The Sunset of the Patriot Act Professor Peter P. Swire Moritz College of Law Ohio State University Winter College February 19, 2005

Overview n Important parts of the USA-PATRIOT Act sunset (expire) on Dec. 31, 2005 n This talk will focus on two topics: – The Wall between domestic law enforcement and foreign intelligence – Broad new search powers for any records under secret search authorities n Theme: how to fight terrorism and update the laws while also preserving civil liberties

My Background n 1986: 4 years of law practice, with Congress and agencies n 1990: law teaching, at Virginia n Arrived at OSU in 1996 – Internet, privacy – Also, business law, banking, legislation, torts – 1998 book on U.S.-E.U. and privacy

Public Service n Early 1999, on leave from OSU to go to OMB, as first Chief Counselor for Privacy – Internet and privacy – Medical privacy rule (HIPAA) – Financial privacy rule (Gramm-Leach-Bliley) – International issues (agreement with Europe) – Government agencies, such as web sites

Updating Surveillance Laws n 2000: John Podesta asked me to chair White House Working Group on how to update surveillance & wiretap laws for the Internet n 14 agencies (many with 3 letters) n Our goal: preserve the historic balance where public safety is protected as well as privacy and freedom

Proposal of June, 2000 n Many of the issues later in the Patriot Act n My view: a balanced package – Updated authorities: device only applied to hardware for wiretaps, should be software,too – Updated privacy: strict rules already for phone wiretaps, and should be the same for n Rejected by House – they wanted more and stricter privacy protections

The Patriot Act n The attacks of September 11 n Bush legislation submitted Sept. 19 – Lots of our provisions – Lots we had considered and rejected – A few bad ideas eliminated by Congress – The main change by Congress – sunset the changes at the end of 2005, so we can re- examine this entire area with the benefit of experience – Overall, no privacy protections and 2-3X stricter than our 2000 bill

The Wall n Background on the wall – Constitution, 4 th Amendment, apply in the U.S. for law enforcement purposes – No unreasonable searches and seizures – Wiretap laws are very strict, including notice to the target after the fact – Wiretaps only if a crime has been, is, or is going to be committed

The Wall n For Soviet spy, wait for the crime to be committed before wiretap? n No, so Foreign Intelligence Surveillance Act in 1978 n Secret wiretaps for agents of foreign powers; special secret court gives them n That includes foreign terrorists

The Wall n Want to keep constitutional protections in the U.S., so created a wall between law enforcement and foreign intelligence n Secret taps in U.S. only if the primary purpose is foreign intelligence, such as spies n Police and prosecutors usually dont get to use FISA material and FISA powers

Cracks in the Wall n CIA and FBI werent sharing information n That contributed to the failure to spot known terrorists on 9/11 n In general, line between domestic and foreign works less well in modern world of travel and the Internet n Therefore, push to bring down the wall

The Sunset and the Wall n Bush Administration proposed OK to do secret wiretaps (and give to cops) if a purpose is foreign intelligence n Congress said a significant purpose n One court made that test very easy to meet n Should we be worried?

Sunset and the Wall n Since 2001, number of FISA orders way up n A majority of all wiretaps in 2003 n Are we sliding into a secret wiretap system? – Less oversight by press, the target, or Congress n My view is that we needed updating for global realities, but need more checks and balances

Sunset and the Wall n My suggestion: – FISA wiretap only if the foreign intelligence aspect is enough to justify the wiretap – Can then also use for law enforcement – But the key is that a smidgen of foreign intelligence should not be the excuse for a secret wiretap; stop the slippery slope n My article at n Hearings this year

Section 215: Libraries and Gag Rules n FISA started in 1978 with wiretaps n What about the documents used by the spy or terrorist? n Section 215 of the Patriot Act allows judge to issue order for any records or tangible object – Not probable cause of a crime – Probable cause that is an agent of a foreign power, which is broadly defined

Sec. 215 and Libraries n You may have heard about concern from librarians about this new search order – Your library records to the police n 3 key points – Applies to all record-holders, including doctors, employers, banks, despite other laws – Is a federal crime for the record-holder to tell anyone that the search has happened – Access is to the database, so all persons records go to the government in the secret search

Sec. 215 and the Gag Rule n My biggest concern is that the library, hospital, or AOL cannot say anything about the search n Gag rule does make sense for wiretaps – They dont work so well if you tell about it n No similar history for searches of houses or records

Sec. 215 and the Gag Rule n Imagine you are landlord or AOL, and request for records of John Smith – Is conspiracy or aiding & abetting to tip off John – But landlord or AOL can say, especially after the fact, that there was a search – AOL can say 117 searches this year – That right of publicity is a key defense against overuse of search powers

Sec. 215 and the Sunset n Almost no public discussion on Sec. 215 during passage of the Patriot Act n Librarians have helped make it an issue n An opportunity this year to revisit the issue – Have powers to get records where proper showing – Dont create tool for secret snooping through all databases, about all persons

Concluding Thoughts n Even in 2000, clear that surveillance rules needed to be updated for new technology and global changes n 2001 and understandable reaction to the attacks n 2005 and our opportunity to seek security and civil liberties for the long haul

Concluding Thoughts n New Paul Rosenzweig book on Lessons from the Cold War – Heritage Foundation scholar (conservative) – Hard-headed about what it takes to confront enemies over a period of decades – To win for the side of freedom, we must continue to build freedom into the fabric of government and society

Conclusion: Dueling Quotes n Justice Robert Jackson: The Constitution is not a suicide pact n Ben Franklin: They who would give up an essential liberty for temporary security, deserve neither liberty nor security. n How to achieve security, and liberty, in our current age?