Perspective: The next chapter in the Patriot Act

If you thought the congressional debate over Terri Schiavo was intense, wait until the one over the Patriot Act begins this week.

Both the Senate and the House of Representatives are kicking off what promises to be a tumultuous series of hearings about whether to renew key sections of the controversial 2001 law. Roughly half of the law is set to expire on Dec. 31.

It's too early to know whether the hearings will be a sober analysis of surveillance and privacy or a Republican ploy to rubber-stamp a renewal. Early signs are positive; presiding over the Senate hearings will be Arlen Specter, R-Penn., who supported a partial repeal of the Patriot Act last year. His House counterpart, F. James Sensesnbrenner, R-Wis., has made similar comments in the past.

The Patriot Act, of course, has been one of the most polarizing laws of the last few decades. The Bush administration drafted large portions of it, and the president himself sings its praises every chance he gets.

The Patriot Act, of course, has been one of the most polarizing laws of the last few decades.

But worries about the law's effect on civil liberties led hundreds of communities to vote to condemn it. Even Democratic presidential candidate John Kerry said last year--in a somewhat wishy-washy way--that while he was correct to vote for the Patriot Act, he might be open to some fixes.

The law is long and convoluted. But five sections that are set to expire will have the most impact on the technology and telecommunications industries:

• Sec. 202: Computer hacking is a "predicate offense" permitting police to seek certain types of wiretaps.

• Sec. 203: Federal police can share information gleaned from a wiretap or Carnivore-like surveillance device with spy agencies. Previously, there was no explicit authorization for such data sharing.

• Sec. 212: Internet providers and other communications services can divulge information to police more readily. Specifically, customer records and other data may be legally handed over to police in an emergency.

• Sec. 215: Secret court orders can be used to obtain records or "tangible items" from any person or business if the FBI claims a link to terrorism. The unlucky recipient of the secret order is gagged; disclosing its existence is punishable by a prison term. Librarians are especially concerned about this (though the FBI claims it hasn't invoked Sec. 215 so far).

• Sec. 217: Computer service providers may eavesdrop on electronic trespassers legally. Police can be authorized to "listen in" on what's happening on the provider's network.

Rushed into law after 9/11
Much of the political debate over the Patriot Act in the last few years has, unfortunately, shed more heat than light. (I say this as someone who has been critical of it.)

Fortunately, a splendid new Web site called PatriotDebates.com offers a central location to find the best arguments on each side of the Patriot Act. It's a project of the American Bar Association's Standing Committee on Law and National Security and features section-by-section critiques pitting Bush administration types against civil libertarians.

"There's a good back-and-forth debate," says Orin Kerr, a former Justice Department prosecutor and one of the Web site's contributors.

Kerr, now a law professor at George Washington University, has defended the Patriot Act as representing modest changes to earlier law. "There's a broad consensus that the government needs these powers," Kerr says. "It's just a question of the standards."

Tim Edgar, legislative counsel for the American Civil Liberties Union and another PatriotDebates.com contributor, isn't as sanguine. Edgar believes that small-government conservatives will unite with Democrats to scale back the law.

"I feel better about where we are now than I did last year, even though we have fewer Democrats in both chambers," he says. "That's because it's not an election year. There's been a lot of unease about the Patriot Act among a lot of Republicans. But what made it difficult is by criticizing it last year, they would make it look like they're helping the Kerry campaign."

A number of conservative groups, including Americans for Tax Reform, the American Conservative Union, the Free Congress Foundation, the Citizens' Committee for the Right to Keep and Bear Arms and the Second Amendment Foundation are already calling on Congress to take a hard look at some of the most sweeping portions of the law.

That may or may not work, but it's certainly a better situation than what happened the last time around. On Sept. 13, 2001, while the fires were still ablaze at the World Trade Center, the Senate hastily approved with a near-zero debate what would eventually become the Patriot Act.

When the final vote was held the following month, members of Congress were required to vote on the bill without time to read it. The measure "has been debated in the most undemocratic way possible, and it is not worthy of this institution," Rep. Barney Frank, D-Mass., said at the time. Rep. Ron Paul, R-Texas, added later: "Almost all significant legislation since 9/11 has been rushed through in a tone of urgency with reference to the tragedy."

Sen. Specter has scheduled three hearings, and his House counterpart is talking about having eight of them. It's premature to be optimistic, but perhaps the result will be different this time around.

Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.

More Perspectives

[kxmmxk]

It figures

Well we know what party Declan belongs to by his "Republican ploy" comment. Notice no comment about a Democrat ploy to overturn the act without "a sober analysis of surveillance and privacy " and security/law enforcement needs.

The fact is there is very little in the Patriot Act that didn't already exist, it just brought them all together under one umbrella. If anything even those against the act should give it credit for bringing to light practices and laws that already existed but maybe people didn't know about.

Huh?

Newsflash Sherlock, in case you missed it:

The Republicans control the House and Senate.

As I read the story, it is either "a sober analysis or a Republican (read: majority strategy) ploy to rubber stamp...."

Next time try to read the story without your party affiliation glasses on and you might glean a different meaning. I know I did.

Patriot Act

Similar provisions to some in the Patriot Act did exist before 2001, for example, the FBI did have some powers to get warrants for wiretapping or other surveillance techniques. However, a significant difference in the Patriot Act is that FBI agents no longer have to show "probable cause" to get such warrants, in other words, they need no plausible evidence that a crime is being committed or is about to be committed. Such a situation is begging for abuse; careless or malicious agents or others with an agenda will be able to persecute innocent people using this provision.

I think there are a couple good parts to the Patriot Act, namely the fact that intelligence agencies and the FBI can now share information. (Although based on what I'm reading in news magazines, they still don't want to.)

What really dismays me is how people don't seem to understand how UNpatriotic this "Patriot" Act is. It threatens all our civil liberties, regardless of our political affiliations, but its supporters don't seem to understand that.

[kribor]

Your source is wrong about Sec 215 warrants

Gonzales told Reuters today that as of March 30, 2005 that 35 Seection 215 warrants have been served.