The arrest of Lonnie David Franklin, suspected of being the "Grim Sleeper" seriel killer in Los Angeles, while being "an investigative triumph," should prompt concern about the methods police used to obtain the suspect's DNA, writes Elizabeth E. Joh in an op-ed for the Los Angeles Times.

It is during these moments -- of seemingly investigative victories -- that "can blind us to the dangers of expanding genetic surveillance," Joh, a professor of law at UC Davis School of law, maintains. Joh describes three uses of DNA evidence that were used in the Grim Sleeper case that should trigger concern for the Fourth Amendment: "familial DNA searches abandoned or discarded DNA and sweeping arrests, or DNA dragnets.

Regarding discarded DNA, Joh writes:

The second investigative technique used in the Grim Sleeper investigation was the use of ‘abandoned' or ‘discarded' DNA. We all leave DNA on used coffee cups, smoked cigarettes and many other items on a daily basis. After the police turned their focus to Franklin, undercover police followed him until he left some of his DNA on a piece of pizza as well as silverware and a glass after a meal out.

Few rules govern the circumstances in which police can collect this involuntarily shed DNA. Police typically defend the practice by saying it produces results. Of course, when successful matches are found, the unrestrained collection of abandoned DNA sounds defensible. But what about all of the hunches that police might like to pursue in this way? Have we all silently consented to giving up our discarded DNA to the police?

Joh's entire article is here. Joh recently participated in a panel discussion about the Fourth Amendment and technology's impact on the amendment's scope. Video of the panel, "Technology, Change, and the Future of the Fourth Amendment," is available here.

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By Philip K. Eure, president of the National Association for Civilian Oversight of Law Enforcement (NACOLE). Mr. Eure is also the executive director of the District of Columbia's Office of Police Complaints.

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The intense national debate following the arrest of Harvard University professor Henry Louis Gates, Jr., last July came as little surprise to independent overseers of the police. In fact, the local government agency where I work, the District of Columbia's Office of Police Complaints, had previously issued a report in 2003 questioning the inordinately high number of disorderly conduct arrests made by the city's police officers.

As Christy Lopez points out in her recently published Issue Brief, "Disorderly (mis)Conduct: The Problem with ‘Contempt of Cop' Arrests," police abuse of laws like disorderly conduct can have far-reaching consequences ranging from undermining the public's confidence in the police to the inefficient allocation of law enforcement resources. Lopez further asserts that "fixing this problem is not simple: it requires a concerted and multi-faceted effort." Independent police review agencies are uniquely positioned to tackle and, ultimately, offer comprehensive solutions to problems associated with police officers making illegal arrests for disorderly conduct and other offenses within the "contempt of cop" family, including, resisting arrest, obstructing the peace, assault on a police officer and public intoxication.

According to a 2005 U.S. Department of Justice report, approximately 64 percent of police forces in the United States with at least 1,000 officers had an external process to review at least some citizen complaints (Reaves, Brian A., Police Handling of Citizen Complaints: Data from the LEMAS Survey, Bureau of Justice Statistics/Justice Research and Statistics Association Annual Meeting, Oct. 28, 2005, St. Petersburg, Fla.). Increasingly, cities and counties with smaller law enforcement agencies are also resorting to independent review. The authority, scope and effectiveness of police oversight varies. Generally speaking, there are two different types, with some agencies combining aspects of both. The auditor or monitor model focuses on organizational problems that underlie police misconduct. Under this approach, the agency often reviews police misconduct investigations conducted by the police department's internal affairs unit and also analyze patterns and trends in citizen complaints. The investigator model resolves individual allegations of police misconduct and will lead to discipline in appropriate cases. Both models, however, possess the tools to further law enforcement accountability for contempt of cop arrests.

Regardless of the model, most oversight agencies have at their disposal some type of "policy review" authority that allows them to propose changes to police department policies and procedures, with the goal of reducing police misconduct. For example, the Office of Citizen Complaints in San Francisco persuaded the city's police department to adopt a "language access" policy governing interactions between the police and members of the public who do not have a strong command of English while the Los Angeles County Office of Independent Review has worked with the Sheriff's Department to ensure that deputies have better training and guidance on the use of Tasers.

