FBI's top lawyer defends data-dragnet powers
NEW YORK--The FBI's top lawyer defended the Patriot Act on Wednesday, saying the bureau's increased powers are vital to aiding investigations into attacks such as the London subway bombing.
FBI general counsel Valerie Caproni said during a conference at New York University's law school that the 2001 changes to the Patriot Act involving national security letters (NSLs) were crucial to accessing phone records. NSLs are subpoena-like orders that the FBI can use to obtain information about companies' customers.
(Disclosure: I spoke also at the conference, titled "Privacy in the Age of National Security," later that day. It was organized by NYU law school's Center on Law and Security.)
Caproni, a former federal prosecutor who took her current position in 2003, said that after the July 2005 subway bombings in London--which killed dozens of commuters and injured hundreds more--the British security service gave the United States "lots" of phone numbers called by the suspected perpetrators.
"Was it appropriate to use national security letters to gather the phone records of people who were in direct contact with the British bombers?" she asked.
Caproni was alluding to the pre-Patriot Act requirement that the FBI needed "specific and articulable facts" that the information was related to an "agent of a foreign power" before an NSL could legally be used. Previously, only the FBI headquarters could issue NSLs.
Post-Patriot Act, any FBI field office can send NSLs, and the new requirement is that they be only "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."
Some of the other conference speakers (no, it wasn't me) had criticized that altered requirement in the Patriot Act. Caproni took issue with such criticism. "How could we have done it (otherwise)?" she asked. "We actually didn't know that someone who was in contact with the British bomber was a terrorist... It was relevant but we didn't have 'specific and articulable facts.'"
It's a fair point, and worth debating openly. It's true that one of the effects of reverting back to the pre-Patriot Act language would be limiting the FBI's ability to do certain types of data-dragnet investigations.
At the same time, if history is any indication, there are likely plenty of FBI investigations that aren't as clear-cut and that are more intrusive or invasive. And we do know, thanks to the Justice Department's inspector general, that the FBI already has seriously misused its post-Patriot Act NSL authority--which indicates that limiting data-dragnets may benefit Americans' privacy more than it hurts the FBI.
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan. 
Don't get me wrong, I am a patriotic US citizen and think this is the best country on earth. However, there seems to be a little contradiction herein in light of the congressional hearings that just took place in which Yahoo! executives were lambasted for complying with a foreign government's requests to do much the same as the US Patriot Act outlines.
Or am I missing something?
a free society is hard. Tough choices must be made, risks
must be taken, and often that means taking the hard way when
there is an easier one.
Yes, it's easier to catch criminals if the government strips away
our rights. There is no argument there. Just ask North Korea,
or China. They don't have the problems with crime that free
societies do, but the cost is obvious, and should be repulsive to
anyone living in a free country.
We are Americans, and we are not supposed to pay for safety
with our privacy, or our liberty. We are supposed to pay for it
with our courage, our strength, and sometimes, with our blood.
We are supposed to say "no thank you, I'd rather take my
chances against the terrorists", whenever such a cowardly,
short sighted, and expedient plan is proposed.
It's the same reason our courts are based on "innocent until
proven guilty". Sure, some criminals go free, but we as a nation
decided that we'd rather take our chances with the criminals,
than create a system that locks up innocent people. Should we
untie the hands of our police, and D.A.'s? No, of course not.
Living with criminals is better than living in a police state.
If we can agree on that, why is it so hard for some to
understand that the principle has not changed. The criminals
hide better when they have the whole world to hide in, and the
criminals are a bit more cold blooded than we are used to. All
this is true. It doesn't mean that we have to cut and run from
what makes us Americans.
If we sell our freedom, which is what got us to #1 in less than
200 years, we sell our greatest strength. Even if it stamps out
100% of the current terrorist threat ( I doubt it ), what will be
left, when the next threat, whatever it is, comes along?
Lampie The Clown