Subcommittee Assails Provisions in Patriot Act Disclosure Section

The section has saved several lives since implementation, said William Moschella, Justice Dept. asst. attorney gen.-legislative affairs. Among other incidents he cited, 2 New Yorkers were arrested for e- mailing death threats to a Detroit imam; an elderly Wis. woman, kidnaped and held for days in an unheated shed during the winter, was found. The section has also been used against suspected terrorists in the U.S. and abroad, said Willie Hulon, FBI asst. dir.-counterterrorism. “These examples make clear… that precious time would be wasted in an emergency situation if a court order or grand jury subpoena were required,” Moschella said. Rep. Lee (D-Tex.) disagreed with Moschella’s characterization, noting that as a judge in Houston she granted search warrants on the fly as late as midnight.

Sec. 212 offers a “narrow exception” for privacy protection relative to other court-approved exceptions to the 4th Amendment, said Orin Kerr, George Washington U. assoc. law prof. A former DoJ staffer, Kerr said it frustrated him when ISPs presented possible life- threatening situations and he had to tell them to go through the court order process first. He noted ISPs can disclose communications to protect their businesses: “It would be deeply troubling if the law valued the business interests of ISPs more highly than innocent human lives.” Subcommittee Chmn. Coble (R-N.C.) seconded Kerr’s point.

On the contrary, Sec. 212 is “a good idea without sufficient checks and balances,” said Jim Dempsey, Center for Democracy & Technology exec. dir. It has 3 fatal flaws: (1) No judicial approval, before or after disclosure. (2) No notice to those whose communications have been searched. (3) No consequences for bad faith actions by agents or civil remedies for the wrongfully searched. Democratic members piled on after Dempsey. Sec. 212 has “virtually no attachable oversight,” ranking member Scott (D-Va.) said. Judiciary Committee ranking member Conyers (D-Mich.), who sat in, added he recently changed his mind about whether the section could be improved, not scrapped, deciding it’s “a crack in the door for anything to happen.” He faulted it for “sidestepping the court system completely.”

The definition of “emergency” was contested hotly, with witnesses in rare agreement against subcommittee members. Joking that he'll argue for DoJ, Dempsey said “emergency” is well defined and shouldn’t distract from more serious problems with Sec. 212. “Everything’s an emergency in criminal justice,” Conyers retorted. Rep. Lee (D-Tex.) said the definition could be used “for any myriad of random, reckless activities,” recalling the “fishnets” used to round up African-Americans in the pre- civil rights era on similar grounds. Moschella quoted the emergency definition in the statute: “Immediate danger of death or serious injury.” Rep. Feeney (R-Fla.) questioned Moschella and Hulon over whether victims in cited cases would have died without Sec. 212. Moschella responded he couldn’t speak with “metaphysical certainty,” but the victims in the cases were in life-threatening situations when found using the provisions. Rep. Lungren (R-Cal.) agreed with Moschella, saying “it seems you can’t get much narrower” than the quoted definition.

Just how voluntary ISP disclosure is in practice was debated. “The service provider is going to be predisposed to make that disclosure,” since under the provision it can’t be sued for wrongful disclosure in an emergency and customers will never know they were searched, Dempsey said. The govt. also might contact ISPs with “exaggerated” claims about an emergency, he added. “Privacy is good business” for ISPs, Kerr countered, noting they have been sued before for wrongful disclosure outside life-and-limb issues and won’t turn records over lightly.

Members were skeptical law enforcement agents always would use their Sec. 212 authority properly. After Hulon said he wasn’t aware of any reprimands against agents who gave false affidavits, Rep. Flake (R-Ariz.) cited a pre- Patriot Act instance in which an agent was found to have submitted false affidavits in a Foreign Intelligence Surveillance Act (FISA) court. Flake was incredulous that “you're unable to tell us if that agent was ever disciplined.” Rep. Delahunt (D-Mass.) said govt. agencies have a “history of unacceptable conduct,” and Sec. 212’s broad authority will lead to more bad behavior. The good faith provision in Sec. 212 gives agencies an incentive not to properly train agents in privacy rules, Scott said. Agents aren’t “robots,” he added, voicing worry that information-sharing provisions in the Patriot Act might lead to politically embarrassing “juicy stuff” from Sec. 212 searches making the rounds at agencies. Hulon assured Scott that strict agency rules govern information sharing.

Dempsey criticized DoJ for an all-or-nothing mentality on provisions in Sec. 212: “Just because there’s an emergency doesn’t mean you have to dispense with the other protections.” Flake asked Moschella if DoJ would be open to separate congressional debates and votes on each Sec. 212 provision. Moschella declined to answer. Flake said DoJ would be more credible “if there was a little more give and take” on each provision. He added the sunset provisions are integral to his vote for the Patriot Act.

Kerr proposed a statutory “suppression remedy” -- requiring notice after criminal charges are brought, and permitting defendants to challenge govt. actions after the fact -- as a compromise on Sec. 212. Dempsey noted DoJ once supported such a remedy as an extension of wiretap laws. Moschella challenged the suggestion, saying it “would defeat the truth-seeking nature” of an investigation.