In recent years, a few external review agencies have released studies analyzing patterns of contempt of cop arrests. Lopez discusses my agency's disorderly conduct report and the Seattle police auditor's review of arrests for obstruction. In addition, Boise's Office of the Community Ombudsman collaborated on a report in 2007 with the police department to review how that city's public intoxication law was being enforced one year after implementation. In all three cases, the review agencies offered constructive guidance on how to improve future enforcement and prevent illegal arrests.

The success of a policy recommendation is highly dependent on the independent review agency's ability to track the police department's implementation of proposals. Because of their institutional capacity to follow up with police departments and elected leaders, if necessary, citizen oversight agencies are ideally situated to see police reforms through to completion, long after a high profile story involving police misconduct has faded from the headlines. Through the issuance of annual and other public reports, members of the community and government officials can be kept apprised of the status of recommendations and whether they are being implemented.
Another feature of many citizen oversight agencies that equips them to address the abuse of disorderly conduct-like statutes is the emphasis on community outreach. Through outreach, the public can learn about the existence of disorderly conduct-type laws, police department policies in applying them and the accessibility of the oversight agency's complaint process. Several oversight agencies, including those in Austin, New York, Denver and Washington, D.C., have a dedicated staff member to coordinate outreach. And San Jose's Independent Police Auditor has published a student's guide to police practices.

Lopez rightly argues that police leaders need "to insist on accountability," particularly when some officers fail to appreciate the seriousness of making contempt of cop arrests. While retraining and discipline may be warranted in many instances, oversight agencies also have the ability to refer to the prosecutor's office cases involving illegal disorderly conduct arrests that are so egregious as to be criminal. While this approach should not be used lightly, it cannot be discounted as an option, especially where there are repeated, bad faith contempt of cop arrests made by a particular officer. The independent review agency, depending on its access to police officer records and its criminal referral authority, would have the necessary objectivity in bringing such matters to the attention of the local prosecutor.

Lopez presents a useful "roadmap for legislators, advocates, law enforcement officials, and others seeking to address" abusive arrests and other systemic patterns of police misconduct. Oversight agencies are structurally suited to address the problems - and comprehensive solutions - she identifies.

While some agencies have the ability to investigate individual instances of alleged police misconduct, almost all can issue policy recommendations, engage in outreach and refer appropriate cases for criminal prosecution. Where independent review agencies lack the authority or resources to act proactively, the public should demand stronger and better funded oversight. And where such agencies have the authority but do not devote sufficient attention to contempt of cop arrests, advocacy groups and the "overseers" of the oversight agencies, namely, the executive and legislative branches of local governments should use their clout to ensure that these issues are fully and thoughtfully addressed.

[image via wikimedia commons]

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By Jay Stanley, senior policy analyst at the American Civil Liberties Union's Speech, Privacy and Technology Program. Stanley is author of a recent Issue Brief published by ACS entitled "The Crisis in Fourth Amendment Jurisprudence."

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The privacy rights of Americans have come under a sustained assault in the past decade. In that time we have seen not only 9/11 attacks, but also a few additional, comparatively minor terrorist attacks, two wars, a constant stream of revolutionary new technologies, greatly expanded powers for our security agencies, and a relentless political drumbeat pounding on the supposed need to give those agencies even more powers to peer into our lives without due process or meaningful oversight.

Underlying all this, however, is a problem that pre-existed all of it: the fact that the Supreme Court's interpretation of the Fourth Amendment has gone badly off track. And that problem has intensified the erosion of our privacy caused by those other factors over the last 9 years.

The general consensus of a wide variety of commentators is that there are two principal problems with the Supreme Court's Fourth Amendment jurisprudence:

• The "third party doctrine," under which information shared with any third party loses all Fourth Amendment protection. Financial information held by your bank or medical information held by your doctor, for example has been exposed to a "third party," and under this doctrine is thus deemed to have been "given up" by you and therefore stripped of Fourth Amendment protection.
• The emergence of a circular standard of "reasonable expectation of privacy," under which Fourth Amendment protection only extends to those situations where an individual has an "expectation" of privacy that society is prepared to recognize as reasonable. As a result of this approach, the Fourth Amendment as it is currently interpreted provides no protection against a wide array of intrusive searches.

What's needed is a broad revival of the Fourth Amendment in American law.

