Friday, January 13, 2006

Section 805: Material Support

The intent of Section 805 of the Patriot Act is to prohibit material support or resources to any organization that the Secretary of State has designated as a foreign terrorist organization.

18 U.S.C. 2339B prohibits "providing material support or resources" to an organization the Secretary of State has designated as a "foreign terrorist organization." The material support ban was first passed as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The provision’s purpose is to deny terrorist groups the ingredients necessary for planning and carrying out attacks. Congress was concerned that terrorist organizations with charitable or humanitarian arms were raising funds within the United States that could then be used to further their terrorist activities. The provision outlawed any support to these groups, irrespective of whether that support was intended for humanitarian purposes.

The antiterrorism law, passed in 1996, passed as the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The purpose of the provision is to deny resources to terrorist groups. Section 805 made it illegal to support terrorist groups. Section 805 in the Patriot Act extended the ban to expert advice or assistance.

According to NPR, many legal scholars, and some judges, contend that the provision is vague. The fear is that the provision will lead to guilt by association and criminalize inadvertent association with a terrorist group. Opponents to the provision argue that it stifles free speech

In 2003, Sami al-Hussayen, a student at the University of Idaho, was arrested and prosecuted under section 805 of the Patriot Act. Al-Hussayen was charged because of his work as a Web master for the Islamic Assembly of North America. His duties included supplying Web links to speeches by prominent Muslim scholars. Some of those links advocated criminal activity and suicide operations.

The jury found al-Hussayen not guilty on all the terrorism charges.

ALA plans Patriot Act FOIA request

ALA is going to file FOIA requests to determine if the FBI has been investigating any of the leadership in ALA due to opposition some provisions of the Patriot Act.

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Thursday, January 12, 2006

Cell Phone Privacy for Sale

According to CBS,you can go online and buy other people's phone records. According to Chris Hoofnagle of EPIC, "These records are even being purchased on police officers and FBI agents." One business owner whose companies sell these records pointed out that these logs can help track down dead-beat parents, criminals, and run aways. However, this sort of information could also be abused by estranged spouses or stalkers.

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Wednesday, January 11, 2006

Pen Registers, Trap and Trace Devices, Oh My!

Pen registers have been around for a while. A pen register is defined as a device that allows law enforcement to track outgoing calls on a particular phone.

In 1979, despite strong dissenting opinions, five members of the Supreme Court ruled in Smith v. Maryland that the Constitution does not require the police to obtain a warrant for a pen register. The dissenting concerns of Justices Stewart:

"noted that pen registers "reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life." Justice Thurgood Marshall agreed, saying, "Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts." "

An independent judge evaluates Government requests to grant Pen Register Orders. The accepted standard for a pen register order is that the order must be relevant to an ongoing criminal investigation. The courts have concluded that the Fourth Amendment does not apply to pen registers or Trap and Trace Orders. Basically this means that the Government does not need to demonstrate probable cause.

According to Smith v. Maryland, the numbers dialed into a phone at home is not private as the numerical information is conveyed to the phone company. The court held that the phone company records this information for “legitimate business purposes.”

According to a Harvard website:

“The Court has not yet held that the content of those communications may be revealed without violating the Fourth Amendment. One could imagine, for example, an extension of the Smith rationale that the user knows when he dials he “conveys numerical information to the phone company” because he is using the phone company’s switching systems. Presumably, the user also knows that when he speaks, he is using the phone company’s lines and switching stations since the user must speak using the communication devices of his telephone service provider. However, The key distinction between (1) the “content” of the communication and (2) the telephone numbers dialed, time, length and date of call, has led one commentator to coin the phrase “communication attributes” to describe the latter. We will rely on this distinction as we consider the treatment of cyberspace communications.”

In 1996, law enforcement agencies in the U.S. Department of Justice obtained 4,569 pen register or trap and trace orders, authorizing the interception of dialed number information on the telephone facilities of 10,520 people. These statistics cover only the law enforcement agencies of the U.S. Department of Justice, not including other federal law enforcement agencies or state and local police (Source).

Worth noting is that the USA PATRIOT Improvement and Reauthorization Act Of 2005 contains a Section 126, inserted by the House, that requires the Attorney General to submit a report to Congress "on any initiative of the Department of Justice that uses or is intended to develop pattern-based data-mining technology."

The bottom line is that you should not expect any number you dial into your home phone to be private. There have also been reports that the NSA has the capability to monitor the actual content of a large scale of phone numbers as well. Most recently, a former employee of the NSA (Russell Tice) alledges that the number of Americans subject to eavedropping by the NSA could be in the millions. According to a recent ABC news story:

"That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.

The same day The New York Times broke the story of the NSA eavesdropping without warrants, Tice surfaced as a whistleblower in the agency. He told ABC News that he was a source for the Times' reporters."

Tice's credibility may come into question as he was recently let go from the NSA. I expect other reports may come up that shed more light on his possible motives for whistle blowing.

