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The Patriot Act: Business Balks

Las Vegas Mayor Oscar B. Goodman loves to remind visitors of Sin City's oh-so-discreet tagline: "What happens in Vegas stays in Vegas." But since the New Year's celebrations ringing in 2004, he has had to modify the motto. Fearing a terrorist attack, the FBI descended on casinos, car rental agencies, storage warehouses, and other Las Vegas businesses with sheaves of "national security letters" demanding financial records covering about 1 million revelers. Startled business owners who questioned the action were told they had one choice: cough up their documents or wind up in court. Now, a somber Mayor Goodman acknowledges, what happens in Vegas may end up staying in an FBI computer. "It's Kafkaesque," he says. "The central component to our economy is privacy protection. People are here to have a good time and don't want to worry about the government knowing their business." The FBI carried out its document hunt under the Patriot Act, the anti-terrorism law passed hurriedly in the aftermath of September 11. The act allows investigators to demand that businesses turn over sensitive financial records, without specifying the investigation's target or why the files are needed. The outfit receiving a letter is permanently gagged, prohibited by law from ever disclosing that the feds came calling. Indeed, the statute is silent on whether company officials who receive an order can call a lawyer or appeal to a judge -- although the Justice Dept. says it always allows businesses to seek legal recourse, behind closed doors and without the person appealing present. "Businesses want to cooperate in the war on terrorism, but this type of unchecked government power goes a little over the line," says Bob Shepler, director of corporate finance at the National Association of Manufacturers (NAM). With most provisions of the Patriot Act due to expire at yearend, the Administration has been urging Congress to make its temporary police powers permanent. But an odd coalition is trying to scale back the government's reach -- and it may be making headway. On Nov. 9, word came from Capitol Hill that the rising chorus of civil liberties complaints could produce a deal to temper some of the law's more intrusive features. THOUSANDS OF LETTERS. If that happens, corporate interests can notch up part of the victory to savvy lobbying. Concerned about the circumvention of due process guarantees -- and about hefty compliance costs -- a half-dozen prominent business groups have joined with the American Civil Liberties Union to push Congress to narrow the law's scope. What's surprising in today's with-me-or-against-me Washington is that the coalition includes such Bush allies as NAM, the U.S. Chamber of Commerce, and the National Association of Realtors....

The FBI's Secret Scrutiny

The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said. Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away. Christian, who manages digital records for three dozen Connecticut libraries, said in an affidavit that he configures his system for privacy. But the vendors of the software he operates said their databases can reveal the Web sites that visitors browse, the e-mail accounts they open and the books they borrow. Christian refused to hand over those records, and his employer, Library Connection Inc., filed suit for the right to protest the FBI demand in public. The Washington Post established their identities -- still under seal in the U.S. Court of Appeals for the 2nd Circuit -- by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand. The Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act, which marked its fourth anniversary on Oct. 26. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies. Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot. The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined....

Congress May Curb Some Patriot Act Powers

Congress is moving to curb some of the police powers it gave the Bush administration after the Sept. 11 terrorist attacks, including imposing new restrictions on the FBI's access to private phone and financial records. A budding House-Senate deal on the expiring USA Patriot Act includes new limits on federal law enforcement powers and rejects the Bush administration's request to grant the FBI authority to get administrative subpoenas for wiretaps and other covert devices without a judge's approval. Even with the changes, however, every part of the law set to expire Dec. 31 would be reauthorized and most of those provisions would become permanent. Under the agreement, for the first time since the act became law, judges would get the authority to reject national security letters giving the government secret access to people's phone and e-mail records, financial data and favorite Internet sites. Holders of such information — such as banks and Internet providers — could challenge the letters in court for the first time, said congressional aides involved in merging separate, earlier-passed House and Senate bills reauthorizing the expiring Patriot Act. The aides spoke on condition of anonymity because the panel has not begun deliberations. Under the 2001 law, the FBI reportedly has been issuing about 30,000 national security letters annually, a hundred-fold increase since the 1970s, when they first came into existence under the Foreign Intelligence Surveillance Act....

FBI may be checking on you, but you have no way to know

These days, Americans suspected of no wrongdoing can suddenly find themselves caught up in FBI surveillance operations. It's as easy as saying "national security letter." Using this little-noticed but potent tool, the FBI can demand, for example, that an Internet provider, bank or phone company turn over records of who you call and e-mail, which websites you visit, how much you spend, where you work, fly and vacation, and much more. No judge has to approve the demand, a common check required on more typical subpoenas. You'd never learn about the secret intrusion, either. It's all classified. The public got a rare and troubling glimpse behind this curtain when The Washington Post reported Sunday that the FBI now issues thousands of National Security Letters a year. Each can seek many records on many people. According to The Post and government documents, the Bush administration has quietly rewritten Justice Department rules so it can keep records indefinitely, even when they prove irrelevant to an investigation. The government can also share the records broadly, enabling the FBI to build what amounts to electronic dossiers on untold numbers of Americans. The report added to a growing bipartisan backlash against several intrusive tools in the USA Patriot Act, which was rushed into law shortly after 9/11 to help combat terrorism. Because the process is largely hidden from the public, Congress and the judiciary, there is no broad assessment of how the tools are applied. But the few cases that have struggled into the light suggest extensive, secret intrusion into the lives of law-abiding people....

