Feds uncloak the Patriot Act

As debate begins on portions of the law set to expire, officials summarize how the "sneak and peek" provision has been used.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
7 min read
More information is dribbling out about the exercise of extraordinary powers granted to federal police nearly four years ago as part of the war on terror.

As the Bush administration this week called on Congress to expand the USA Patriot Act, it disclosed how two of the most controversial sections of the law have been wielded by police.

Police invoked the Patriot Act when surreptitiously entering and searching a home or office without notifying the owner 108 times during a 22-month period, according to a one-page summary released by the Justice Department late Monday. On Tuesday, U.S. Attorney General Alberto Gonzales told the Senate that police have employed secret court orders to obtain records 35 times so far.


What's new:
As the Bush administration this week called on Congress to expand the Patriot Act, it disclosed that the section of the law permitting police to surreptitiously enter and search a home or office without notifying the owner has reportedly been used 108 times during a 22-month period.

Bottom line:
Because the Patriot Act has scores of sections, some politicians say that even more disclosure is needed during the congressional review of the law.

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But because the Patriot Act has scores of sections--only 16 are set to expire on Dec. 31--some politicians are saying that even more disclosure is needed during the congressional review of the law over the next few months.

"We have heard over and over again that there have been no abuses as a result of the Patriot Act," Sen. Patrick Leahy, a Democrat from Vermont, said during a hearing Tuesday. "But it is difficult, if not impossible, to verify that claim when some of the most controversial surveillance powers in the Patriot Act operate under a cloak of secrecy."

Increased calls for openness come as the Bush administration has taken unprecedented steps to limit public scrutiny of the executive branch. The number of classified documents has jumped since 2001, Freedom of Information Act disclosures have been curbed, and the wall of secrecy surrounding the Guantanamo Bay detention camp has drawn international condemnation. Open-government watchdog OMB Watch has said that Bush has "vastly expanded the zone of secrecy that surrounds the White House and most of the federal government."

Even though the Patriot Act was approved by overwhelming majorities in both chambers of Congress in the month after the Sept. 11, 2001 attacks, some legislators voted for the measure with the understanding that key portions would be revisited in 2005. This week, the Senate and the House of Representatives are kicking off what promises to be a tumultuous series of hearings on the topic.

Both Gonzales and FBI Director Robert Mueller on Tuesday warned the Senate that the expiring portions of the law must be renewed. Even though Gonzales said he was "open to any ideas that may be offered for improving these provisions," he stressed that any changes should be modest.

Mueller adopted a more aggressive tone, arguing that without the

expiring portions of the law, the FBI will be forced "to fight the war on terror with one hand tied behind our backs." He also called on Congress to expand the Patriot Act, saying that the subpoena power of the FBI should be expanded to "provide the government with an enforcement mechanism which currently does not exist."

While the FBI and the Department of Homeland Security have provided anecdotal information about the law's use, some politicians have grown frustrated with the lack of detailed information.

Shrinking Patriot Act?

Most of the Patriot Act will not automatically expire. A sampling of the 16 sections that are scheduled to disappear on Dec. 31:

Sec. 202: Computer hacking is a "predicate offense" permitting police to seek certain types of wiretaps.

Sec. 203: Federal police can share information gleaned from a wiretap or a Carnivore-like surveillance device with spy agencies. Previously there was no explicit authorization for such data sharing.

Sec. 212: Internet providers and other communications services can divulge information to police more readily. Customer records and other data may be legally handed over to police in an emergency.

Sec. 215: secret court orders can be used to obtain records or "tangible items" from any person or organization if the FBI claims a link to terrorism. The unlucky recipient of the secret order is gagged; disclosing its existence is punished by a prison term. Librarians are especially concerned.

Sec. 217: Computer service providers may eavesdrop on electronic trespassers legally. Police can be authorized to "listen in" on what's happening on the provider's network.

