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Don't Let Them Dress Up a Pig

The latest proposals to the Patriot Act would still allow the government to get all sorts of personal records.
Tim Edgar,
Washington Legislative Office
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November 17, 2005

Today the Administration’s grand plan to make virtually all of the Patriot Act permanent — and extend some of the most contentious provisions for seven years — hit, shall we say, a snag.

Last night, some Senators tried to trumpet yesterday’s tentative deal citing “MAJOR CHANGES” to protect our privacy. Today that claim ran into a huge brick wall called reality.

Some of the changes are too cute by half. The latest proposals would still allow the government to get all sorts of personal records via “national security letters,” or NSLs for short. NSLs are just pieces of paper that the FBI can issue without any court involvement at all, demanding records from “financial institutions,” which are defined so broadly they include businesses like casinos, boat dealerships and pawnbrokers.

Some Patriot Act supporters thought they could pull a fast one with NSLs, proposing a “fix” that would generously allow you to file a challenge to the NSL’s secrecy provision. One little hitch: The government would also get a new power to block the challenge by “certifying” to the court that lifting the your gag would threaten national security, or interfere with diplomatic relations or a criminal investigation. The court is not even allowed to look at whether their claim is true. It is required to accept the government’s certification as “conclusive.”

The current proposal would also make it a federal crime to intentionally disclose an NSL. If you go to your local newspaper to protest a government fishing expedition, you could be facing hard time. Even a a reporter writing about it could face a Hobson’s choice — go to jail or reveal their source.

These provisions are hardly fixes. But supporters of the deal genuinely thought they would be able to dress this pig up, put some lipstick on it, and bring it to the ball. It didn’t work. Not only the ACLU, but our allies across the political spectrum — all the privacy groups, Bob Barr, and the many conservative and libertarian groups that have joined with us and said “No way.”

More importantly, Republican and Democratic senators — including leaders like Russ Feingold (D-WI), John Sununu (R-NH), Dick Durbin (D-MI) and Larry Craig (R-ID) have called the deal “unacceptable.” They’re using fighting words — saying that, if the bill doesn’t get fixed, they are prepared to filibuster.

So we’re still in the game. The report that triggered a floor vote was due to have been filed on Monday, and here we are on Thursday and guess what?

There’s a window right now, and we know lots of folks are calling and letting their member of Congress and Senators know that this deal is not OK. This is the most crucial time for members to be hearing from their constituents — so lets tell them how we feel.

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