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Must we renew the Patriot Act?

CNET's Declan McCullagh wonders how taxes and drug testing relate to catching terrorists.

What do mandatory drug testing, cigarette taxes and methamphetamine restrictions have to do with protecting America from terrorists?

As far as I can tell, the answer is "nothing." But they nevertheless appear in a 219-page proposed law to renew the Patriot Act that Republicans have scheduled for a vote this week.

A fraction--a mere 16 sections--of the Patriot Act's awesome surveillance powers expire Dec. 31. They expanded secret methods the FBI can use to obtain business records; authorized more information sharing between Internet providers and police; and listed computer hacking as an offense permitting increased eavesdropping.

The Bush administration and congressional Republicans spent last week arguing that speedy approval of the larded-up "conference report" (click for PDF) was necessary to keep America safe. Attorney General Alberto Gonzales said, "I urge both houses of Congress to act promptly to pass this critical piece of legislation."

The bill will do little to stop an FBI that, according to previously classified documents, has spied on U.S. residents without authorization.

But what Gonzales didn't say was that the conference report has become a political version of a Christmas tree: It's ornamented with dozens of senators' pet projects. The result is a structure so weighty with irrelevant amendments it's nearly twice the size of the original Patriot Act.

Some bizarre (and some relevant) examples follow. The conference report:

• Reduces the amount of contraband cigarettes that qualifies as a federal crime. The number drops from 60,000 cigarettes to 10,000.

• Creates a new federal crime of photographing or videotaping bridges, garages, tracks, warehouses, or other facilities used by railroads, boats, or airplanes--if such recordings were made with the intent of doing harm. Anyone attacking anyone else near such facilities with a weapon--the list includes "a pocket knife with a blade of less than 2 1⁄2 inches in length and a box cutter"--can be punished with stiff prison terms and even the death penalty.

• Increases electronic surveillance of visitors and tourists by ditching a requirement that a surveillance target must be an agent of a "foreign power." Extends electronic monitoring of visitors' and tourists' Internet activities and telephone dialing habits from 90 days to one year.

• Boosts criminal penalties: Possessing methamphetamine for distribution to a minor yields a prison term of up to 20 years. Requires a "feasibility study" of a new federal drug court, and funds mandatory drug testing.

• Increases criminal penalties for smuggling goods into the U.S. from five years to 20 years, and creates an additional crime of exporting them.

• Expands what information the FBI can obtain using a Foreign Intelligence Surveillance Act (FISA) court order asking for telephone or Internet activity. It stresses that the recipient must divulge "any temporarily assigned network address or associated routing or transmission information."

Minor changes to surveillance
Some sections are more relevant to terrorism and FBI oversight. The conference report:

• Requires the Justice Department to prepare a report on its use of "pattern-based data-mining technology"--including how effective the system is and its likely impact on privacy and civil liberties. That requirement does not apply to the Defense Department, which created the Total Information Awareness project.

It's become a political version of a Christmas tree--ornamented with dozens of senators' pet projects.

• Says that only senior FBI officials may request secret FISA orders for certain types of business records. To obtain library patron lists, book sales records, and medical records, rank-and-file FBI agents would need high-level approval.

• Continues to authorize secret search warrants that let police enter your house and leave without notifying you. Notice could still be delayed indefinitely, but Congress would begin to receive an annual report on how many secret searches take place.

• Permits recipients of a "national security letter" demanding documents to "petition" a federal court for permission to talk about it. But there's a long list of conditions that would require a judge to deny the request.

• Lets recipients of a national security letter consult with an attorney. Currently they can't, which has caused one federal judge to conclude that that section of the Patriot Act is unconstitutional.

Limited reforms
Increasing oversight of often-unaccountable police agencies is a welcome development, but the preparation of a few reports must not be confused with meaningful reform.

The conference report will do little to stop an FBI that, according to previously classified documents (click for PDF), has spied on U.S. residents without authorization. Incidents have included obtaining e-mail messages after a warrant expired and conducting an improper physical search.

Nor will the proposed legislation fix the way national security letters (NSLs) are secretly employed to obtain business records on Americans. In addition to credit records and financial information, NSLs let the FBI obtain a list of all Web sites a person visits, a list of a person's e-mail and instant messaging correspondents and other subscriber records.

An article in The Washington Post last month said that the FBI's use of NSLs has leaped a hundredfold in the last few years, with more than 30,000 issued annually. Domestic surveillance of Americans is "exponentially growing," the article said, and it recounted how NSLs were even used to obtain data on library patrons' Web browsing habits.

As the Dec. 31 deadline nears, watch the White House and Republicans crank up the pressure on wavering Senate Democrats.

Fortunately, most Democrats, and a handful of Republican dissenters, are objecting to the legislation and are demanding substantive changes. Some, like Russ Feingold, a Wisconsin Democrat, are even threatening a filibuster.

Whether Feingold can muster the votes to carry it off is an open question. But it would be fascinating to watch the Bush administration explain why laws involving cigarette taxes, methamphetamine possession, and pocket knives are necessary to protect America in the War on Terror.