Patriot II: The Sequel Why It's Even Scarier than the First Patriot Act

[Dave Farber <dave () farber net>]

   http://writ.findlaw.com/ramasastry/20030217.html
 
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Patriot II:
The Sequel Why It's Even Scarier than the First Patriot Act
By ANITA RAMASASTRY
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Monday, Feb. 17, 2003


Soon after the terrorist acts of September 11, Congress passed the USA
Patriot Act, which conferred broad new powers upon the federal government.
Now John Ashcroft and his scribes at the Justice Department have been
working secretly to create new, 120-page draft legislation that, if enacted,
would expand greatly upon these already sweeping powers.

This daring sequel to the USA Patriot Act is known internally as the
Domestic Security Enhancement Act. It is also nicknamed Patriot II (the name
by which I'll refer to it here), or Son of Patriot. On February 7 of this
year, a January 9 draft of Patriot II was revealed to the public - but not
by the government. It was made public only through a leak.

Even Congress itself, strikingly, appears to have played little or no part
in Patriot II's drafting (though it seems that Speaker of the House Hastert
was, at least, given the opportunity to review the draft last month, as was
Vice President Cheney.).

Perhaps the Bush Administration is looking to repeat its experience with the
original USA Patriot Act. Amidst the emotional turmoil after September 11,
the Administration introduced the Act and got it enacted in a matter of
weeks. The Senate Judiciary Committee had only a brief, one-and-a-half-hour
hearing on the Act, in which Attorney General Ashcroft testified but took no
questions. In the House, meanwhile, there was no testimony from opponents of
the bill. 

After September 11, there was at least some rationale for this expedited
consideration. Now, however, there is far less exigency. If the introduction
of Patriot II in Congress coincides with the Iraq war, it may well be
because the Administration has planned it that way, to take advantage of
circumstances to ram the bill through both Houses quickly.

Even if Patriot II does end up being introduced in wartime, citizens and
their representatives should fight this legislation tooth and nail, for it
threatens to take even more of our liberties away. It is a wholesale assault
on privacy, free speech, and freedom of information.

Making Total Information Awareness the Law

Admiral Poindexter's proposed Total Information Awareness (TIA) program,
which sought to build data profiles of all Americans, sparked a wide public
outcry. Congress recently warned against using TIA as a tool against US
citizens. Nevertheless, Patriot II, as draft by the Attorney General and his
staff, would begin to make TIA the law.

For instance, under Patriot II, federal agents would not need a subpoena or
obtain a court order to access our consumer credit reports. This provision
would open the wedge for TIA to be implemented through a huge database. Our
credit reports are repositories of a great deal of sensitive information -
from our employment history to where we shop, borrow and transact.

To see the information, the feds would only have to certify that they will
use the information "in connection with their duties to enforce federal
law." Note that they would not have to certify that the person whose
information was accessed was suspected of terrorism, or indeed, any other
crime. And no one would be notified that their records had been accessed.
When a commercial entity requests a consumer's credit report, a note is made
in the consumer's file alerting him to this fact.

A Mandate to Collect Genetic Information

Meanwhile, not only data, but genetic information would also be collected by
the government if Patriot II were passed.

DNA would be put into a "Terrorist Identification Database." It would
contain information not only for proven terrorists, but also "suspected
terrorists." And that term would include anyone who was associated with, or
had provided money or other support for, groups designated "terrorist."

It might also include protesters, or anyone else the government dislikes.
Remember, the original USA Patriot Act defined the new crime of "domestic
terrorism" broadly, to encompass "any action that endangers human life that
is a violation of any Federal or State law."

Certainly one could envision a disruptive war protester who resisted arrest
being tagged as a "suspected domestic terrorist," and forced to provide DNA.
Would the government need to get a court order to procure the DNA? Not under
Patriot II. 

And what if the protester wouldn't comply? That would be a Class A
misdemeanor, punishable by up to one year in prison and a $100,000 fine.
Anyway, the protester's refusing to give up DNA might be futile - if any
other government agency happens to have a blood sample, Patriot II gives the
government the right to put it in the new database.

Incredibly, DNA would also be collected from anyone who is, or has been, on
probation for any crime, no matter how minor. State governments would be
required to collect DNA samples from state probationers and provide them to
the federal government.

