Senator Charles Schumer
313 Hart Senate Office Building
Washington, DC 20510-3202
Senator Hillary Rodham Clinton
476 Russell Senate Office Building
Washington, DC 20510-3002
Dear Senators Schumer and Clinton:
Re: S. 1615 “Federal-Local Information Sharing Partnership Act of 2001”
We are writing in regards to S. 1615, the “Federal-Local Information Sharing Partnership Act” (“Partnership Act”), which extends the reach of the “USA-PATRIOT Act” to give state and local governments access to the same foreign intelligence information as federal law enforcement agencies. The Act would also permit state and local law enforcement to receive confidential financial and educational records from federal agencies, and confidential visa information from the State Department. Since passage of the PATRIOT Act, federal intelligence and law enforcement agencies can easily share foreign intelligence information with each other.
While we support information sharing between the federal government and state and local police departments when agencies are working together to investigate or prevent terrorist activity, we encourage you to put in place limitations that would prevent the wholesale sharing of foreign intelligence information. We recommend two changes to the bill: First, only foreign intelligence information related to investigating or preventing acts of terrorism should be shared with state and local authorities. Next, the information should only be shared with the chief law enforcement officer of the state or local government and not with the chief executive officer.
Recent news reports indicate that the FBI is already sharing foreign intelligence information with state and local police, which may eliminate the need for this legislation. According to an article in the December 3 edition of USA Today :
The FBI has begun offering thousands of local police executives access to secret intelligence so they can help decide whether to alert the public to terrorism threats, top bureau official say. The unprecedented sharing of intelligence is aimed at improving a sometimes-tense relationship with local police, which complained about a lack of information from federal authorities during two nationwide terrorism alerts. Under the FBI’s plan, police chiefs, sheriffs and other local officials will get the same type of intelligence that Attorney General John Ashcroft used to issue the alerts on October 11 and October 29.
Given that the exchange between federal and state and local authorities is already taking place, it is unclear that this legislation is necessary.
Foreign intelligence information sharing should be limited to preventing or investigating acts of terrorism and the information should be shared with the chief law enforcement officer rather than the chief executive officer.
Foreign intelligence information includes information that concerns intelligence activities of foreign powers and their agents, and the national defense and security of the United States or the conduct of the foreign affairs of the United States. 50 U.S.C. 1801. The PATRIOT Act defined foreign intelligence information even more broadly than in the Foreign Intelligence Surveillance Act.1 Most foreign intelligence information that the Partnership Act would authorize federal authorities to share with state and local authorities is utterly irrelevant to the business of preventing acts of terrorism. Foreign intelligence information often consists of uncorroborated and unreliable rumor and innuendo. It can and often does include information about activities – primarily speech and associations – that are protected by the Constitution. There is an even greater possibility of violating someone’s privacy if the information is shared with state or local law enforcement because the local authorities are more likely to know personally the target of the surveillance.
Following revelations that federal intelligence agencies and local police departments had illegally investigated First Amendment activities, many localities adopted ordinances and regulations, or became subject to court-ordered consent decrees, that put some limits on surveillance of First Amendment activity and instead encouraged law enforcement agencies to focus their efforts on investigating crime. For example, the Guidelines for First Amendment Activities that govern the conduct of the San Francisco Police Department “permit police involvement in the exercise of [First Amendment] rights only to the extent necessary to provide for the legitimate needs of law enforcement in investigating criminal activity.”2 As another example, the Seattle ordinance governing police investigations permits the collection of information about a person’s political or religious associations, activities, beliefs or opinions only when the person is reasonably suspected of committing a crime when such information is relevant to the crime.3
Foreign intelligence information can also include information about a non-citizen’s immigration status. To encourage non-citizens to report crime without fear of immigration consequences, many cities and localities have adopted ordinances that prohibit police agencies from conducting investigations based on a person’s immigration status. For example, Los Angeles’ Special Order 40 provided that “undocumented alien status is not a matter for police action” and barred LAPD officers from “initiat[ing] police action with the objective of discovering the alien status of a person” and from arresting people for violating a federal law making illegal entry into the U.S. a crime under 8 U.S.C. Sec. 1325. Similarly, to encourage cooperation of non-citizens with local authorities, New York City Mayor Guiliani unsuccessfully attempted to challenge provisions of the 1996 immigration and welfare reform bills that prohibit state and local governments from barring their officials from exchanging information with the INS about a person’s immigration status.4
The USA PATRIOT Act expands information sharing between federal law enforcement and intelligence agencies that was curtailed in the mid-70’s to reduce the risk that the Central Intelligence Agency would spy upon and collect data on lawful American political activity protected by the First Amendment. By opening up the sharing of intelligence information with state and local law enforcement, the “Partnership Act” expands the potential risk that the intelligence information that is shared will be misused. It would allow state and local police departments to receive intelligence information that has nothing to do with the crimes they are charged with investigating. It would also result in the sharing of immigration-related information that would discourage the very cooperation that many local police departments have determined is essential to solving and interdicting crime. To address these concerns, we recommend the following changes.
