ACLU Asks Court to Order Government to Account for its Use of Vast New Surveillance Powers

October 24, 2002 12:00 am

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NEW YORK-The American Civil Liberties Union today filed a Freedom of Information Act lawsuit asking a federal court to order the Department of Justice to account for its use of the extraordinary new surveillance powers granted to it by Congress last year.

“The Justice Department conceded in early September that the information is of exceeding importance to the American public, but it nonetheless continues to stonewall,” said Jameel Jaffer, an attorney with the ACLU’s Technology and Liberty Program.

The records requested concern the government’s implementation of the USA PATRIOT Act, legislation that was passed in the wake of the September 11 terrorist attacks. By amending laws such as the Foreign Intelligence Surveillance Act (FISA), USA PATRIOT vastly expands the government’s authority to obtain personal information about those living in the United States, including United States citizens.

In a letter to the ACLU dated Sept. 3, the Justice Department agreed to respond to the FOIA request speedily, acknowledging that the request concerned “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” The FBI made similar promises. Yet to date, Jaffer said, neither agency has disclosed any records in response to the ACLU request nor stated which records, if any, it is going to disclose.

The ACLU and the Electronic Privacy Information Center filed the lawsuit as attorneys for their organizations and for the American Booksellers Foundation for Free Expression and the Freedom to Read Foundation, citing concerns that the new surveillance laws threaten the First Amendment-protected activities of librarians, library patrons, booksellers and their customers, and investigative journalists.

The FOIA request, which was filed on August 21, seeks general information about the use of new surveillance powers, including the number of times the government has:

  • Directed a library, bookstore or newspaper to produce “tangible things,” e.g, the titles of books an individual has purchased or borrowed or the identity of individuals who have purchased or borrowed certain books;
  • Initiated surveillance of Americans under the expanded Foreign Intelligence Surveillance Act;
  • Conducted “sneak and peek” searches, which allow law enforcement to enter people’s homes and search their belongings without informing them until long after;
  • Authorized the use of devices to trace the telephone calls or e-mails of people who are not suspected of any crime;
  • Investigated American citizens or permanent legal residents on the basis of activities protected by the First Amendment (e.g., writing a letter to the editor or attending a rally).

Some of the information was previously sought by the House Judiciary Committee, and last week Rep. James Sensenbrenner, Jr., (R-WI), the Chairman of the Committee, reported that he had received some of the information in classified form. The ACLU said that the government is using its classified stamp too broadly and that the public is entitled to know, at least in general terms, what the government’s policies are.

David Sobel, General Counsel to the Electronic Privacy Information Center, emphasized that the FOIA request does not seek any information that could compromise a terrorism investigation. “Much of the information that the Justice Department claims is classified consists of statistical information whose release could not possibly endanger national security or any other legitimate government interest,” he said.

In related litigation, the ACLU and other groups last month filed a friend-of-the-court brief urging a secret Foreign Intelligence Surveillance Act appeals court to reject the Justice Department’s radical bid for broadly expanded powers to spy on U.S. citizens. A decision from the FISA Court of Review is expected soon.

The attorneys in the case are Jaffer and Ann Beeson of the national ACLU’s Technology and Liberty Program, Sobel of the Electronic Privacy Information Center and Arthur B. Spitzer of the ACLU of the National Capital Area.

The ACLU’s legal papers filed today are online at: /privacy/spying/15424prs20021024.html

FAQ on Section 215 of the USA PATRIOT Act is online at:

For more information on the FOIA action, including links to the original request, go to /privacy/spying/14820prs20020821.html

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