There is a precedent for such a thing. Before World War I, the First Amendment was weak in much the way that the Fourth Amendment is now. People were being thrown in prison for writing letters to the editor opposing U.S. entry into the war, for example, and the Supreme Court was routinely (and unanimously) striking down to free speech defenses in the face of expression that was deemed "contrary to the public welfare" as the authorities saw it.

Americans broadly speaking considered free speech to be an American value, and pre-war America did feature a boisterous and partisan press, loud criticisms of political figures, and postal subsidies for periodicals of all persuasions. But radicals, labor organizers, and purveyors of material that was deemed socially "harmful" (including, for example, any information whatsoever about birth control) received virtually no protection in the courts.

But World War I intensified the contradiction between this general American cultural respect for diversity of opinion on the one hand, and on the other, the willingness to tolerate legal suppression of opinions that lay outside certain boundaries. The pressures provoked by the war prompted the judiciary and society to resolve that contradiction in favor of expression. It began during the war when Justices Louis Brandeis and Oliver Wendell Holmes began to dissent in free speech cases, and in the following decade and after, the high court totally reversed course on free speech. Today in America, free speech is one of our most strongly protected rights.

Meanwhile, Fourth Amendment privacy rights have been getting weaker, not stronger in recent years. As our technology evolves in directions such as "cloud computing" (the trend toward creating and storing data on third-party servers that provide convenient access from anywhere on the Internet), the weakness of Fourth Amendment jurisprudence is starting to become an even bigger problem. In fact, technology is creating a contradiction between Americans' latent expectations of privacy, and the actual amount of privacy that they are getting. As happened with the First Amendment, this contradiction may lead people to recognize that the status quo is intolerable and help push our legal system toward a more robust Fourth Amendment.

There are other sources we can look to for change:

• A vigorous line of Supreme Court dissents to key Fourth Amendment cases, which articulate the problems with current doctrines and provide the groundwork for the court to eventually shift or reverse course.
• Many U.S. states have rejected the Supreme Court's approaches to privacy law, in some cases because of state constitutions that provide more explicit privacy protections than the U.S. Constitution, but in other cases because state judges have simply gone the other way. The spread of alternative interpretations of privacy rights within the states could gain influence at the national level, as has happened before on other issues.
• Conservative justices like Justice Antonin Scalia and Clarence Thomas have taken positions on privacy issues that suggest they might be open to strengthening the Fourth Amendment in some ways, raising the possibility of the kinds of Supreme Court coalitions necessary to change the direction of federal jurisprudence.

Americans' privacy rights are taking a beating, and the situation will only worsen without a robust Fourth Amendment to protect us.

[image via mr.smashy]

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By Amanda Frost, associate professor of law, American University Washington College of Law

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Plaintiffs have won a rare victory against the government in a case involving the state secrets privilege. On April 1, 2010, Federal District Judge Vaughn Walker ruled in favor of Al-Haramain Islamic Foundation, Inc., a now-defunct Islamic charity that had sued the government for intercepting its employees' international telephone conversations without obtaining a warrant. Al-Haramain claimed the government's warrantless wiretap violated the Foreign Intelligence Surveillance Act (FISA), a federal law that limits the government's ability to eavesdrop on its citizens. The case is one of several challenging the National Security Agency's warrantless wiretapping program. The government has responded to all such lawsuits by arguing because its surveillance activities concern national security, the state secrets privilege requires dismissal of claims that it violated FISA.

Yet FISA was enacted for the very purpose of preventing the government from eavesdropping without a warrant, and it provides a mechanism by which individuals or groups who believe they have been victims of an unlawful government wiretap can seek redress in the courts even when the claim relies on classified evidence. Under FISA, if a plaintiff establishes a "colorable basis" for believing that it has been subject to unlawful surveillance, the Court can then examine classified evidence in camera to determine whether the surveillance occurred, and if so whether it was lawful.

Al-Haramain met its burden by producing non-classified evidence that it had been the subject of such surveillance -including statements by government officials admitting as much. (In addition, the government had inadvertently produced a classified document acknowledging that Al-Haramain was wiretapped, though that document was excluded from the Court's consideration.) Unfortunately, the government refused to respond to the merits of plaintiffs' claims. Rather than dispute whether Al-Haramain had been subject to surveillance, or contend that the surveillance was lawful, the government continued to argue that the state secrets privilege barred introduction of any evidence relevant to those questions.

