Saturday, January 07, 2006

Analysts conclude Bush spying rationale is legally shaky

A report by Congress's research arm, The Congressional Research Service, concludes "that the administration's justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments."

The 44-page CSR report said that President Bush probably cannot claim the broad powers he has relied upon to order the secret monitoring of U.S. citizens since the fall of 2001.

The findings of this report has prompted Democratic lawmakers and civil liberties advocates to call on Congress to conduct hearings on the monitoring program and attempt to stop it.

Democrats fear the Patriot Act?

According to an opinion piece in The American Daily by Paul Ibbetson, Democrats fear (not hate nor dislike) the Patriot Act.

Ibbetson has a theory as to why Democrats dislike the Act:

1) He suggests that Democrats have been unable to think or devise an alternative strategies for the war on terror

2) and that the Act it self represents action

While this theory may apply to some liberals out there, I think we have seen that most Democrats in Congress support most of the Act. In question and up for debate are those provisions that may or may not violate civil liberties.

I think it is dangerous to say that just debating or questioning the Act means you are against stopping terrorists. This country has a long history of debate and free speech. These are the last things we should be willing to let go of.

President Bush, campaigning to make law permanent, said recently:

"When it came time to renew the act, for partisan reasons, in my mind, people have not stepped up and have agreed that it's still necessary to protect the country," Mr. Bush said. "The enemy has not gone away - they're still there. And I expect Congress to understand that we're still at war and they've got to give us the tools necessary to win this war."

While the measure was originally passed with bipartisan support, time limits were built in because:

"many lawmakers were nervous about its broad reach in the wake of criticism that the legislation impinged on civil liberties. Last month, with major provisions of the law set to expire on Dec. 31, the White House made a strong push to make the law permanent, but Democrats and a handful of Republicans balked, and extended the law for only five weeks, to Feb. 3." (Source: NY Times, emphasis added)

I cannot say that the Patriot Act is perfect as is and should remain as originally adopted. Congress has the ability to improve it.

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Friday, January 06, 2006

Should you be afraid of the Patriot Act, Part IV?

Previously we have talked about FISA, the National Security Letters, and "sneak-a-peak". Today, let's consider Section 215 of the Patriot Act – the so called “library provision” or “angry librarian provision” depending on who you talk to.

In library school, we hashed through the common bun and shushing stereotype. Almost a decade later the image of librarians may be changing. In 2003, a frustrated FBI agent wrote in an e-mail:
"The inability of FBI investigators to use this seemingly effective tool has had a direct and clearly adverse impact on our terrorism cases. While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us."
There have been stories of agents using Section 215 in libraries, but the Department of Justice and FBI deny that Section 215 has been employed against libraries.

In response to the Patriot Act, many states created confidentiality laws to protect library and other types of records. For example, an excerpt from Maryland’s law as it relates to library circulation records:

Section 23-107. Circulation records.

(a) Inspection, use, or disclosure prohibited. -- Subject to the provisions of subsection (b) of this section, a free association, school, college or university library in this State shall prohibit inspection, use, or disclosure of any circulation record or other item, collection, or grouping of information about an individual that:
(1) Is maintained by a library;
(2) Contains an individual's name or the identifying number, symbol, or other identifying particular assigned to the individual; and
(3) Identifies the use a patron makes of that library's materials, services, or facilities.

Section 215 overrides state library confidentiality laws by permitting the FBI to compel production of business, medical, education, and library records without demonstrating probable cause. Prior to the USA Patriot Act amendments, the Act restricted the FBI’s purview to entities that contained travel information such as airline carriers, hotels, and vehicle rental facilities.

So, if an agent shows up on your doorstep demanding some circulation information or a computer, how will you know he or she is operating under 215? After all, the orders under Section 215 will not state their purpose and if served, the librarian can not disclose to any other person (other than those persons necessary to produce the information sought)that the FBI has sought or obtained information under the section. According to the ACLU, this is the form.

In June 2005, Congressman Sanders led a tri-partisan coalition to try to keep Government from accessing library records without a warrant.

I believe, however, that the Sanders amendment (passed June 2005) is largely symbolic for the following reasons:

1) This was tied to an annual appropriations bill, so it only applies for one fiscal year.

