Behind the USA Patriot Act

By Ann Harrison, AlterNet. Posted November 5, 2001.

Editor's note: This is the first in a series of two articles on the USA Patriot Act by Ann Harrison. The second will explore what is known about the identity and conditions of the 1,147 people detained in the anti-terrorism investigation.

Since launching their no-holds-barred investigation into the Sept. 11 attacks, the FBI has released an astonishing amount of information about the men who they have identified as the hijackers. There are photographs of them passing through airport security and peering into ATM machines. The FBI has records of their cell phone calls, their cash transfers, air travel, credit card purchases, car rentals, email messages and hotel bills.

Now that the hunt is on for accomplices who could be planning more attacks, law enforcement officials have sought the legal authority to collect even more information about the minutiae of daily life. The new anti-terrorism law signed into law on Oct. 26 grants law enforcement authorities sweeping new surveillance powers that are not limited to terrorism investigations but also apply to criminal and intelligence investigations.

The new law, known as the USA Patriot Act, reaches into every space that Americans once imagined was private. For instance, police can now obtain court orders to conduct so called "sneak and peak" searches of homes and offices. This allows them to break in, examine and remove or alter items without immediately, if ever, presenting owners with a warrant detailing what they were entitled to do and where.

This seismic shift in the government's power of search and seizure also extends to the examination of records. Authorities can browse medical, financial, educational or even library records without showing evidence of a crime. The law overrides existing state and federal privacy laws if the FBI claims that the information is connected to an intelligence investigation.

In addition, credit reporting firms like Equifax must disclose to the FBI any information that agents request in connection with a terrorist investigation, without the need for a court order. In the past, this was only permitted in espionage cases.

Biometric technology, such as fingerprint readers or iris scanners, will become part of an "integrated entry and exit data system" to identify visa holders entering the United States. Face recognition technology is now being installed in several U.S. airports.

The legislators who rushed these provisions through the House and Senate say that law enforcement authorities need this data to help track down terrorists and prevent future attacks. "We were able to find what I think is the appropriate balance between protecting civil liberties, privacy and ensuring that law enforcement has the tools to do what it must," said Senate Majority Leader Thomas Daschle (D-S.D.) in a statement following the passage off the bill.

But civil liberty groups have been alarmed by this legislation since it started whisking its way through Congress. Jim Dempsey, deputy director of the Washington D.C.-based Center for Democracy and Technology (CDT), says he is particularly concerned about the provision in the law that allows the FBI to share with the CIA information collected in grand jury investigations. The 1947 National Security Act states that the CIA should have no domestic police or subpoena powers. But Dempsey says CIA agents could now use their close relationship with the FBI to essentially fill in subpoenas provided by prosecutors. "To do this with no prior judicial approval is a fundamental change in the way we have set up our police agencies and set them apart from our foreign intelligence agencies," said Dempsey. "And it was done with very little debate."

Legislators who voted for the USA Patriot Act pointed out that the most controversial surveillance sections will would expire in 2005. Senate Judiciary Committee chairman Sen. Patrick Leahy (D-Vt.) announced that a four-year expiration date "will be crucial in making sure that these new law enforcement powers are not abused."

Dempsey says the CDT is hoping there will be a Congressional review prior to any extension of the provisions. But he, and many others, have pointed out that these so-called "sunset provisions" do not apply to the sharing of grand jury information, giving the CIA the permanent benefits of grand jury powers.

The so-called "sneak and peak searches" are permanent as well. And further, the sunset provisions do not apply to ongoing cases. This means that intelligence investigations, which often run for years, would continue to operate under the law even if provisions are not extended past 2005. Also exempted are any future investigations of crimes that took place before this date.

Internet surveillance via "pen register" devices, which capture phone numbers dialed on outgoing telephone calls, and "trap and trace" devices, which capture the numbers of incoming calls, are also exempt from the sunset provisions. These orders were originally used to provide investigators with telephone numbers dialed by suspects. They can now be used to monitor email addressing information and Web pages visited, in some circumstances without judicial oversight. Investigations approved by the secretive FISA intelligence court would also not require notification.

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