ACLU Demands Surveillance Data

The American Civil Liberties Union and two other groups filed an expedited Freedom of Information Act request Wednesday demanding that the U.S. Department of Justice release data about its domestic surveillance activities.

"The groups are concerned the Bush administration may be trampling the rights of innocent Americans under the aegis of conducting the war on terrorism. The request asks for government data in 14 categories of agency records, including "sneak and peak" searches of private residences without prior consent, searches of public library and bookstore records and authorizations for wiretaps of phone calls and electronic mail."

For those not familiar with "sneak and peak" searches, Section 213 of the newly enacted Patriot Act allows the police to enter and search a home without telling anyone they have done so, seriously undermining the Fourth Amendment and one’s ability to mount a fourth amendment challenge to the search or any other kind of defense.

Section 213 is not limited to terrorism investigations. It applies to the search and seizure of any property or material pursuant to a search warrant “that constitutes evidence of a criminal offense in violation of the laws of the United States.”

There is no sunset provision for this section.

Specifically, this section authorizes surreptitious search warrants and seizures upon a showing of “reasonable necessity” and eliminates the requirement of Rule 41 of the Federal Rules of Criminal Procedure that immediate notification of seized items be provided.

Delayed rather than immediate notification is authorized if the Court finds reasonable cause to believe that immediate notification may have an adverse effect, such as by jeopardizing an investigation. In such event, notice must be given within a “reasonable time.” While federal statutes (Title III) authorize delayed notice of interceptions of wire and oral communications, there has never been a corresponding provision authorizing secret searches for physical evidence.

Section 215 of the Patriot Act greatly expands the record searching authority of the F.B.I. Instead of being limited to travel-related businesses, the F.B.I. now may access all documents and things maintained by all businesses. The type of sensitive information that can be disclosed under Section 215 includes “medical records, mental health records, financial records, video rental records, fingerprints, DNA samples from a person's hair, employment records, records of employment-based drug testing, and immigration records maintained by non-profit agencies. “ Here are more details by the ACLU.

Section 215 does not require the person from whom the records are sought to be the agent of a foreign power. It requires the judge to rubber stamp his or her approval of a request made of any person or business to produce any books, records, documents or items, so long as the F.B.I. submits an application certifying that the request is made in connection with a foreign intelligence investigation, or an investigation to protect against international terrorism or clandestine intelligence activities.

Under prior law, much of the information covered by Section 215 was protected by privacy legislation, such as the Right to Financial Privacy Act, which was enacted with the intent of protecting highly sensitive information. Section 215 will take precedence over such statutes and eviscerate such privacy interests.

Persons receiving orders under this section are effectively gagged and may not disclose that they have been served. The person or business whose records are obtained is not notified. There is no requirement as existed under prior law that law enforcement be conducting a criminal investigation before seeking access to the records. There is no reporting requirement to the Court or Congress of the actual documents seized or their relevancy. Only the number of applications sought and granted must be reported.

If you aren't notified of the search, and you don't know the search even happened, how are you going to challenge it?

The Patriot Act was passed in haste, without adequate time for review by Congress. It is a bad law that infringes upon the freedoms of law-abiding Americans without giving us any assurance it will make us any safer.

Attorney General Ashcroft should quit monkeying around and turn over the requested documents to Congress--and the ACLU and others who ask for them under the Freedom of Information Act. Let us see how and against whom these new powers have been used so far.

Update: A terrific August 23, 2002 San Francisco Chronicle Editorial on the issue.

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