Safeguards are in place

The Justice Department cannot secure our nation against terrorist attack unless investigators are equipped with tools that allow them to disrupt plots before they can be carried out. These same tools must protect civil liberties. National Security Letters (NSLs) satisfy both requirements. In national security investigations, the FBI must follow up on every tip and every threat. The American people demand as much. NSLs, which predate the USA Patriot Act, enable the FBI to do so quickly and unobtrusively. An NSL is simply a request for information. It does not authorize the FBI to conduct a search or make a seizure. If the recipient of an NSL declines to produce the requested information, the FBI cannot compel him to do so; only a federal court has that authority. NSLs are subject to two other important limitations. First, the FBI may issue them only to obtain information relevant to an international terrorism or espionage investigation. They are not available in criminal investigations or domestic terrorism investigations. Second, they may be used only to obtain narrow categories of information. For example, the FBI may obtain credit-card billing records to attempt to learn the identity of a terrorist suspect....

Feds' Net-wiretap order set to kick in

On Monday, the clock starts ticking for broadband and Net-phone providers to make it easier for law enforcement to conduct surveillance on users of their networks. According to a final order issued by the Federal Communications Commission in late September, all broadband Internet service providers and many Voice over Internet Protocol, or VoIP, companies will have 18 months--until spring 2007--to ensure their systems have backdoors that allow police to eavesdrop on their customers' communications for investigative purposes. The 59-page order (click for PDF) followed years of pressure from the FBI, the Justice Department and the Drug Enforcement Administration. It would broaden the Communications Assistance for Law Enforcement Act (CALEA), an 11-year-old wiretapping law that currently applies only to "telecommunications carriers." The FCC has justified the expansion on the basis of terrorism and homeland security concerns, echoing Bush administration officials who have warned, for example, of the perils of VoIP services in rogue hands. But even as the order kicks in, it remains unclear exactly what classes of providers within those broad categories must comply with the new rules or what exactly they must do to achieve compliance. The FCC said in its original order that it reached "no conclusions" about whether universities, research institutions, and small or rural broadband providers should be subject the requirements. It sought comments on that topic through subsequent FCC notice. The deadline for receiving that initial round of suggestions also happens to be Monday. Meanwhile, preliminary legal challenges to the rules linger. The first one came from the American Council on Education, which has said universities and research institutions deserve to be exempted from the regulations because the changes required are too expensive and would prompt inevitable tuition hikes. A day later, a coalition of groups, including the Center for Democracy and Technology and the VoIP company Pulver.com, issued their own one-page notice of appeal. They intend to argue that Congress never intended for CALEA to apply to the Internet and that the FCC has stepped outside its bounds....

Senate Approves Plan to Limit Detainee Access to Courts

The Senate endorsed a plan yesterday that would sharply limit suspected foreign terrorists' access to U.S. courts, an effort to overturn a landmark 2004 Supreme Court ruling that has allowed hundreds of detainees held by the military at Guantanamo Bay, Cuba, to challenge their detentions. At the same time, the proposal would give Congress some oversight of the military process set up to review whether Guantanamo Bay detainees are terrorists and should continue to be held. The measure would subject those tribunal decisions to limited review by the U.S. Court of Appeals for the District of Columbia. Approval of the plan, sponsored by Sen. Lindsey O. Graham (R-S.C.) and endorsed 49 to 42 mostly along party lines, marks a partial but significant victory for the Bush administration, which has argued that suspected enemy combatants overseas cannot challenge their confinement in U.S. courts. But the administration has also argued that all matters related to the detention and interrogation of suspected terrorists should be left to President Bush. The amendment to a defense authorization bill was endorsed three days after the Supreme Court announced it would rule on the legality of military commissions to try Guantanamo Bay detainees, setting up what could be one of the most important rulings on presidential war powers since World War II. The vote also came amid ongoing debate in Congress over a proposal by Sen. John McCain (R-Ariz.) to ban cruel, degrading and inhumane treatment of U.S. detainees....

