michigan, says that he fears his organisation is a target of federal surveillance partly because of its work with a legal support committee on behalf of a Lebanese man who was arrested in connection with alleged immigration violations and was subsequently deported.

The association's records include "telephone numbers, emails, home and business addresses, and national origin and citizenship status, which, if released, would greatly compromise our privacy and free speech rights," says Nazih Hassan.

"Our ability to keep these records confidential allows our members and students to be protected from the possibility that the government will target them for exercising their First Amendment rights, including their rights to free speech, free association, and freedom of religion," Hassan says.

Debate Continues

Government officials pooh-pooh the concerns of civil libertarians, saying the Patriot Act requires them to convince a judge that a good investigative reason exists to conduct surveillance. Also, the act does not allow them to investigate people solely because of their political or religious views, proponents note.

Patriot Act supporters say that the only people who need to fear being investigated under provisions of the Act are terrorists and their supporters.

Despite such reassurances, critics continue to fear the worst from the act. When a "draft proposal" for its expansion appeared earlier this year, it ran into stiff opposition from several members of Congress.

More recently, US Senator Lisa Murkowski (R-Alaska) introduced legislation to require increased judicial oversight of electronic surveillance--including Internet use. Her bill would limit the FBI's authority to review a range of personal information, including medical, library, and Internet records, unless its agents can convince a judge that the behavior is linked to criminal activity.

"This legislation gives the courts more discretion in granting orders to allow search and seizure and electronic surveillance," Murkowski said in announcing her reform measures. "It should help calm the growing fears of Americans that government agencies could in the future overreach and needlessly violate Americans' rights to privacy without just cause."

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