So it should come as no surprise that the government lost its case. Clearly frustrated by the government's "intransigence," Judge Walker concluded that he had no choice to rule in favor of the plaintiffs after the government failed to address Al-Haramain's claims that it had been the subject of unlawful surveillance.

This "victory" for the plaintiffs is unsatisfying for just about everyone. Because the government refused to respond to the merits of plaintiffs' claim, the case sheds no light on NSA's warrantless surveillance program. Just as disappointing, the government forfeited an opportunity to work with the court and the plaintiffs to create a model for future civil litigation involving classified information. Judge Walker ordered the government to process security clearances for plaintiffs' attorneys and to work with plaintiffs to create a protective order governing use of classified information-all reasonable steps that could have protected the classified information at issue while enabling the plaintiffs to seek judicial review of their FISA claim. Yet the government refused to participate in this process, preferring instead to argue that it alone controls access to information about whether it violated the law. Accordingly, the win is a hollow one for those who hope to see executive branch work with the courts rather than claim immunity from judicial oversight.

[Image via Jinx!.]

U.S. District Court Judge Vaughn Walker rejected arguments initially offered by both the Bush and Obama administrations, ruling that the National Security Administration's (NSA) warrantless wiretapping broke federal law. Walker determined that the program violated the 1978 Foreign Intelligence Surveillance Act (FISA) which requires warrants that the NSA failed to obtain.

Rather than mounting a legal defense of the NSA's program, the Obama administration only argued that the state-secrets privilege required the court to block the suit. Judge Walker bucked the administrations' invocations of the privilege, which he characterized as amounting to "unfettered executive-branch discretion" bearing "obvious potential for governmental abuse and overreaching." Walker's 45-page opinion made no mention of the Bush administration's argument that the NSA acted within the president's war time powers to override FISA.

Writing at Wired's "Threat Level" blog, David Kravets called the ruling "a landmark decision."

"It's the first ruling addressing how Bush's once-secret spy program was carried out against American citizens," Kravets reports. "Other cases considered the program's overall constitutionality, absent any evidence of specific eavesdropping."

Marcy Wheeler outlines the procedural posture and surmises that the Justice Department is unlikely to appeal the case:

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I'll explain in a later post why I think this will present some problems). And it'll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance-tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

What al-Haramain won't get-unless it litigates some of the other issues in the case, which likely can be dismissed with State Secrets-is access to what the government was doing. Or details of how it came to be wiretapped illegally.

I'm betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact.

[Image via ClintJCL.]

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Gregory T. Nojeim, Senior Counsel and Director of the Project on Freedom, Security & Technology at the Center for Democracy & Technology 

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The Washington Post reported yesterday that the FBI abused its authority to issue National Security Letters (NSLs) and that this abuse permitted it to illegally obtain more than 2,000 telephone call records from 2002-2006. This disclosure, made while Congress contemplates Patriot Act legislation that could rein in use of NSLs, should prompt a re-examination of the approaches taken in the pending bills.

A national security letter is a simple form document issued by the FBI and other agencies of the government to obtain telephone call records, email to/from information, and other records about communications, as well as financial, credit, and other records, without any prior judicial authorization. NSLs are served on the business entities that hold the records and the businesses that receive NSLs must comply or challenge them in court, and with limited exceptions, are barred from disclosing to anyone that they have received or complied with the demand for records.

The Patriot Act removed most of the legal restraints on issuing NSLs, including the requirement that the NSL seek information that pertains to a spy, a terrorist or another agent of a foreign power, and the requirement that agents articulate a factual basis for seeking records with an NSL. But it left in place the very minimal requirement that the NSL be issued only to seek information relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Rather than comply with this minimal requirement, FBI officials issued "exigent letters" to obtain information that should have been sought with NSLs even when no investigation had been opened, and in some cases, even though the information was not sought in an emergency situation. "Exigent letters" were a creation of the FBI and have no basis in law.

After this and other abuses were disclosed in a DOJ Inspector General report issued in March 2007, the FBI put in place administrative changes it said were designed to prevent a recurrence. Those changes included internal review by lead attorneys in FBI field offices of NSL requests. However, The Washington Post article reveals that officials who sanctioned the illegal exigent records included senior officials of the FBI - managers as high as Assistant Director of the FBI. It is not likely that an attorney in an FBI field office will be able to stop illegal activity sanctioned by his boss's boss. That the abuses went this high up the chain of command at the FBI had not been previously revealed.

