Patriot Debates

Her criticism was that, "over the objections of civil liberties groups and some Democratic senators", the Act fails to discriminate between information gathered between terrorist and non-terrorist investigations.

He also disagrees with Martin's assertion that information should be gated through a judge before being communicated to other agencies, stating that "if a federal prosecutor learned during grand jury testimony that terrorists were planning to detonate a bomb in Manhattan in the next 30 minutes, Federal Rule of Criminal Procedure 6(e) prevented him from immediately notifying national security officials not directly participating in the investigation."

Dinh believes that Congress had to balance the rights of citizens to privacy with the threat of a terrorist attack and that appropriate safeguards were implemented — whenever grand jury information is shared, the government is required to notify the supervising court and identify the departments that received it.

She also states that his "hypothetical grand jury testimony about a bomb in New York was anticipated by the Clinton Justice Department, whose Office of Legal Counsel opined in 1993 and 1997 that under then existing law, prosecutors would be free to disclose such information to national security officials even without prior judicial approval", She further reiterated that there is no reason why modest privacy safeguards should not be put into place.

Dempsey believes that the section lacks two important safeguards that are present in the corresponding legislation for criminal investigations: 1) that agents actually ascertain the location of the suspect before turning on their recording devices, and 2) that "some additional changes to FISA adopted outside of the normal process in the Intelligence Authorization Act a few months after the PATRIOT Act had the probably unintended effect of seeming to authorize "John Doe" roving taps – that is, FISA orders that identify neither the target nor the location of the interception.".

[6] Paul Rosenzweig disagreed with Dempsey's premise that "relaxation of the particularity requirement is constitutionally suspect" and believed that it colored his argument that section 206 should be modified.

He believes that the proposed ascertainment requirement would unnecessarily burden the ability of law enforcement and intelligence agents to perform surveillance on terrorist suspects.

Dempsey further stated that Rosenzweig did not really articulate why the ascertainment requirement would be particularly onerous to intelligence agencies and that "without additional safeguards, Section 206 roving tap orders are little different from the "general warrants" that the Fourth Amendment prohibits.

Dempsey disagreed with section 209, which made it no longer necessary for agencies to seize stored voicemail from a Title III wiretap order, because while he agree that it made the rules technology neutral (stored data does not require such an order) it unnecessarily overlooked the importance of notice under the Fourth Amendment and under Title III.

Dempsey ultimately believes that "rather than allowing growing amounts of personal information to fall outside the traditional protections of the Fourth Amendment, it is time to revisit the rules for networked storage (whether of voice or data) and bring them more in line with traditional Fourth Amendment principles, by requiring contemporaneous notice as the norm and covering both newer records and older records (again, whether voice or data) under the same probable cause standard".

Dempsey suggests several modifications to implement checks and balances into the section: make after-the-act judicial review mandatory, with the suppression of evidence which is not deemed to be properly justified; the mandatory disclosure to the person whose privacy has been invaded that their information has been provided to the government; and to "make it illegal for a government official to intentionally or recklessly mislead a service provider as to the existence of an emergency".

Dempsey agreed with EPIC's view of section 220, in that it would make it "more difficult for a distant service provider to appear before the issuing court and object to legal or procedural defects".

Thirdly, Congress introduced "needless delay" when they disallowed federal investigators from obtaining orders to compel information in one district and have them served on third parties in other districts - before section 220 was introduced Kerr gives the example of a New York-based investigator having to travel to California to compel an ISP to disclose information about a New York-based defendant.

Kerr argues that sections 209, 202 and 220 correct such defects in the ECPA and that "in all three cases, the Patriot Act attempts to bring the statutory surveillance law into alignment with the Fourth Amendment."

He believes that Dempsey's proposal to require after-the-act judicial review for exigent circumstances has no parallel in the Fourth Amendment; that allowing recipients of orders to challenge orders within the recipients own district would not follow "the traditional rule that any challenge (itself an extremely rare event) must be filed in the issuing district"; and that disclosure to the person whose electronic voicemail has been seized also has no such parallel in the Fourth Amendment, as while notice must be given to a home owner whose house is being searched this is not done to allow a challenge to the order but rather shows them that due legal process is being followed and that the search is not being conducted by a rogue agent — Kerr believes that "current law appears to satisfy this policy concern by providing notice to the ISP".