2) This only applies to the use of Section 501 of the FISA to obtain records, so it does not affect other procedures or authorities that the Department of Justice might use to obtain library records, such as a grand jury subpoena, or a warrant based on probable cause.

3) This will only affect records held by the library. Since library computers are usually connected to the Internet, the interested party would likely be able to access information from the library’s ISP. The Sanders amendment does not affect the DOJ's ability to go to the ISP for records and information.

For more on the legal analysis that can support this, read this article at the Tech Law Journal.

What is the Legality of the NSA Domestic Surveillance Program?

Do you think that eavesdropping and wiretapping of US citizens is a necessary fact of life in this day and age? Or do you think that wiretapping without warrants might violate the US Constitution's fourth admendment? A good resource to check out is the website of the Council on Foreign Relations. Their website states that they are a non-partison source of information. Recently, asked five lawyers and legal scholars to share their thoughts on the legality of the NSA Domestic Surveillance Program.

One of the legal scholars, Dakota Rudesill, suggests that:

"As a legal question, we are going to hear three interrelated debates. The first is about the Fourth Amendment. How do the Fourth Amendment's basic guarantee of freedom from unreasonable searches and seizures and its warrant requirement constrain congressional legislation and executive activity in the war on terrorism? The other debates are about inherent constitutional executive and congressional war powers, and how, in light of those constitutional powers, we should read together two statutes. Those statutes are the FISA law that governs electronic surveillance specifically, and the Authorization for the Use of Military Force that authorizes military operations post-9/11 generally.

The Bush administration has advanced a sweeping reading of presidential war power, saying that AUMF has put the president's constitutional power as commander-in-chief of the armed forces at its maximum, and that includes broad authority for warrantless surveillance of communications with some foreign terrorist link. On the other hand, we can expect to hear from many on Capitol Hill a different line of argument, that the Congress can restrict executive power under the legislative branch's constitutional authority "for the government and regulation" of the armed forces, that Congress intended to regulate NSA and all wiretaps under the FISA statute, and that Congress did not intend to create a way around FISA in the post-9/11 AUMF. Therefore, the argument will run, the administration should have either gotten FISA warrants or worked with Congress to amend FISA. This is a profoundly important debate, and everyone interested in national security and foreign policy should pay close attention." (emphasis added)

Thursday, January 05, 2006

New expiration date for the Patriot Act

Sixteen provisions of the Patriot Act are due to expire February 3. The Columbia Basin Herald editorial board writes that the Act should expire.

They argue, that while convincing arguments exist for the Act, law enforcement should obtain warrants. FISA attempts to expedite the warrant process, but Government is not required to let you know if they obtained a FISA warrant to investigate you.

The editorial article in the Herald argues that:

"The Patriot Act seems designed to avoid warrants, which is a judge's permission to spy during a law enforcement investigation. Warrants balance the power authorities have to disregard our privacy and violate our constitutional rights. They help keep law enforcement honest. Any law removing the need for a warrant is in conflict with our Constitution."
Public support for the Patriot Act appears to be dwindling, which would explain why the White House has amped up its efforts to gain support for it. I think most people are like me and fairly torn. If these online poll results are accurate, it also points to a dwindling support.

On the other hand, some stongly support the Patriot Act, such as the Heritage Foundation, a conservative think tank. On their website, they write: "Most of the proposals for reform mistake the appearance of potential problems and abuse (the myth) with the reality of no abuse at all--and, thus, the case for change has not been made."

Now is a great time to take part in the democratic process and voice your opinions by e-mailing your Senator or Congress representative

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Should you be afraid of the Patriot Act, Part III

Earlier I wrote on Provision 218. Today, I'm writing about the so-called "sneak-a-peak" provision -- Section 213.

Section 213 extends the ability of law enforcement to delay the notice of search of some forms of electronic communication if it is believed that notification would create an adverse result. The goal of this provision is to improve the Government’s ability to investigate suspected terrorists by granting law enforcement a greater latitude for clandestine operations. Section 213 largely codifies existing law enforcement practice so that it is more consistent with recent court decisions.

According to the ABA website:
"...the "adverse result" standard (defined in 18 U.S.C. § 2705), by virtue of its ambiguity, creates the potential for abuse. As a result, section 213, which is not currently subject to the four-year sunset contained in the Act, should, nevertheless, be carefully reviewed at that time."