Congress is currently considering legislation to reauthorize three expiring provisions of the USA Patriot Act. Both the House and Senate Judiciary Committees have reported legislation, but neither bill has come to a vote. While the Senate bill does little to rein in NSLs, the House bill would actually make a difference by focusing NSLs more on terrorists and spies, rather than on records about everyone else. Neither bill, though, explicitly addresses and precludes exigent letters. Each requires a statement of specific facts (the House bill also requires that those facts be "articulable") showing reasonable grounds to believe that the information is either relevant to an investigation (Senate bill) or is relevant and pertains to an agent of a foreign power (AFP), someone in contact with or known personally to such AFP, or is relevant to the activities of an AFP who is under investigation (House bill).

In theory, a requirement that agents articulate the facts that form the basis for seeking records with an NSL should stop the practice of issuing NSLs without any factual basis and without having opened the investigation that is a pre-requisite to issuing the letter. However, for such a limitation to be effective, agents must comply with the law. That they failed to do so over a five-year period following 9-11 does not inspire confidence that they will do so in the future, regardless of whether the law is more exacting. Self-policing doesn't work.

Another approach, which Senator Feingold included in the bill he introduced to reform the Patriot Act, would make a difference. Feingold's Justice Act (S. 1686) put sensitive records beyond the reach of NSLs. They could be sought only with criminal authorities subject to all of the checks and balances that come with criminal prosecutions, or with prior judicial authorization for intelligence-related investigations. Congress has so far rejected this approach. It should either be re-considered in light of these new disclosures, or an alternative should be adopted to preclude unlawful issuance of NSLs to seek sensitive personal information.

[Image via Security, Privacy and the Law.]

After 57 months, the case against Ahmed Ghailani (pictured) should be dismissed, his lawyers say. In a motion filed under seal last month, and just released in part yesterday, Ghailani's attorneys argue that Ghailani's right to a speedy trial was violated, unduly prejudicing the case against him.

Ghailani faces 286 counts for his alleged involvement in the 1998 bombings of U.S. embassies in Kenya and Tanzania. He was included among almost two dozen suspected terrorists in a broad indictment against those who would kill Americans "anywhere in the world, including in the United States." The indictment also targets Osama bin Laden, and may be extended to Khalid Shaikh Mohammed, should prosecutors seek to have his trial overseen by the same judge assessing Ghailani's case.

Ghailani was captured in Pakistan in 2004 and detained in overseas black sites for approximately two years, then sent to the detention facility at Guantanamo Bay. During this time, Ghailani's attorneys assert that he was the subject of "enhanced interrogation techniques," which they claim ammounted to torture. (After their introduction of this subject in their moving papers, several pages are redacted. Marcy Wheeler has more on Ghailani's evidentiary challenges here.)

Between the embassy bombings and his ultimate capture, the U.S. government claims that Ghailani served as Osama bin Laden's personal cook and driver. Ghailani's lawyers thus argue that the government was trying to turn him into an "intelligence asset" during his extended detention, interrogating him over 100 times about al Qaeda's operations and the whereabouts of bin Laden. 

"This motion asks one primary question," Ghailani's attorneys write. "Can national security trump an indicted defendant's constitutional right to a speedy trial? We respectfully submit that the answer is emphatically and without qualification, ‘No.' "  The government's reply is expected in the coming months.

Under a policy announced last year by San Francisco Mayor Gavin Newsom the day after he launched his California gubernatorial campaign, teenagers arrested for any reason in San Francisco would be subjected to immigration status checks. But that policy has been overturned by the the city's and county's Board of Supervisor's.

The Board rescinded that policy yesterday, saying that it led to the unwarranted break-up of many families. Under the new policy, teens arrested for felonies will still have their immigration status checked and may be turned over to federal immigration officials where appropriate.

"We recognize that there's a need to do some reporting" of illegal juveniles, Supervisor David Campos told The New York Times. "But we're trying to strike a balance."

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By Greg Nojeim; Senior Counsel and Director, Project on Freedom, Security & Technology; the Center for Democracy & Technology

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The Senate Judiciary Committee yesterday approved legislation to reauthorize the three expiring provisions of the USA PATRIOT Act and in the process rejected key amendments to restore civil liberties damaged when the Act was first adopted a few weeks after 9-11. The Obama Administration's opposition to civil liberties protections played an important role in this disappointing outcome.

