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The Protecting Rights of Individuals Act (S.1552)
Making Modest but Important Amendments to the PATRIOT Act
The Protecting Rights of Individuals Act (PRI), which was introduced by Senators Murkowski (R-AK) and Wyden (D-OR), and is supported by organizations from across the political spectrum, puts some modest checks and balances on the most troublesome provisions of the USA PATRIOT Act. The PATRIOT Act, while enacted with the best intentions and in response to a serious threat, passed under intense time pressure and without serious debate. As a result, the Executive Branch was given broad discretionary powers that, in many cases, are not needed in the fight against terrorism and serve only to infringe on Americans' fundamental liberties. Specifically, the Protecting the Rights of Individuals Act:
- Ensures that Americans' homes will not be searched in secret unless absolutely necessary. The Patriot Act significantly broadened the government's power to secretly search your home or office. The Protecting the Rights of Individuals Act limits these highly intrusive secret searches to terrorism investigations, and only allows them if revealing the search would endanger someone's life or safety, result in flight from prosecution, or result in the destruction of or tampering with evidence. It requires notice within seven days of the search, unless someone's life or physical safety would be threatened. In addition, the Attorney General must report to Congress and the public on the number of times it uses these secret searches.
- Prevents anti-abortion and anti-war protestors from being labeled "terrorists." The PATRIOT Act broadened the definition of "domestic terrorism" so much that it covers even individuals or organizations engaging in standard political protests - thereby allowing the government to use extreme antiterrorism tools like civil asset forfeiture in circumstances where those tools are not warranted. The Protecting the Rights of Individuals Act narrows the definition so that only those organizations engaged in activities that constitute a Federal crime of terrorism can be investigated as terrorists.
- Limits the FBI's ability to look at sensitive, personal information, including library and Internet records, without some specific suspicion. Under the PATRIOT Act, the FBI can get a secret court order to require any business - including libraries, bookstores, hospitals and Internet providers - to turn over entire databases of information so long as the FBI asserts the information is "sought for" an antiterrorism or counterintelligence investigation - a standard of review that effectively results in a judicial rubber stamp. The Protecting the Rights of Individuals Act requires the FBI to submit some minimal evidence that the person whose records are sought is a suspected terrorist before it can get a court order to search personal, sensitive files. And, for material protected by the First Amendment, such as library and bookstore records, the FBI must meet the Constitution's "probable cause" standard to obtain the information.
- Limits the FBI's ability to use "John Doe roving" wiretaps. The PATRIOT Act and the Intelligence Authorization Act that passed a few months later increased the FBI's ability to conduct wiretaps, resulting in the FBI being able to obtain a warrant for a wiretap without specifying either the name of the target or the telephone or computer to be tapped. The Protecting the Rights of Individuals Act allows roving taps, but requires the FBI to specify either the name of the target or the telephone or computer to be tapped.
- Increases judicial review for telephone and Internet monitoring. The PATRIOT Act expanded another "rubber stamp" provision, requiring judges with no facts to approve all government requests for certain telephone and Internet surveillance. The Protecting the Rights of Individuals Act raises the judicial review standard for this broad authority.
- Requires prior congressional approval for data mining. Several government agencies are working on "data mining" projects, seeking to review a vast array of commercial and other data in search of terrorist "patterns." No agency has demonstrated that this type of search would be an effective antiterrorism tool, and few if any privacy rules govern this type of search. The Protecting the Rights of Individuals Act puts a moratorium on these "fishing expedition" searches until Congress can evaluate both the effectiveness and privacy implications.
- Ensures that Congress and the public have basic information about the FBI's otherwise secret intelligence investigations. The Protecting the Rights of Individuals Act requires the Attorney General to report annually to Congress and the public on the number of applications for electronic surveillance made to the secret Foreign Intelligence Surveillance Act court, including the number of U.S. persons targeted and the number of specific types of orders issued and extended.
- Applies longstanding discovery procedures to evidence used in court proceedings. This provision requires that when the government uses wiretap information gathered using the intelligence rules in criminal cases, the decades-old Classified Information Procedures Act (CIPA) would apply. Under CIPA, the judge can review any sensitive material and release it to the defendant in a manner that protects classified information.
- Restores the requirement that the primary purpose of electronic surveillance and physical searches under FISA be to obtain foreign intelligence. The USA PATRIOT Act loosened the requirement that the secretive FISA surveillance rules be used only in cases where "the purpose" is to obtain foreign intelligence, so that now the FBI can use the FISA rules if intelligence gathering is a "significant purpose" of the surveillance. A significant purpose can be interpreted very broadly - and does not necessarily represent the overriding reason for an action. The main purpose for conducting searches under FISA should be to obtain foreign intelligence. S. 1552 would restore that requirement.
- Provides greater judicial review of government requests for educational records. Currently, government officials can obtain education records simply by certifying their need for them. This bill would require the government to set forth specific and articulable facts indicating the education records are relevant to its investigation.