While I am fully behind the War on Terror, I am absolutely against the War on Americans that is Patriot Act 2. So is law professor Anita Ramasastry:
- 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.
….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.
….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.”
….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.
….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.”
….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 felony he is committing, or attempting to commit.
….Notably, the federal felony 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.
….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.
….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. [Findlaw]
I vote no. I am not willing to give up my way of life to make it easier for the government to track down potential terrorists. They have the tools they need to do the job right now – they just need to use them efficiently.