CIA asks Justice Dept. to review prisons report

The CIA has sent a report to the U.S. Justice Department indicating classified information may have been leaked to The Washington Post for its recent story about secret prisons run by the spy agency, according to U.S. officials. The newspaper reported last week that the CIA was holding top suspected al Qaeda terrorists at undisclosed prisons in eastern Europe and other locations. The Justice Department refused to confirm or deny a referral was made. The action by the CIA general counsel was taken immediately after the Washington Post article was published, an official said. It is similar to one taken when covert officer Valerie Plame's name was made public in an article written by a syndicated columnist. By law, when there is the possibility that classified information has been leaked, the CIA is required to inform the Justice Department, which generally launches an investigation into the matter. Earlier Tuesday, Republican congressional leaders asked for an investigation into the matter, and Sen. Trent Lott of Mississippi suggested his own GOP colleagues could be to blame for the possible leak. Sen. Bill Frist of Tennessee, the Senate majority leader, and Rep. Dennis Hastert of Illinois, the House speaker, asked the chairmen of the House and Senate intelligence committees to look into the report, saying the disclosure could damage national security....

Now We’re Getting Somewhere: A silver lining in a gun ban

Who wrote the following? "[I]t is possible that once residents gave up their handguns, San Francisco would be seen as an easy hunting ground for criminals who have no intention of giving up their own pistols." Is it the NRA claiming that gun laws disarm law-abiding citizens and not criminals? No. Amazingly enough it was the San Francisco Chronicle, one of the more liberal newspapers in the U.S., in an editorial arguing against Proposition H, the initiative that passed on Tuesday to ban handguns in the city. Yet, despite this reasonableness, the initiative passed with a safe margin, 58 percent of the vote. Perhaps that isn't very surprising in a city where a proposition banning military recruiters at public high schools and colleges got even more support and almost 80 percent voted against parental notification for minors getting abortions. Ultimately, though, the vote didn't mean much of anything. As San Francisco's Mayor, Gavin Newsom, a strong supporter of gun control, said, the ban "clearly will be thrown out [in court]... It's really just a public opinion poll at the end of the day." State law prohibits local jurisdictions from enacting such a ban, and an even weaker law requiring handgun registration that was enacted by the San Francisco County Board of Supervisors in 1982 was thrown out by the California state supreme court. The silver lining was how forcefully many organizations such as the police came out against the gun ban. Besides discussing the increases in murder occurring in Washington, D.C. after it instituted a handgun ban, the officers stated: "When we disarm honest, law-abiding citizens, we contribute to empowering criminals and endangering society-at-large." They directly acknowledged how important it was for people to be able to defend themselves with a handgun when the police couldn't be there....

Fired professor gets gun license, collection back

A fired Westchester Community College instructor waging a free-speech battle against college officials is no danger to them or anyone else and may have a gun license, a judge has ruled in White Plains. Patrick Munroe's gun collection was seized after a pair of arrests on trespassing and harassment charges at the college in early 2004. The county moved to revoke Munroe's pistol license, but Westchester County Judge Barbara Zambelli denied the motion last week and ordered the county to return his guns. "Before this application was filed, he held a pistol license for more than 32 years without incident," Zambelli wrote of Munroe, a former Sleepy Hollow village trustee. "His writings provided to the Court by the County are primarily satirical, and any attempt to characterize them as threats must be based on misinterpretation."....

Tracking phones for traffic reports

Some U.S. states prohibit drivers from talking on hand-held cellphones lest they become distracted, slow down traffic or, worse, cause an accident. Others are finding that cellphones and driving might not make such a bad mix. Several state transportation agencies, including those in Maryland and Virginia, are beginning to test technology that allows them to monitor traffic by tracking cellphone signals and mapping them against road grids. The technology highlights how readily cellphones can become tracking devices for companies or government agencies - a development that troubles privacy advocates. These new traffic systems can monitor several hundred thousand cellphones at once. The phones need only be turned on, not in use. And sophisticated software now makes it possible to discern whether a signal is coming from, say, a moving car or a pedestrian. State officials say the systems will monitor large clusters of phones, not individual phones, and the benefits could be substantial. By providing a constantly updated picture of traffic flow across thousands of miles of highways, they argue, cellphone tracking can help transportation agencies spot congestion and divert drivers by issuing alerts by radio or on electronic road signs....

IBM calls for global identity management solution

The growing need for fast, accurate verification of personal identities has prompted a call from an industry observer for a global agency to set international standards. The realm of identity and access management (IAM) is heating up as nations like the UK and the US increase their use of biometrics and other identifying technology in ID cards, border controls and other areas. Beyond different governments "trying to create a mosaic for what they want as good identity management", wider international cooperation is needed to establish a common language and standards, said Cal Slemp, vice-president and global leader for security and privacy services at IBM Global Services. The common language for exchanging user access information is also known as federated IAM. "Governments have a huge part to play in this, because they have ultimate responsibility for their citizens, and depending on the country, they may have ultimate responsibility for the businesses and e-commerce as well," Slemp said....