“The Sunset of the Patriot Act”

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

2. Overview • Important parts of the USA-PATRIOT Act sunset (expire) on Dec. 31, 2005 • 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 • Theme: how to fight terrorism and update the laws while also preserving civil liberties

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

4. Public Service • 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

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

6. Proposal of June, 2000 • Many of the issues later in the Patriot Act • 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 e-mail • Rejected by House – they wanted more and stricter privacy protections

7. The Patriot Act • The attacks of September 11 • 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

8. “The Wall” • Background on “the wall” • Constitution, 4th 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

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

10. “The Wall” • Want to keep constitutional protections in the U.S., so created a “wall” between law enforcement and foreign intelligence • Secret taps in U.S. only if “the primary purpose” is foreign intelligence, such as spies • Police and prosecutors usually don’t get to use FISA material and FISA powers

11. Cracks in “the Wall” • CIA and FBI weren’t sharing information • That contributed to the failure to spot known terrorists on 9/11 • In general, line between “domestic” and “foreign” works less well in modern world of travel and the Internet • Therefore, push to bring down the “wall”

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

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

14. Sunset and “the Wall” • 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 • My article at www.peterswire.net • Hearings this year

15. Section 215: Libraries and Gag Rules • FISA started in 1978 with wiretaps • What about the documents used by the spy or terrorist? • 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

16. Sec. 215 and Libraries • You may have heard about concern from librarians about this new search order • Your library records to the police • 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

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

18. Sec. 215 and the “Gag Rule” • 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

19. Sec. 215 and the Sunset • Almost no public discussion on Sec. 215 during passage of the Patriot Act • Librarians have helped make it an issue • An opportunity this year to revisit the issue • Have powers to get records where proper showing • Don’t create tool for secret snooping through all databases, about all persons

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

21. Concluding Thoughts • 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

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