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Congress is Losing its Chance to Reform the Patriot Act

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October 7, 2009

(Originally posted on Huffington Post.)

Tomorrow the Senate Judiciary Committee will continue its debate over a bill that reauthorizes three Patriot Act provisions due to expire on December 31. The bill, The USA PATRIOT Act Sunset Extension Act, includes minor tweaks to the Patriot Act but does not go nearly far enough to thoroughly protect the Fourth Amendment rights of Americans.

The Patriot Act is a reactionary law. It was passed 45 days after 9/11 with virtually no debate and granted the government sweeping surveillance powers including the ability to conduct secret searches of Americans’ homes without warrants or even the presence of the resident.

Easily one of the most dangerous powers handed over in the Patriot Act was the expansion of the National Security Letters (NSL) statute which allows the government to demand a huge variety of our information (medical records, tax records, books we borrow from the library, etc.) from recipients like Internet service providers (ISP), financial institutions, and libraries without any proper judicial oversight. Oh, and it contains a gag order for recipients. The Department of Justice Office of the Inspector General has released two consecutive reports in the last several years detailing the FBI’s flagrant and systemic misuse of the NSL statute.

In 2004, the ACLU filed a lawsuit, now called Doe v. Holder, on behalf of an ISP that the FBI served with an NSL. A lower court ruled in 2007 that the gag order provisions were unconstitutional, and the U.S. Court of Appeals for the Second Circuit upheld that ruling in 2008. However, the FBI continues to enforce the gag order on the ISP even though the underlying investigation is more than five years old and even though the FBI abandoned its demand for records from the ISP more than three years ago. By continuing to unconstitutionally enforce its five-year-old gag order on a John Doe NSL recipient and his ACLU attorneys, the FBI is suppressing key information that could help inform the ongoing congressional debate about the need to reform the NSL statute.

Back to the Senate Judiciary Committee – the bill being debated is a ‘compromise’ bill offered by Chairman Patrick Leahy (D-VT) and Senator Dianne Feinstein (D-CA) and is not the bill the ACLU was hoping for. We endorsed a bill introduced by Senators Russell Feingold (D-WI) and Richard Durbin (D-IL) called the JUSTICE Act, which would have inserted rigorous civil liberties safeguards into the Patriot Act as well as several other overly broad surveillance laws including the FISA Amendments Act. You can see how the USA PATRIOT Act Sunset Extension Act stacks up against the current law and the JUSTICE Act here.

During tomorrow’s continued debate, Senators Feingold and Durbin are seeking to have JUSTICE Act provisions – most importantly NSL provisions – added as amendments to the committee’s base bill. Last week the Senators succeeded in adding language that would shorten the time period on the “sneak and peek” provision, (you can thank Senator Feingold for introducing the amendment by tweeting a message here and Senator Arlen Specter (D-PA) for voting for it by tweeting a message here).

As we approach the committee’s vote tomorrow, there’s still time for you to contact your Senators’ offices urging them to vote to add any JUSTICE Act amendments to the bill next markup. It’s crucial that you reach out to these key Senators and urge them to protect the privacy of all Americans by voting for additional amendments that would rein in the NSL authority. Specifically, these Senators voted against modest privacy protections last week and need to hear from you: Senators Patrick Leahy (D-VT), Herb Kohl (D-WI), Dianne Feinstein (D-CA), Charles Schumer (D-NY), Edward Kaufman (D-DE), Amy Klobuchar (D-MN), Al Franken (D-MN) and Sheldon Whitehouse (D-RI). Clearly, these Senators need to hear that we are watching and very interested in protecting our Fourth Amendment rights. Senators Specter and Cardin (D-MD) also deserve a call thanking them for supporting Senator Feingold’s important amendment last Thursday. Urge them to keep supporting the Constitution.

Real Patriot Act reform can be realized as long as we all stay engaged, focused and vigilant. Get dialing, America!

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