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29 Hum. Rts. 3 (2002)
USA Patriot Act - The Good, the Bad, and the Sunset

handle is hein.journals/huri29 and id is 5 raw text is: USA , Patriot Act The Good, the Bad, and the Sunset By John Podesta ecent tragic events have brought about a rapid reconsideration of the legal restrictions placed on law enforcement and the intelligence commu- nities. On October 26, President Bush signed into law the USA Ntriot Act (Patri- ot Act), which makes significant changes in the legal structure within which the law enforcement and intelligence communi- ties operate. This article focuses on the key provisions of the Patriot Act that per- tain to electronic surveillance and intelli- gence gathering. Notwithstanding the haste with which Congress acted, the pro- visions of the new law relating to elec- tronic surveillance, for the most part, are a sound effort to provide new tools for law enforcement and intelligence agen- cies to combat terrorism while preserving the civil liberties of individual Americans. Some changes simply update our surveil- lance laws to reflect the fact that we live in a digital age. Other sections expand the surveillance powers of our law enforcement and intelligence communi- ties in ways that make sense in light of the new threats facing our country. When we decide, however, to expand surveillance powers to track ter- rorists, all residents, not just the terrorists, are affected. A common problem run- ning through many of the new authori- ties contained in the Patriot Act is the reliance on executive branch supervision rather than meaningful review by a neu- tral magistrate of the potentially highly intrusive surveillance techniques that are authorized. There are several common sense changes that could be made to the new law that would provide better pro- tections for civil liberties without sacri- ficing security. Because of the rapidity with which the law was enacted, Con- gress, wisely, included a four-year sunset service providers, which permits a judge to satisfy herself that there are specific and articulable facts that the information sought is relevant and material to the ongoing investigation. This is a provision that Congress should review as part of its sunset process and amend. Section 203 Previously, domestic law enforcement and foreign intelligence collection oper- of many of the provisions of the new Act. ated on separate tracks. This separation That sunset will allow Congress to make was seen as necessary because of the some needed adjustments, hopefully in a very different legal regimes that are asso- calmer climate, and strengthen the pro- ciated with domestic law enforcement tections for civil liberties without sacri- and foreign intelligence collection. The ficing security, events of September 11, which involved several individuals who had lived in our Section 216 country for some time, made it clear that The Patriot Act substantially changes the more cooperation between domestic law law with respect to law enforcement enforcement and foreign intelligence col- access to information about computer use lection was necessary. Section 203 facili- including Web surfing. Reaching for an tates this cooperation by allowing analogy from the old rotary dialed tele- foreign intelligence information gath- phone system, the Act extends provisions ered in criminal investigations by domes- written to authorize installation of pen reg- tic law enforcement to be shared with the isters and trap and trace devices, which intelligence community. In this manner, record outgoing and incoming phone section 203 enables the intelligence numbers, to authorize the installation of community access to critical information devices to record all computer routing, that might otherwise be unavailable. addressing, and signaling information. The The definition of foreign intelligence government can get this information with information contained in the Patriot Act a mere certification that the information is quite broad. Foreign intelligence is likely to be obtained is relevant to an defined to mean information relating to ongoing criminal investigation, the capabilities, intentions, or activities Today, with more than fifty million of foreign governments or elements U.S. households online, when more than thereof, foreign organizations, or foreign 1.4 billion e-mails change hands every persons or international terrorist activi- day, when computer users surf the Web ties. The definition goes on to specifical- and download files using phone lines, ly include information about a U.S. mobile devices, and cable modems, the person that concerns a foreign power or government can learn a tremendous foreign territory and relates to the amount of information about you from national defense or the security of the where you shop to what you read to United States or the conduct of the for- who your friends are through the use of eign affairs of the United States. The so-called transactional records. The sharing of such a broad range of infor- potential for abuse, for invasion of priva- rnation raises the specter of intelligence cy, and for profiling citizens is high. agencies, once again, collecting, profil- That's why it is disappointing that the ing, and potentially harassing U.S. per- authors of this provision settled for an sons engaged in lawful, First incredibly weak standard of judicial Amendment-protected activities. oversight. A better analogy might have Section 203 provides some protection been to the provision of the Electronic against abuse by requiring that when Communications Privacy Act governing information originates from grand juries access to the stored records of Internet or wiretaps, the attorney general must Human Rights Winter 2002

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