Some have reported that 213 expands the Government's ability to search private property without notice, but this has largely been discounted as a myth.

PBS Online Newshour covered portions of the debate before the Senate Judiciary Committee. Appearing before the Senate Judiciary Committee, Attorney General Alberto Gonzales and FBI Director Robert Mueller urged lawmakers to renew the anti-terror Patriot Act. The transcript shows that many are confused about 213, the so-called "sneak-and-peek" provision:

"KWAME HOLMAN: Wisconsin Democrat Russ Feingold raised issue with another part of the Patriot Act he says overreaches, commonly referred to as the "sneak-and-peek" provision.

Section 213 says: "Any warrant to search for or seize property or material that constitutes evidence of a criminal offense may be delayed if the court finds reasonable cause to believe that providing immediate notification of the warrant may have an adverse result."

SENS. RUSS FEINGOLD: So when we're discussing Section 213, Mr. Chairman, we're talking for the most part about searches done to investigate crimes that have nothing to do with terrorism or espionage, right?

ALBERTO GONZALES: It can, but it also includes other kinds of crimes; that's correct. 213.

SEN. RUSS FEINGOLD: There's no inherent connection to terrorism...

ALBERTO GONZALES: That's correct.

SEN. RUSS FEINGOLD: Vis-à-vis the power in section 213 of sneak and peek.

ALBERTO GONZALES: That is what Congress intended when I believe, when they drafted 213.

SEN. RUSS FEINGOLD: I'm glad we clarified that, because I think many people have a diferent calculation about the way - what they think should be permissible if we're talking about terrorism investigations. So people should be clear: Section 213, sneak and peek, is in no way delimited to terrorist situations.

KWAME HOLMAN: Alabama Republican Jeff Sessions followed, arguing delayed notification of a search warrant always has been part of law enforcement procedure.

SEN. JEFF SESSIONS: Basically all it says is that historically you issue a report or an inventory of the search and you give that to the person once you conduct a search warrant contemporaneously with the completion of the search.


SEN. JEFF SESSIONS: But the courts have upheld in the past -- and it is an established principle of law enforcement since I was connected with the Department of Justice -- that you could conduct a search under certain circumstances with court approval and delay notification to the person who's being searched. Hasn't that been true?

ROBERT MUELLER: Yes. It's been around the country various courts have upheld that process over the years.

SEN. JEFF SESSIONS: So this act simply says we can do it when we're investigating people that are trying to kill us, not just sell drugs on the streets.

ROBERT MUELLER: That, and it also regularizes the practice throughout the United States.

KWAME HOLMAN: Specific changes to the Patriot Act already are being proposed. This afternoon, Sen. Durbin, a Democrat, teamed with Idaho Republican Larry Craig to introduce new legislation called the Safe Act.

They say it's purpose is to restore civil liberties protections the Patriot Act has put at risk, without removing law enforcement's current surveillance powers."

So with Provision 213, the Government does have a right to delay notifying you...but at least you will find out you have been investigated...eventually. With FISA, you may get no such notification.

In the transcript above, the SAFE Act is mentioned. This Act should be of interest to Librarians. It is intended to amend the Patriot Act. One thing it attempts to do is to prevent the government from accessing library records without judicial approval:

"SAFE § 5 amends 18 U.S.C. 2709 to prevent the use of “National Security Letters” to obtain library records. National Security Letters are administrative subpoenas that are issued directly by the Justice Department without any judicial oversight."

More on the SAFE Act later...

President Bush's PR campaign

President Bush has intensified his PR campaign to attempt to garner support for the war in Iraq. On Jan. 4, All Things Considered (NPR) led with a story about President Bush and Vice President Cheney pressing their “case for executive power in pursuing terrorists at home and abroad.” To listen to the audio, go here.

This morning, NPR carried the story that the President has invited former Secretaries of Defense and State to the White House for a 1-hour meeting related to the war in Iraq, terrorism, and security. Listen to the audio here.

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Wednesday, January 04, 2006

Should you be afraid of the Patriot Act, Part II

A little while back, I blogged about should you be afraid of the Patriot Act?

