Global POV: At the Intersection of Technology and Culture

Reform School

by David Holtzman

President George W. Bush and the ACLU are suggesting reforms for the Foreign Intelligence Surveillance Act (FISA) and the Patriot Act. Not surprisingly, their ideas differ greatly.

In his weekly radio address, the President said his administration is proposing legislation that would modernize the 29 year old law to cover technologies that have been developed since FISA's passage. He cited four key reforms: updating legal language to accommodate new technology, protecting privacy interests of people within the United States, allowing the government to work more efficiently with private-sector entities like communications providers, whose help is essential. And lastly, the bill calls for streamlining administrative processes so the intelligence community can gather information quickly and effectively while protecting civil liberties. Reform number three is alarming while number four is questionable, at best. The Bush administration is twelve days overdue in answering a subpoena issued by Congress asking for documents related to the warrantless surveillance. Senate Judiciary Committee Chair Patrick Leahy (VT) granted an extension on July 17. The Committee is expected to issue a new compliance date soon. Earlier this month, the U.S. Court of Appeals for the Sixth Circuit dismissed a legal challenge to the Bush administration's warrantless surveillance program by a vote of 2-1.
For the full decision see. The ACLU is weighing its options, an appeal to the U.S. Supreme Court is a possibility.

Meanwhile, the ACLU's Patriot Act reform < http://action.aclu.org/reformthepatriotact/ > focuses on the National Security Letters (NSL) provision. This section of the Patriot Act allows the F.B.I. to demand (without judicial review) telephone and e-mail records, financial records, and credit information from a recipient of an NSL. There is a gag order associated with NSL prohibiting the recipient from disclosing the fact that they received a letter to the subject of the search and from disclosing the records provided. The ACLU challenged the gag order provisions in Doe v. Ashcroft and Doe v. Gonzales. In both cases the judges ruled that the gag orders were unconstitutional on First and Fourth Amendment grounds. The Patriot Act Reauthorization Act of 2005 changed some of the provisions. An NSL recipient can now disclose that they have been a recipient while seeking legal advice or complying with the request. Recipients may also challenge compliance with the NSL and the gag order provisions. Additionally, the government was given the ability to seek judicial enforcement of NSLs in non-compliance situations. Congressmen Jerrold Nadler (D-NY) and Jeff Flake (R-AZ) introduced a bill on Thursday that proposes a fix for the gag rule. It also calls for a limit to the use of NSL's to investigations directly connected to terrorism thus limiting fishing expeditions that became public in the Office of the Inspector General's Report.

In case you're keeping score, NSL requests prior to the passage of the Patriot Act (2000)? About 8,500. NSL requests between 2003-2005 (after the passage of the Patriot Act)? 143,074. See Inspector General's Report.

Posted on July 30, 2007