[12] Kerr agreed with much of what Dempsey's analysis of what the problem is, but that his "own view is that [they] can be best addressed in two ways: first, by adding a statutory suppression remedy to the Internet surveillance laws; and second, by bolstering some of the privacy protections for accessed communications under the Stored Communications Act"[13] Kerr believes that the right of government to access information about a person without notifying that person has not been a requirement for criminal investigations, and that "under current law, Internet users also have a narrow right to notice when the government seeks to obtain content records from an ISP with less than probable cause".

He ended the debate by saying Heather Mac Donald argues that section 213, which provides for the so-called "sneak and peek" provisions of the Patriot Act, is necessary because the temporary delay in notification of a search order stops terrorists from tipping off their counterparts that they are being investigated.

He also wonders why if sneak and peak orders are a "time-honored tool" used by courts for decades, then why it was necessary for the Justice Department to push to make section 213 applicable in all cases that such a measure is used.

Further, McCarthy argues that there are times when the FBI does not have any evidence to concretely prove that a person is involved in terrorism, but there are times when they have reason to believe that the individual or group are planning on or actually committing acts of terrorism — he cites the example of the FBI's investigation into Zacharias Moussaoui before the September 11 terrorist attacks; Moussaoui's flight school behavior aroused suspicion but there was no specific evidence to link him to terrorist activity.

On section 214, McCarthy believes that the pre-Patriot Act version of FISA, which required government agencies to "certify that the monitored communications would likely be those either of an international terrorist or spy involved in a violation of U.S. criminal law, or of an agent of a foreign power involved in terrorism or espionage" was "an unnecessary and imprudently high hurdle" as pen registers and wiretaps do not violate the Fourth Amendment.

In response to McCarthy's comment that "one must address the theater over library records, risibly evoking visions of DOJ Thought Police monitoring, and thus chilling, the reading preferences of Americans", Swire counters that "the debate about access to library records has been important as a symbol of possible over-reaching in government surveillance, much as the Patriot Act itself has become a symbol of that concern".

Swire recommends that the gag order be removed, but failing this it should be time limited and eventually revealed, and perhaps make the fact of a search announceable, but disallow the naming of the suspect.

On section 214, he simply states that "In 2000, the House Judiciary Committee voted overwhelmingly to raise the standard for a pen register order from "any authorized investigation" to "specific and articulable facts."

Secondly, McCarthy argues that government officials should not be hampered in their jobs, because "when government's hands are tied out of a hyper-fear of corrupt behavior, the only hands being tied belong to the honest people — the occasional rogue will be a rogue no matter what the rules are"; he also believes that there is not enough time or resources for Watergate-style abuses, he says "the executive branch knows that history as does the congress [and m]indful of it, they perform and oversee."

Finally, McCarthy believes that the proposed changes by Swires would "merely chase investigations into the criminal justice system where none of the oversight mechanisms inherent in Section 215 exist".

[24] David D. Cole argued that the changes to the law were unnecessary, and accused the proponents of the USA PATRIOT Act of "[being] equally guilty of propagating competing myths in this debate, nowhere more so than with respect to Section 218 and the "wall."

He agrees that the wall was not required by FISA, and maintains that section 218 was not sufficient to reduce barriers between information sharing amongst agencies — this, he says, was and remains a bureaucratic issue and not a statutory one.

In McCarthy's mind, Cole's objection to FISA is that he believes, incorrectly, that under the Fourth Amendment searches are "inappropriate absent probable cause of a crime".

McCarthy says Cole's "suggestion that a 'foreign power' under FISA could be any 'political organization' comprised predominantly of non-citizens is overwrought", and that only those organisations proven to be engaged in clandestine operations will be targeted.

Without that clarification of law, the disastrous primary purpose doctrine would be undisturbed, the unnecessary wall would still be in place, dots would remain unconnected, prosecutions like al-Arian would not have occurred, and the United States would be at considerably greater risk.