Clearly the Patriot Act expands law enforcement's ability to utilize tools at their disposal. The question becomes what picture is painted about you and would you ever know about it?

If you are interested in pen registers, here's some more information:

Tuesday, January 10, 2006

Senators tout safeguards in Patriot Act 'conference report'

The Patriot Act has received quite a bit of criticism of late, particularly after news that President Bush sanctioned secret wiretapping of US citizens without any type of warrants.

The President and Justice Department has been campaigning for politicians to renew the Patriot Act. In December, the Senate initiated a filibuster that has delayed a final vote on the bill for one month (with a February 3 expiration date).

According to a CNET article:

"Anticipating further discussion, Rep. Jim Sensenbrenner, the Wisconsin Republican who has led the House's Patriot Act reauthorization efforts, announced last week that he would begin 'highlighting many of the dozens of civil liberties protections contained in the conference report that are not contained in current law.' "

If you missed the conference report, check it out here. Also worth a read is the joint statement from the House and Senate about the conference report.

What does your Senator say?

As more and more people are weighing in on what they think about the Patriot Act, why not find out what your senator is saying?

According to the Lincoln Journal Star, my Senator, Chuck Hagel, says:

"The greatest threat to freedom always is concentration of power in government," declared Sen. Chuck Hagel to explain his support for renegotiation of a bill renewing portions of the Patriot Act (LJS, Dec. 15). Hagel’s stand reflects a growing willingness among many to express their reservations about the Patriot Act."

If you haven't already done so, please consider writing your Senator.

Monday, January 09, 2006

Alito Confirmation Hearings

Samuel Alito’s Supreme court confirmation hearings began today (you can watch them live on CSPAN). The limits of presidential powers, especially in wartime and on national security issues, are likely to be raised.

Many senators want to know how Alito, who in the past has advocated for presidential powers, weighs in on on President Bush's administration.

"There is no question that the question of executive powers in time of war and in the context of the terrorist threat will be central to the Alito hearings," Sen. Russ Feingold, D-Wis., said last week (quoted in the Sacramento Bee).

I would expect Alito’s nomination will not be in jeopardy with the Republican-led Senate, even if some Democrats try to filibuster. Alito has been endorsed by The American Bar Association, The U.S. Chamber of Commerce, and has strong GOP support.

Despite GOP support, lawmakers from both sides of the aisle will likely question Alito about his views and writings on presidential executive powers and national security issues, as well as traditional hot topics such as abortion.

According to the Sacramento Bee:

"He should be asked about his views of executive powers in times of war, what role the Congress has, what role the courts have," Sen. Lindsey Graham, R-S.C., also a Judiciary Committee member, said in an interview Friday. "If he says, 'During a time of war the president can set aside any law on the books as commander in chief,' that would be a very extreme, absurd view of the law. Something short of that probably would not bother me."

For selected resources by and about Alito, check out the Library of Congress Law Library Reading Room. NPR lists some of his notable rulings.

(Image from The Washington Post)

Sunday, January 08, 2006

Poll about court-ordered wiretaps

According to a news story called Poll: Most Want Court OK for Gov't Taps by Katherine Shrader, most Americans want wiretaps. The poll results are actually quite close, however, and given the margin of error, there may not be that much of a difference at all.

The AP-Ipsos poll says that 56% of respondents said the Government should have to obtain court warrants prior to listening in on overseas calls and e-mails of US citizens. 42% did not believe that court approval was necessary.

If the poll results accurately reflect the larger population it gets very interesting when looked at by age. About two-thirds of those between age 18 to 29 believe warrants should be required, while people 65 and older are evenly divided. According to the article: "almost three-fourths of Democrats and one-third of Republicans want to require court warrants."

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CSPAN discussion on wiretapping, terrorism, and more

This morning, CSPAN Washington Journal hosted a discussion that includes Ruth Connif, Political Editor, The Progressive and Mona Charen, Syndicated Columnist. If you missed it, you can watch it online.

Ruth Connif is the liberal voice and Mona Charen the conservative. Both had pretty good points. Connif argued that the Government should get a warrant and have 72 hours after they start surveillance to obtain one. Charen argued that this simply is not realistic based on the amount of surveillance the Government has to do if they want to fight a war on terror.

There were any new arguments brought up in the discussion, but an eloquent restating of comments we've heard previously. Such as conservatives seeking to give President Bush the presidential powers he needs for the war on terrorism, liberals accusing conservatives of stomping all over the constitution, and conservatives alledging that liberals are extending due process to foreign nationals who might have connections to terrorism.

A couple of callers to the show commented they knew their calls were being monitored because of clicking on the line. I agree with Connif that these type of calls just demonstrate a lack of trust in the Government. If you think your phone is being monitored, check out Wiretapping/Eavesdropping on Telephone Conversations: Is There Cause for Concern?

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