Increasing Surveillance Powers

Database surveillance, under Patriot II, would also be combined with
increased active surveillance of citizens.

To assess the change, it's important to remember that the Patriot Act itself
already greatly expanded surveillance powers. Now Patriot II would, if
enacted, makes it even easier for the government to engage in surveillance
of U.S. citizens, without having to establish traditional probable cause
under the Fourth Amendment. It would do so by making it easier for law
enforcement to avail itself of the Foreign Intelligence Surveillance Court,
which issues warrants more easily than federal district courts will.  

The FISA Court is meant to address international terrorism, involving mostly
noncitizens. Patriot II, however collapses the distinction between domestic
and international terrorism, treating wholly domestic criminal acts as
subject to the same, looser legal rules that apply to foreign intelligence
gathering. 

Remember, domestic terrorism is defined very broadly as  "any action that
endangers human life that is a violation of any Federal or State law." That
means anything from getting into a raucous bar fight, to driving recklessly
over the state speed limit, could theoretically count. And if the government
finds a particular person suspicious, they could cite law violations as far
from terrorism as these as a valid excuse for surveillance.

Worse, even those persons who cannot be deemed "domestic terrorists" because
they have not broken any law, can alternatively be deemed "foreign powers"
under Patriot II - even if they are American citizens or permanent
residents. This allows the FBI to get pen registers on American citizens for
a foreign intelligence investigation - without having to show any criminal
or terrorist connection.


Gagging American Citizens and Cutting Off Their Rights to Sue

If you don't like the government's policies, including these, Patriot II
says: Too bad. Don't try to make a federal case out of it - we'll bar you at
the courthouse door.

What if you're lucky enough discover that you've been illegally spied on, in
violation of your Fourth Amendment rights? Too bad. Patriot II would provide
immunity from liability to law enforcement engaging in spying operations
against the American people. The proposed act provides a defense for federal
agents who engage unauthorized searches and surveillances relating to
foreign intelligence when they are acting "pursuant to a lawful
authorization from the President or the Attorney General."

What if a disgruntled business competitor chooses to falsely claim to the
government that you're a "suspected terrorist"? Again, too bad. Don't
consider suing the competitor, no matter what consequences ensure Patriot II
eliminates civil liability for businesses and employees that report
"suspected terrorists" to the federal government, no matter how malicious or
unfounded the tip may be.

Like TIA, Operation TIPS - which would have enlisted government employees to
spy on citizens - elicited public outcry. But this is TIPS all over again.
If they like, your package courier or cable guy can report you to the feds
with impunity.

Broadly Criminalizing Encryption of Evidence

Meanwhile, in your search for a shred of privacy that might remain to you,
don't even think about trying to protect your email. Under Patriot II, the
government may go after you for that, too.

Specifically, Patriot II, as currently drafted, would makes it a new,
separate crime to use encryption in the commission of another crime. To be
convicted, the defendant must be shown to have "knowingly and willfully
use[d] encryption technology to conceal any incriminating communication"
relating to a federal crime he is committing, or attempting to commit.

The "federal crime" limitation may seem significant, until you realize that
"domestic terrorism" - which can be based on a state law violation - is a
federal crime. Remember, too, how loosely "domestic terrorism" is defined,
in a way that could encompass a protester's resisting arrest, and if you do,
you may reasonably fear using encryption even if you are not engaged in any
criminal activity at all.

What if your encrypted email about protest planning is deemed "incriminating
evidence" of your plan to resist arrest at the protest? You could be looking
at five to ten.

The penalty for this offense alone would be up to ten years in prison. In
addition, a Justice Department analysis included with the proposal suggests
that the illegal encrypting ought to carry a mandatory minimum term of five
years in prison. 

Notably, the federal crime relating to the "incriminating communication"
need not be an act of terrorism. It could be any federal crime, from the
most major to the most minor, the most violent to the most excruciatingly
technical. And that's frightening.

For instance, if a peer-to-peer website's users swap files, thus violating
the Digital Millenium Copyright Act, and encrypt the files they are
swapping, they may automatically face five years in prison, and could serve
ten, for the encryption alone.

What is most shocking about the new encryption crime is that it is not
limited to terrorism. This is the first attempt to regulate encryption
domestically at all.

Shrouding Government Actions in Secrecy

While the government, according to Patriot II, has the right to know
virtually everything about you, you have little right to know anything about
the government.

