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    Op-Ed at Los Angeles Times: Privacy and the Patriot Act

    The Los Angeles Times has an editorial about privacy and the USA PATRIOT Act, parts of which are currently up for renewal in Congress. Recently, Obama administration officials sent letters to lawmakers (pdf) urging reauthorization of expiring USA PATRIOT Act provisions. Justice Department officials said in the letters that the administration is willing to consider “modifications to provide additional protections for the privacy of law abiding Americans” but these proposals must “not undermine the effectiveness of these important authorities.”

    Some civil libertarians want lawmakers to revisit the FISA Amendments Act, which was passed last year and greatly expanded the secret surveillance powers of the federal government. The Act also conferred retroactive immunity upon the telecommunications companies that participated in the NSA’s warrantless wiretapping program. (Last year, Privacy Lives joined a number of groups in a letter (pdf) to the U.S. Senate opposing the FISA Amendments Act.)

    The Los Angeles Times writes:

    The USA Patriot Act, supported by members of Congress from both parties and signed by President George W. Bush only 6 1/2 weeks after 9/11, is formally known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The grandiose title, like the law’s hasty enactment, reflected the national resolve to do something, anything, to prevent a repeat of 9/11.

    Some parts of the original act were relatively uncontroversial, including those permitting the CIA and the FBI to share information more freely and allowing investigators to seek warrants for “roving wiretaps” targeted at individuals rather than telephone numbers. Others, however, unjustifiably eroded privacy rights. Particularly troubling were rules governing the acquisition of financial and other records that allowed investigators to conduct fishing expeditions — as long as the documents were deemed “relevant” to a search for terrorists. […]

    The Patriot Act’s greatest threat to personal privacy lies not in any of the provisions set to expire but in the law’s expansion of the use of national security letters, subpoenas that allow the FBI to obtain records without a warrant. In 2008, the FBI issued 24,744 letters involving the records of 7,225 people. Not surprisingly, there have been abuses. In 2007, after an investigation of four FBI offices, the Justice Department’s inspector general found irregularities in 22% of documents related to the issuance of national security letters. Last year, he found that the FBI had made “significant progress” in correcting violations.

    Even so, the criteria for issuing the letters are too vague. At present, the government must merely certify that the information sought is relevant to an authorized investigation. The bill approved by the Judiciary Committee would increase the burden on the government slightly by requiring a written statement of specific facts demonstrating relevance. A narrower amendment by Feingold and Durbin — which would have required issuance of national security letters to be related to a suspected foreign agent or terrorist or a possible confederate — was rejected by the committee. […]

    It’s easy amid this welter of technical provisions to lose sight of the overarching question: To what degree can invasions of privacy be justified by the need to investigate and prevent acts of terrorism? In the aftermath of 9/11, both Congress and the executive branch needlessly cut legal corners. It’s time to make amends.

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