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Sent: 27 April 2005 17:01
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Subject: CDT Policy Post 11.09: SAFE Act Would Control PATRIOT Powers
CDT POLICY POST Volume 11, Number 9, April 26, 2005
A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology
(1) SAFE Act Would Control PATRIOT Powers
(2) Take Action - Support the SAFE Act
(3) SAFE Act Adds Much Needed Checks and Balances to PATRIOT Act
(4) Congress Begins Hearings on PATRIOT Reauthorization
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(1) SAFE Act Would Control PATRIOT Powers
Members of the House and Senate have introduced the bi-partisan SAFE
Act, which would establish reasonable checks and balances for the
surveillance powers of the USA PATRIOT Act, including sneak and peek
searches, roving taps, and access to business records. CDT supports
the SAFE Act and encourages all concerned citizens to call their
representatives in Congress and urge them to co-sponsor the
legislation.
Congress has begun hearings on the PATRIOT Act, some provisions of
which "sunset" on December 31, 2005 unless reauthorized by Congress.
The SAFE Act would preserve all the investigative powers of the
PATRIOT Act, but would seek to prevent overreaching with clear
standards and judicial and Congressional oversight and public
reporting.
A SAFE Act was introduced last Congress (2003-04), but was never
considered. This year, since Congress must revisit the PATRIOT Act,
the SAFE Act is the focus of pro-civil liberties efforts to establish
the checks and balances that were left behind in the rush to adopt
the PATRIOT Act.
The Senate version of the SAFE Act is S. 737, introduced on April 5,
2005 by Sens. Larry Craig (R-ID) and Richard Durbin (D-IL). The House
version is H.R. 1526, introduced by Rep. Butch Otter (R-ID) and now
cosponsored by 29 Members.
For more information on the SAFE Act: http://www.cdt.org/legislation/109/4
"The PATRIOT Act Debates:" Short pro and con essays by CDT and other
experts on PATRIOT Act provisions: http://www.patriotdebates.com
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(2) Take Action - Support the SAFE Act
All persons concerned about government surveillance should call their
Senators and their Representative to explain why powers like those in
the PATRIOT Act, while important to preventing terrorism, should be
subject to checks and balances to prevent abuse.
Also citizens can raise concerns about the PATRIOT Act at town hall
meetings and at other public events that Members of Congress hold
back in their districts.
Personal contact is very important. Make your voice heard!
To find out more about how you can support SAFE, go to CDT's Action
page at http://www.cdt.org/action/
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(3) SAFE Act Adds Much Needed Checks and Balances to PATRIOT Act
Few Members of Congress believe that the PATRIOT Act should totally
sunset. Instead, the focus of debate is on criteria for applying the
Act's powers and on oversight and accountability.
The SAFE Act retains all of the powers authorized under the PATRIOT
Act, but places reasonable limits on them. It achieves a balance
between preserving civil liberties and ensuring that law enforcement
and intelligence agencies have the powers they need to combat
terrorism.
The SAFE Act makes the following revisions to the PATRIOT Act:
- The PATRIOT Act authorized roving wiretaps for intelligence
agencies, authorizing them to obtain a court order to follow a
suspected terrorist and tap any phone or computer he uses. Later
changes made it possible to obtain a roving wiretap order without
identifying either the person or the place to be tapped. The SAFE Act
would allow roving wiretaps, but would require the government to
identify to the court either the person or the place to be
surveilled. The SAFE Act also requires government agents to ascertain
what phone or computer a target is using before turning on the tap.
- "Sneak and peek searches" are court-approved, but are conducted
surreptitiously. Under this procedure, notice of the search, normally
provided at the time of the search, is delayed. The PATRIOT Act
authorized these searches for ordinary crimes having nothing to do
with terrorism. The SAFE Act would limit the circumstances in which
law enforcement could conduct "sneak and peek searches" to those
truly serious cases and would require notice within seven days
(subject to further extension upon a showing of need).
- One of the most controversial provisions of the PATRIOT Act allows
the FBI to obtain a court order forcing disclosure of any business
records without a factual showing of need and without even naming the
subject of interest. The SAFE Act would require the FBI to show facts
indicating a reason to believe the records it sought relate to a
suspected terrorist or spy. The SAFE Act also would give the
recipient of the order the right to challenge both the order and the
gag order that accompanies it.
- The SAFE Act would establish similar safeguards for "National
Security Letters," which the FBI can use without court approval to
obtain certain categories of business records.
- In terms of the pen register and trap and trace authority for
acquiring transactional records (showing who is communicating with
whom through the telephone or computer networks), the SAFE Act would
require the government to (1) show that its application is supported
by facts; (2) report to Congress on use of the technique; and (3)
provide delayed notice to individuals who are targets.
- The SAFE Act would limit the definition of "domestic terrorism" to
those offenses covered by the federal crime of terrorism, instead of
any federal or state crime, as is currently the case.
- The SAFE Act also would require increased public reporting of the
use of intelligence wiretaps.
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(4) Congress Begins Hearings on PATRIOT Reauthorization
The House Judiciary Committee has begun an in-depth series of
hearings on PATRIOT, and the Senate Intelligence Committee held an
open hearing on April 19. The Senate Judiciary Committee heard from
Administration defenders of the Act on April 5 and will hold a full
committee hearing with critics of the Act in early May.
House Judiciary Subcommittee hearing, April 21, 2005:
- CDT testimony on PATRIOT Act, Privacy and Technology, April 21,
2005 http://www.cdt.org/testimony/20050421dempsey.pdf
- Statements of other witnesses, April 21, 2005
http://judiciary.house.gov/Oversight.aspx?ID=144
- Audio of full hearing, April 21, 2005
http://www.cdt.org/publications/vpp/20050421fullpatriothearing.mp3
Senate Intelligence Committee hearing, April 19, 2005:
- CDT Testimony on PATRIOT Act, April 19, 2005
http://www.cdt.org/testimony/20050419dempsey.pdf
- Committee webpage with statements of other witnesses April 19,
2005 http://intelligence.senate.gov/0504hrg/050419/witness.htm
- Audio of April 19 CDT testimony, April 19, 2005
http://www.cdt.org/publications/vpp/20050419dempsey.mp3
- Senate Judiciary Committee hearing, April 5, 2005:
http://judiciary.senate.gov/hearing.cfm?id=1439
- Letter urging Congress to take a broader look at civil liberties
violations, April 18, 2005
http://www.cdt.org/security/usapatriot/20050418letter.pdf
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Detailed information about online civil liberties issues may be found at
http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/policyposts/2005/9
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 11.09 Copyright 2005 Center for Democracy and Technology
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