Besides amending these four sections that directly address sharing foreign intelligence information, we also recommend deleting section 2 “authority to share grand jury information.” This section is unnecessary because state and local law enforcement can already obtain federal grand jury information. Federal Rule of Criminal Procedure 6(e)(3)(C)(IV) provides for information to be shared when permitted by a court at the request of the federal government to the state and local governments for the purpose of enforcing state and local laws. This provision strikes the appropriate balance between the privacy interests of grand jury targets and witnesses and the need to share information with state and local authorities.
Consumer credit reports and student information collected for the purpose of counter-terrorism investigations should not be used for other purposes at the state and local level.
Senate Bill 1615 is intended to enhance information sharing between federal, state and local agencies for the purpose of counter-terrorism investigations. Several provisions of the bill, however, allow the collection and use of consumer credit and student information at the state and local level beyond the purpose of the bill.
First, Section 5 would allow government agencies to share consumer credit report information with state and local law enforcement officials, but it does not explicitly limit the use of the information to counter-terrorism activities. Pursuant to provisions in the USA PATRIOT Act, government agencies are allowed to access personal credit information necessary for counter-terrorism investigations and intelligence activities. Section 5 of this bill would allow agencies to share such credit information with state and local officials “in the performance of the official duties of that official.” Law enforcement’s “official duties” go far beyond the limited purpose of counter-terrorism investigations. Sensitive credit information collected for the specific purpose of counter-terrorism should not be used for another purpose without a court order and probable cause.
Section 5 of the bill should be amended to read “? to assist the official who is to receive that information in the performance of official duties related to such investigation, activity, or analysis in the written certification.”
Second, individuals’ credit reports and student information should only be shared with law enforcement personnel who need the information to carry out a counter-terrorism investigation. Sections 5, 9 and 10 of the bill allow individuals who are not necessarily part of the law enforcement investigation, including mayors or suburban town managers, to access identifiable information in individuals’ credit histories and student records. Based on these provisions, mayors could read detailed credit histories and student records of town residents who are not even suspected of criminal activity. This is of special concern to people who live in small towns where everyone knows each other. Even if the mayor never misused the information about a person’s credit history, that person may simply not want the mayor to know such intimate details about his or life.
In Section 5, delete the clause “to law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision)” and replace it with “to the chief law enforcement officer of a State or political subdivision of a State”.
In Sections 9 and 10, delete the parenthetical beginning ” ? (including disclosure of the contents ?” . In Section 9 replace it with “(including the disclosure of the contents of those education records to the chief law enforcement officer of a State or political subdivision of a State)” and in Section 10 replace it with “(including the disclosure of the contents of those reports, records, and information to the chief law enforcement officer of a State or political subdivision of a State)”.
With these changes the Partnerships Act would authorize necessary and effective information sharing with state and local authorities without inadvertently undermining the important privacy and civil liberty objectives that shaped federal and state laws in this area. Thank you for your consideration of this important issue.
Sincerely,
Laura Murphy, Director
Washington National Office
Rachel King
Legislative Counsel
Katie Corrigan
Legislative Counsel
Irwin Schwartz, President
National Association of Criminal Defense Lawyers CC: Senate Judiciary Committee
ENDNOTES
1 – The PATRIOT Act defined foreign intelligence as:”(I) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against – (aa) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (bb) sabotage or international terrorism by a foreign power or an agent of a foreign power; (cc) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power; or (II) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to – (aa) the national defense or the security of the United States or (bb) the conduct of the foreign affairs of the United States.”
2 – General Order 8.10, p. 1 (August 3, 1994).
3 – Seattle Police Intelligence Ordinance No. 108333, 1979.
4 – Section 434 of the Personal Responsibility and Work Opportunity Act of 1996 (Pub. L 104-193) , and Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Pub. L. 104-208).
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