RE: USA PATRIOT Act amendments on SSCJ appropriations bill
Vote YES on Sanders privacy of library/bookstore records
Vote YES on Nadler privacy of health insurance records
Vote YES on Otter limits on secret searches of homes and offices
Dear Representative:
On behalf of the American Civil Liberties Union and its more than 400,000 members, we urge you to vote in favor of amendments to restore checks and balances to Patriot Act powers. These amendments may be offered during floor consideration today of H.R. 2862, the Science, the Departments of State, Commerce and Justice and Related Agencies Appropriations Act for Fiscal Year 2006.
Sanders amendment on library and bookstore records. We urge you to vote for an amendment to make obtaining certain library and bookstore records subject to a higher standard. Under section 215 of the Patriot Act, these records can be obtained with a secret order from a secret court on a standard that compels the judge to issue the order with a mere certification from the Justice Department that they are needed for an intelligence investigation. Section 215 orders are subject to an automatic, permanent gag provision that prevents a recipient from ever disclosing to anyone that the recipient has received the order and contain no statutory right to challenge the order in court. Deputy Attorney General Comey testified before the House Permanent Select Committee on Intelligence that such an order would only be used in case where there is no ""criminal hook"" for obtaining the records - that is, where there is no reasonable indication of any criminal activity, such as terrorism, that would support using ordinary powers such as a grand jury subpoena. The only protection is that the investigation cannot be based solely on First Amendment activity - an entirely inadequate standard. While the section 215 search power can and should be reformed generally, the current power to obtain library and bookstore records should be limited because of the sensitive nature of these First Amendment-protected records.[1]
Nadler amendment on insurance company records. We also urge you to vote for an amendment to exempt private health insurance records from another intrusive records gathering power exercised with ""national security letters"" (NSLs). These NSLs can be issued by the FBI for intelligence gathering purposes to obtain records about a customer of so-called ""financial institutions"" with no approval by a court or grand jury and without any indication of criminal activity. 12 U.S.C. § 3414. Insurance companies are now included as ""financial institutions"" under an expanded definition of the term that was quietly slipped into section 374 of the 2004 Intelligence Authorization Act. 31 U.S.C. § 5312(a)(2)(M). Because ""financial records"" are simply defined as any records about a customer held by a ""financial institution,"" 12 U.S.C. § 3401(2), the inclusion of insurance companies as financial institutions exposes private health insurance records to the NSL power. As expanded by section 505 of the Patriot Act, NSLs require no certification of individual suspicion. They also contain a permanent gag order and there is no right to challenge in the statute. In Doe v. Ashcroft, a federal district court found that, as amended by the Patriot Act, a very similar statute that allows NSL access to certain Internet Service Provider (ISP) records was unconstitutional. While the standards and process for issuing NSLs can and should be reformed generally, the current power is overbroad and unconstitutional, and does not protect the privacy of sensitive records, including private health insurance records.
Otter amendment on secret searches of homes and offices. We urge you to vote for an amendment to reform the standards for secret searches of homes and offices, using ""sneak and peek"" warrants reviewed by a judge under the vague standards provided by section 213 of the Patriot Act. Section 213 is not limited to terror cases, and it allows secret searches with a delay of the notice of the search for an indefinite ""reasonable time."" Section 213 went too far, because it removed a presumptive seven-day limit on delays that some courts had required and because the ""catch-all"" provision - allowing a secret search any time notice would seriously jeopardize an investigation or unduly delay a trial - provides little guidance to courts about when a secret search is permissible. Testimony has indicated that this expanded power is used primarily in non-terrorism cases. The Otter amendment would allow secret searches, but only for specific reasons such as endangering life or physical safety, causing a suspect to flee prosecution, destruction of evidence, or witness intimidation. The amendment would also limit any the initial period of delay to no more than seven days, and would allow extensions for additional, but short, periods of time, as required by the Fourth Amendment.
We thank you for your consideration of our views.
Sincerely,
Gregory T. Nojeim
Acting Director
Washington Legislative Office
Timothy H. Edgar
National Security Policy Counsel
Lisa Graves
Senior Counsel for Legislative Strategy
Footnote
[1] The ACLU also supports a number of changes to Section 215 of the Patriot Act, and testified to that effect on April 28 at the hearing before the House Judiciary Committee Subcommittee on Crime, Terrorism and Homeland Security. We asked that the Judiciary Committee adopt legislation to time limit the gag, permit a recipient of a Section 215 order to challenge it in court and consult with an attorney about it, and to ensure that the records that would be subject to a Section 215 order pertain to an agent of a foreign power. The statement of ACLU Acting Director Gregory T. Nojeim at the hearing that ACLU was not asking at that hearing for any particular action with respect to libraries reflects our position that a more comprehensive effort to add checks and balances to the statute should be made by the Judiciary Committee, and we are working in a bipartisan manner to secure those changes at an expected mark-up next week.