In a series of posts, I want to explore various provisions that are the controversional provisions in the Act. Today, let's talk about Section 218, the so called FISA section. Section 218, amends and expands FISA. The Foreign Intelligence Survelillance Act, was a bargain struck in 1978 by Congress to allow searches without traditional warrants in what was believed to be a small amount of cases.

Since the Patriot Act, the number of FISA approved searches have increased dramatically. According to a Slate article:

"The FISA court approved 1,228 applications for warrants in 2002, up from 934 in 2001 and 1,012 in 2000. (The number of warrants issued was consistently below 1,000 throughout the '90s.) When asked by the House Judiciary Committee in 2002 how many of these warrants met the "significant purpose" standard but would have failed to meet the "primary purpose" standard, the DOJ hedged, saying they'd kept no statistics on the distinction."

The Government can now investigate any body quite freely without letting them know that they are being monitored. If you were investigated, you might not ever know unless you were prosecuted using information gathered with a FISA warrant.

The intent of Section 218 was to help the Government with foreign intelligence. As it stands right now, there is nothing to prevent Section 218 from being used on US citizens...maybe you, maybe me. We might not ever know. Some civil liberties protection should be built into this Act.

Patriot Act Powers

The Patriot Act had provisions that were set to expire December 31, 2005. If you didn't follow the debate over the extension too closely, it got really interesting when Wisconsin Republican James Sensenbrenner (chairman of the House Judiciary Committee) effectively rebuffed a six-month exntion of the Act that the Senate had approved. Sensenbrenner appeared to have been concerned that the current reauthorization of 16 provisions in the Act do not contain sufficient civil liberty protection.

EPIC (The Electronic Privacy Information Center) filed a FOIA request last year. They received few documents from the request until a federal district judge ordered the FBI to produce 1500 documents every 15 days. Read more about this here.

According to a report on

"The previous batch of documents, delivered shortly before Christmas, show that the FBI's office of general counsel had sent to the Intelligence Oversight Board several complaints about agents' snooping activities. The board is comprised of three members, is housed in the White House and reports to the president.

Some of the complaints relate to how agents tracked their targets. One complaint, for example, showed concern over the tracking of a suspect's telephone calls. The agent continued the tracking even after someone other than the suspect started using the phone, said Marcia Hofmann, director of EPIC's open government project.

Another document shows that an FBI agent received an order from the Foreign Intelligence Surveillance Court that allowed him to access addressing information on a suspect's e-mails, but he ultimately accessed more information in the e-mails than allowed by the court."

EPIC does a great job utilizing FOIA. However, some of the records that have been released to them are not very helpful due to censoring. For example, a document about the number of NSA Letters is entirely blacked out. Although, I suppose it gives you an idea of how many there have been since the report is apparently 6 pages of a single spaced list.

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Bush criticizes Democrats

According to the Seattle Times, President Bush has accused Democrats of blocking a complete reauthorization of the Patriot Act.

The White House expects there will be a heated dispute over the Patriot Act and recent relevations that President Bush secretly authorized the NSA to monitor communications within the US that involved suspected terrorists. Congress has planned hearings on the NSA program later this month and will vote on the Pastriot Act early next month, when the current extension to the Act expires.

Senator Russ Feingold, a Democrat from Wisconsin, said:
"Contrary to the president's misleading comments, nobody wants to see the Patriot Act expire," Feingold said. "We want common-sense changes to the act that would give the government the power to combat terrorism while protecting the rights and freedoms of law-abiding citizens."
Let your views be known by writing to your representative here.

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Tuesday, January 03, 2006

ID thief uses sex registry in scam

A Canadian law blog reports an interesting story that appeared on Yahoo news recently:
"Police in Arkansas have arrested a man for using information gleaned from the state's sex offender registry to get credit cards and tax refunds in the names of those offenders. He was busted at a routine traffic stop when the police officer noticed unusual files in the person's car."
Apparently he scammed about $20,000 in credit cards using the names of registered sex offenders.

Since I have misplaced the URL for the Canadian blog, here's another.

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Monday, January 02, 2006

The little red book hoax

Earlier this week, a story burned up the library listservs about a student who reported a visit from agents after he borrowed Mao's book via Inter Library Loan (ILL). You know, I wasn't going to write about this hoax, but the story is still popping up!