The Committee failed to adopt any meaningful limits on National Security Letters (NSLs). Under the Patriot Act, FBI agents can use NSLs, without the approval of a judge, to obtain sensitive financial and communications records about anyone, even people suspected of no wrongdoing, solely on the claim of an FBI official that the information is "relevant" to an ongoing investigation. Earlier I wrote about an amendment that would have ensured that NSLs could be used to obtain sensitive personal information only if there was some reason to believe that the information pertained to a foreign terrorist or spy or somebody in contact with or known to such a person. That's not a very exacting requirement - and the amendment under consideration didn't even go so far as to require judicial approval - but still the Committee rejected it yesterday.

Instead, Senators opted for the more permissive "relevance" standard in current law. After a protracted debate, the Senators adopted a requirement that government agents write down specific facts showing that the information sought was relevant to an investigation. But that addition offers little protection, especially since intelligence investigations can be very broad and no one outside the FBI reviews the claim of relevance anyhow. The better way to focus intelligence resources would have been to ensure that the government was collecting information about potential bad actors and anyone tied to such people. Absent this minimal grounding, abuses and misuses of NSL authority identified by the DOJ's own Inspector General will persist.

Perhaps most surprising and troubling about the Judiciary Committee action was the role of the Obama Administration, which opposed civil liberties protections that were even weaker than the civil liberties protections Barack Obama favored as a Senator. As but one example, as Senator, Obama signed a letter calling for an amendment that would have said that the related authority in Section 215 of the Patriot Act to obtain a court order for any "tangible things" could have been issued only for records pertaining to a suspected spy or terrorist or someone tied to a suspected spy or terrorist. Senator Obama also co-sponsored a bill with an even stronger standard. Despite Senator Obama's history of favoring strong standards in the Patriot Act, President Obama's Administration persuaded Judiciary Committee members to reject even limited improvements.

This is not to say that the bill the Senate Judiciary Committee just approved (S. 1692) diminishes civil liberties protections in current law. In fact, it enhances those protections, albeit in small ways. It shortens from 30 to seven days the period during which the government can delay notice when it conducts a "sneak and peek" search to find evidence of crime. It imposes minimization requirements on NSLs to limit the dissemination to other agencies of personally identifiable but irrelevant information about Americans obtained with an NSL. It takes significant steps to bring the NSL gag provision in line with the First Amendment by providing for a more meaningful judicial review. It requires accountability measures that could uncover abuses, including Inspector General audits of the use of NSL and Section 215 authority, public reporting about the number of people subjected to FISA surveillance, and new sunsets that may prompt members of Congress to ask tough questions about use of Patriot Act powers when reauthorization is sought.

But, when it comes to the most important issue - requiring strong standards for access to records about Americans and appropriate judicial review when those records are sensitive - the Senate bill falls short. We can only hope that the House Judiciary Committee will do better.

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By Kevin Bankston, Senior Staff Attorney, Electronic Frontier Foundation

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The surveillance powers authorized by the USA PATRIOT Act endanger civil liberties, but their impact pales in comparison to that of the FISA Amendments Act (FAA) passed by Congress last summer. That law eviscerated Americans’ protections against domestic spying by intelligence agencies and granted immunity to telecommunications companies that illegally assisted in the National Security Agency’s warrantless wiretapping. The PATRIOT renewal debate offers the first, best, and perhaps last meaningful opportunity to reform that law, and the Electronic Frontier Foundation (EFF) urges members of the Senate Judiciary Committee to support any amendments to the FAA offered by Senator Feingold when it considers PATRIOT renewal tomorrow morning.

Last week, Greg Nojeim of the Center for Democracy & Technology (CDT) ably introduced ACSblog readers to the current state of the USA PATRIOT debate: how three provisions related to PATRIOT are set to expire at the end of the year; how Senators Leahy and Feingold have introduced bills that would renew most or all of the expiring provisions but that also contain critical new privacy protections; how the Senate Judiciary Committee is set to consider those bills tomorrow; and how, in CDT’s opinion, “reform of NSL authority should be at the top of the congressional agenda for the Patriot Act.” EFF wholeheartedly agrees with CDT’s conclusion that the FBI's authority to issue National Security Letters is the PATRIOT power that poses the most clear and present danger to civil liberties. However, the PATRIOT debate is also a critical opportunity—perhaps the only opportunity—to significantly reform the much more worrisome surveillance powers granted by the FAA.