An analysis (PDF file) released by Sen. Jon Kyl, an Arizona Republican, last month said: "Requests to the Department of Justice to provide a comprehensive report assessing the effect and efficacy of the 16 provisions of the Patriot Act subject to 'sunset' remain unfulfilled. Such a report is a critical element in (Congress') responsibility to provide meaningful oversight before determining whether to change the law with respect to these provisions."

"The lack of information on how the Patriot Act provisions that expanded investigative authority are being used makes it very difficult to understand whether they're necessary or whether they're being abused," said Marcia Hofmann, an attorney at the Electronic Privacy Information Center, who filed a freedom of information request with the FBI last month seeking those figures.

One portion of the Patriot Act that does not expire lets police surreptitiously enter and search a home or office without notifying the owner. That has reportedly been invoked 108 times during a 22-month period stretching from October 2001 through April 2003.

"Delayed-notification search warrants are used in a wide spectrum of criminal investigations, including those involving terrorism and drugs," the Justice Department said in a statement. "Like any other search warrant, delayed-notification warrants under section 213 may only be issued after showing probable cause and obtaining the express approval of a judge."

Section 213 of the Patriot Act authorizes so-called sneak-and-peek entries in cases where alerting someone that a surreptitious search took place may have an "adverse result" on a police investigation. Eventually the owner of the home or office is supposed to be notified, though the law says that deadline can be "extended" without limit if police make a good case for it. Sec. 213 is not scheduled to expire.

Even though the Patriot Act was enacted as a response to the threat of terrorism, Section 213's powers are not limited to investigations of terrorists or spies. Instead, sneak-and-peak searches may be used to

investigate any federal felony or misdemeanor, from firearms violations to marijuana possession and copyright infringement.

Sneak-and-peek searches were used before the Patriot Acst, but their legality was less clear. One case involved the FBI surreptitiously entering the office of an alleged mobster to implant a keylogger that recorded his PGP (Pretty Good Privacy) passphrase.

In a related 1979 case called Dalia v. United States, a majority of the U.S. Supreme Court ruled that police could secretly break into an office to plant a bugging device and then return several weeks later to remove it.

In a dissent, Justice John Paul Stevens wrote: "Until Congress has stated otherwise, our duty to protect the rights of the individual should hold sway over the interest in more effective law enforcement." William Brennan and Thurgood Marshall joined the dissent.

Librarians up in arms
A section of the Patriot Act that does expire authorizes secret court orders to obtain records or "tangible items" from any person or organization if the FBI claims a link to terrorism. Disclosing the existence of the order is prohibited.

Librarians have been especially worried about receiving a Section 215 order. The American Library Association approved a resolution in 2003 that says portions of the Patriot Act "threaten civil rights and liberties guaranteed under the U.S. Constitution and Bill of Rights." (There's even an amend-section-215 Web site called ReaderPrivacy.com.)

Section 215 "has only been used to obtain driver's license records, public accommodations records, apartment-leasing records, credit card records, and subscriber information" maintained by telephone companies or Internet providers, the Justice Department said Tuesday. "The department has not obtained a section 215 order for library or bookstore records, medical records, or gun sale records."

"The administration is taking claims of secrecy to new extremes," said Greg Nojeim, associate director of the American Civil Liberties Union's Washington office. "The use of this power could be disclosed regularly without any damage to national security." (The federal government discloses non-Patriot Act wiretap statistics every year.)

The Bush administration generally has defended such measures as necessary to wage a new kind of global campaign against loosely organized terrorist organizations. In a speech last month, Gonzales said: "Without security, government cannot deliver, nor can the people enjoy, the prosperity and opportunities that flow from freedom and democracy."

A coalition of liberal, conservative and libertarian groups called Patriots to Restore Checks and Balances is backing efforts to scale back the Patriot Act. Its members include the ACLU, the American Conservative Union, Gun Owners of America and the Libertarian Party.

The coalition is planning to back legislation expected to be announced Wednesday that would repeal portions of the Patriot Act. Sens. Larry Craig, R-Idaho, and Richard Durbin, D-Ill., are planning to reintroduce their Security and Freedom Enhancement Act, which failed to win sufficient support last year.