Boing Boing has a good post on the story. Now originally a Mass. paper reported:

"The professors said the student was told by the agents that the book is on a "watch list," and that his background, which included significant time abroad, triggered them to investigate the student further."

The follow up story is here.

If you believe this article, it appears the student was seeking attention:
"When I came back, like wow, there's this circus coming on. I saw my cell phone, and I see like, wow, I have something like 75 messages and like something like 87 missed calls," he said. "Wow, I was popular. I usually get one or probably two a week and that's about it, and I usually pick them up."
Let's talk about the fact that many of librarians suspected the story was a hoax before it came out in the papers. How would ILL's be monitored? Through CONTU? Through OCLC? If though OCLC, how would agents link up the name of the student with the book?

Many people were willing to believe it, however. I think because there is a sense that the Government has been all too willing to trample over people's privacy and rights.

There have been stories from libraries that have reported visits from agents...although the Government has also stated that they have never made use of provision 215 of the Patriot Act.

I think the biggest problem with the Patriot Act is the gag order that accompanies it. Maybe they think a librarian would notify a patron if they were being investigated? Maybe some would, since librarians recently earned the adjectives of radical and militant.

Maybe this is better than the bun and shushing stereotype?

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FISA in the news

According to a 2004 FISA report made to Congress, the Foreign Intelligence Surveillance Court received 1758 applications for electronic surveillance and physical search.

The court approved 1754 applications. Three of the applications were withdrawn by the Government prior to the Court ruling on them. The Government withdrew four of the applications and resubmitted one. Basically, the FISA court did not deny any application made by the Government, although the report does say that it "made substantive modifications to the Government's proposed orders in 94 applications presented to the Court."

On December 21, the Washington Post reported that one of the FISA judges resigned. From that article:
"U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation."
An anonymous source quoted in the article said, "What I've heard some of the judges say is they feel they've participated in a Potemkin court."

You can read more about FISA here, here and here.


Sacrificing civil liberties?

Sherry Colb, Professor and Frederick B. Lacey Scholar at Rutgers Law School, has an interesting opinion piece on FindLaw's Legal Commentary.

Aside from providing a good background discussion on warrants, she explores the impact 9/11 had on warrant requirements. She writes:

"...we now know that the problem on September 11th was not the failure to have gathered intelligence. It was the failure to read the intelligence we already had (about flight schools and planned airplane attacks on the World Trade Center towers), to which the administration had ready access. The problem, in other words, was too much -- and poorly organized -- information, rather than not enough. The continuing broad surveillance of U.S. citizens, without oversight, thus promises only to aggravate matters."
She concludes that:
"The warrant requirement is a critical component of our democracy. Right now, it ensures that someone outside of the Bush Administration might be in a position to criticize and veto decisions that could be biased, mistaken, and ultimately fatal to the freedom that Bush and his critics alike hold dear."
You know, as a librarian I feel I am expected to come down firmly against the Patriot Act, however, I find myself quite torn because I think some of provisions in the Act are a good thing (like getting various intelligence agencies sharing information).

Did law enforcement have the tools they needed before 9/11? Review a speech by President Bush from 2001. He says they didn't.

Where is the balance to draw between liberty and security? The Cato Institute has an article, dating from September 18, 2001, that argues: "the answer is not to sacrifice the civil liberties of citizens to safeguard citizens from terrorists' atrocities."

Can we prevent terrorism, without sacrificing civil liberties?

Sunday, January 01, 2006

New Year's Resolution: Protect your privacy

Chris Hoofnagle offers some great tips on protecting your privacy. Some I've done, but some sound like great new year resolutions.

Top on your list should be getting all those annoying credit card offers stopped. I mean, come on, how many credit cards can you possibly take and how many do you get?

My one-year old recently got an endless supply of credit card offers from a major credit card company. The company didn't want to stop sending the offers unless I supplied them with my name, social security number, etc. I mean come on...They finally removed his name, which they had misspelled, without collecting information about me. I also didn't offer to correct their misspelling. It makes me wonder where they got it though...

Anyway, here's one example of a great suggestion from Mr. Hoofnagle:

"KEEP YOUR BANKING RECORDS PRIVATE. Under federal law, your bank can sell your account information, including your bank balances, unless to direct them not to. Call all the banks that you use and ask to opt out from all information sharing."

Happy new year everybody!