From a civil liberties perspective, focusing on reforming the PATRIOT Act without also considering FAA reform is like rearranging deck chairs on the Titanic. Although objectionable in the extreme, PATRIOT did not fundamentally change the structure of federal surveillance law; rather, it was a collection of nips and tucks to current law that favored Executive authority over personal privacy, which when taken together constituted a significant new threat to civil liberties. On the other hand, the FAA was a radical facelift to the law, which broadly expanded the government’s warrantless wiretapping authority and reduced Americans’ protections against interception of the content of their phone conversations and emails. Admittedly, NSLs authorized by PATRIOT have been used to obtain the sensitive phone, internet and credit records of hundreds of thousands of Americans. The FAA, however, is being used to intercept and store millions upon millions of private telephone calls and internet communications, including purely domestic communications.

This assertion is borne out by the investigative reporting of the New York Times, a leader when it comes to covering surveillance issues. The Gray Lady first reported back in April that in its attempts to implement the FAA, the National Security Agency (NSA) had engaged in “significant and systemic” “overcollection”—i.e., illegal interception—of large volumes of domestic email traffic. The Times’ follow-up reporting indicated that the “overcollected” emails likely numbered in the millions, and that those millions of illegally intercepted emails were being kept by the NSA in a database code-named “Pinwale”.

The Times’ reporting provided further proof of what EFF has been alleging all along in its two lawsuits over the NSA surveillance, Hepting v. AT&T and Jewel v. NSA: that the NSA program is not narrowly targeted at the international communications of people linked to terrorism as President Bush always claimed, but instead is a program of dragnet surveillance whereby the NSA, plugged into key telecommunications switches across the country, vacuums up millions of private communications including domestic calls and emails.

In other words, the NSA program isn’t a “retail” surveillance program, where the government picks a target and then wiretaps that target. Rather, according to news reports and whistleblower evidence, it’s a “wholesale” surveillance program where the NSA sucks up millions of communications and then uses data-mining techniques to pick out the communications that intelligence analysts will read or listen to. Crucially, as we’ve alleged and as the Times’ latest reporting has demonstrated, this dragnet program of wholesale surveillance is still happening under the Obama Administration.

EFF and the Times aren’t alone in sounding the alarm over the NSA’s ongoing spying program. Indeed, the concluding sentence of a recent joint report by the Inspectors General of the Justice Department and a range of intelligence agencies on the Bush-era version of the NSA program was a warning: a warning that the “collection activities” pursued under the newly amended FISA law are “unprecedented” and that the retention and use of the collected information “should be carefully monitored.” Apparently, even NSA’s own inspector general is worried about unprecedented scope of the NSA’s surveillance!

Luckily, Senator Feingold and Durbin are also concerned—so concerned that they included a range of privacy-protective FAA amendments in their PATRIOT reform bill, the JUSTICE Act. Perhaps most importantly, section 304 of JUSTICE would prohibit the government from using the FAA to engage in “bulk collection” of Americans’ communications, and would instead require the government to only acquire the communications of individual targets who are linked to terrorism or espionage and are believed to be outside of the U.S. EFF, like the Times’ editorial board, would prefer to see the whole FAA repealed, including the provision granting immunity to telcos like AT&T that are being sued by EFF and others for their illegal collaboration in the NSA program. But the reforms in the JUSTICE Act represent an important step in reining in this powerful new surveillance law.

CDT is certainly right that the “prize” when it comes to PATRIOT reform is NSL reform, and that we shouldn’t get too distracted by debate over the expiring provisions. However, EFF would go further to say that we shouldn’t get too distracted by PATRIOT reform when thinking about surveillance reform, because in the end the FAA is the much greater threat to civil liberties. Therefore, the single most important thing that members of the Senate Judiciary Committee can do tomorrow to protect the civil liberties of all Americans is to look beyond the four corners of PATRIOT and support Mr. Feingold’s FAA reforms. If you agree, please visit EFF’s action center and tell your Senator to support PATRIOT reform and FAA reform by supporting JUSTICE.