Current grand jury secrecy rules apply only to jurors, prosecutors and
courtroom staff. Patriot II would expand them to apply to witnesses too -
meaning that ordinary citizens could not discuss their testimony with anyone
but their attorney. In theory, they'd have to keep mum even with spouses or
children, or face serious consequences.

What if they've been improperly subpoenaed in the first place? Under Patriot
II, too bad: Neither individuals nor organizations may move to try to quash
a federal grand jury subpoena.

Will the grand jury itself at least remain independent? Nope. Patriot II
allows the federal government to place gag orders on both federal and state
grand juries, and to take over the proceedings.

Detentions will be similarly shrouded in an atmosphere of dead secrecy. The
Justice Department's position on detainees is that if they are held
incommunicado indefinitely without being charged with a crime, they need not
be publicly identified. Patriot II would make that dubious position the law.

Meanwhile, if you do happen to somehow find out the identity or whereabouts
of - or anything else about - a detainee, it would be criminal under Patriot
II to reveal it. And that's the case even if you are the detainee's parent,
spouse, or child. 

Okay, you might ask, this is a lot of secrecy, but isn't it at least
somewhat limited? Can't I at least use the Freedom of Information Act (FOIA)
to figure out what the government is doing when it's not secretly detaining
people, or secretly conducting grand jury proceedings?

No. Under Patriot II, FOIA would not extend to information "specifically
exempted from disclosure by statute." What kind of statutes? Well, the USA
Patriot Act might be one. Patriot II might be another.

It's a clever strategy: Collect private information. And then when citizens
try to find out what you've collected, cite their own privacy right back at
them as a reason not to divulge it.

If it seems farfetched to think the government could invoke privacy in this
instance, consider that Ashcroft actually cited detainees' privacy as a
reason not to release their names to the press, the public, or even their
families. 

Denaturalization: The Citizenship Death Penalty

In sum, Patriot II puts in jeopardy the First Amendment right to speak
freely, statutory and common law rights to privacy, the right to go to court
to challenge government illegality, and the Fourth Amendment right against
unreasonable searches and seizures. But that's not all.

It also puts in jeopardy perhaps the most basic right of all: The right to
walk the streets in safety without being "disappeared" by the government.
Chileans have not always enjoyed this right. Americans, until now, always
have. 

Suppose you, as a citizen, attended a legal protest for which one of the
hosts, unbeknownst to you, is an organization the government has listed as
terrorist. Under Patriot II, you may be deported and deemed no longer an
American citizen. 

Under Patriot II, if you are simply suspected of terrorist activity, this
can occur. More specifically, a U.S. citizen may be expatriated "if, with
the intent to relinquish his nationality, he becomes a member of, or
provides material support to, a group that the United Stated has designated
as a 'terrorist organization'."

How can you tell if the citizen wanted to relinquish citizenship? Under
Patriot II, the intent can be inferred from conduct. So any association with
even the legal activities of a designated group, plus any act that can be
interpreted as disloyal to the United States, can mean you are deported, and
no longer considered a citizen.

No Sunset Provisions for Patriot II Mean We Are Stuck with It If It Passes

The original USA Patriot Act has sunset provisions, under which the Act will
expire if not renewed in five years. Patriot II, however, does not have such
provisions. Indeed, it would go so far as to remove this important check
from the original Patriot Act. So if Congress, and the American people don't
focus carefully on Patriot II, even in the midst of impending war, we may be
stuck with both Patriot Acts indefinitely.

Especially for that reason, Congress and the public need to learn more.
Senator Patrick Leahy has argued, for instance, that before the Department
of Justice asks Congress for more powers, it needs to disclose how it is
using the ones it already has. Instead, the Department has so far repeatedly
balked at both FOIA requests from the press and the public and requests from
Congress for more detailed reporting pursuant to USA Patriot Act.

At the very least, Congress and the public should insist on a full
understanding of what the Justice Department is doing before granting the
executive branch still more authority via Patriot II .
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Anita Ramasastry is an Assistant Professor of Law at the University of
Washington School of Law in Seattle and the Associate Director of the
Shidler Center for Law, Commerce & Technology. Her prior columns on
post-September 11 terrorism-related legislation can be found in the archive
of her columns on this site. 

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