ACLU Testifies at House Patriot Act Hearings

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On Thursday, April 28, the House continued its hearings on the USA Patriot Act, as the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security (SCTH) heard testimony from four witnesses regarding Sections 206 and 215. During testimony, proponents of making the provisions permanent, including a representative from the Department of Justice, once again reiterated their willingness to clarify Section 215 to safeguard citizens' civil liberties.

Appearing before the subcommittee, which was chaired by Rep. Howard Coble (R-NC), those in favor of making the two Patriot Act provisions permanent were Kenneth L. Wainstein, interim U.S. Attorney, D.C.; James A. Baker, counsel for Intelligence Policy for the Department of Justice (DOJ); and Robert S. Khuzami, former assistant U.S. Attorney for the Southern District of New York. Gregory T. Nojeim, associate director and chief legislative counsel for the American Civil Liberties Union (ACLU), was the lone representative testifying in favor of amending the provisions to safeguard citizens' right to privacy.

Though the provision was not scheduled for sunset and was not listed among the topics of the hearing, there was discussion about Section 505, which threatens the privacy of bookstore and library patrons because the provision makes it easy for the FBI to obtain sensitive information about the customers of "electronic communications service providers." Several subcommittee members, as well as ACLU's Norjeim, recommended that it should not be left out of the discussion of those Patriot Act provisions in need of change to protect citizens' privacy.

"[Section 215] allows law enforcement officers to obtain private records with no more than a representation that it is relevant to foreign intelligence," said Rep. Robert Scott (D-VA), in his opening statement. "And Section 505 -- even though it is not under sunset -- we can't talk about 215 without the same problem ... there's no probable cause."

John Conyers (D-MI) stressed that, while 505 was left off the oversight committee schedule, he hoped that some of the witnesses would discuss how the provision had been used. "I reiterate my concern that the committee has left ... important terrorist related policies off its oversight schedule," he said. "This committee is, in my view, ignoring the most pressing matters in its jurisdiction. There are plenty of things to examine that don't have any expiration."

As in the previous House hearing, those who testified in defense of making Section 215 permanent discussed the vital role the provision plays in combating terrorism and stressed the fact that terrorists have used computer terminals in libraries to conduct their business. In addition, they stressed that Section 215 maintained safeguards to protect innocent Americans' privacy.

Wainstein contended the provision had a "narrow scope," required prior court approval, and was subject to Congressional oversight. He noted, "Section 215 is scheduled to sunset at the end of the year. If that is allowed to happen, we will find ourselves in a position where tools available to law enforcement officers in the fight against drugs, organized crime, and child pornography would be denied our national security investigators who are striving to protect our country against terrorism and espionage. It would be a mistake."

Khuzani disputed the notion that Section 215 was a "radical extension of government authority" and said the provision is "simply and modestly ... designed to permit the government to collect standard business records from third parties relevant to foreign intelligence and terrorist investigations." However, he stressed, "The Department of Justice has endorsed amendments that would allow those getting 215 orders to consult with attorneys and challenge the order and its scope before the FISA Court."

For his part, Nojeim stated that the ACLU was not asking that Section 206 and 215 be repealed, but that safeguards be added to the provisions to ensure American citizens' civil liberties. "In both Sections 215 and 505, the Patriot Act removed the requirement that the records being produced pertain to an agent of a foreign power -- this significantly expanded law enforcement access to records pertaining to Americans," he argued. "In these days of data mining, one cannot ignore this stark fact: Under these provisions, the government can easily obtain records pertaining to thousands of Americans who have nothing to do with terrorism so long as the records are sought for are allegedly relevant to one of these investigations.

"Let's make these provisions subject to reasonable checks and balances," Norjeim concluded.

In related news, on April 27, ABA COO Oren Teicher sent a letter via e-mail to booksellers whose Congressional representatives serve on the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Teicher urged booksellers to contact their representative to tell "him or her that Section 215 threatens the privacy of reader records." (For the full text of Teicher's letter, click here. To learn more about the Campaign for Reader Privacy, go to --David Grogan