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EFFector - Volume 17, Issue 10 - Let the Sun Set on PATRIOT Section 212 and Homeland Security Act Section 225

EFFector       Vol. 17, No. 10       March 24, 2004

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 282nd Issue of EFFector:


Let the Sun Set on PATRIOT Section 212 and Homeland Security Act Section 225:

"Emergency Disclosure of Electronic Communications to Protect Life and Limb"

Welcome to part six of "Let the Sun Set on PATRIOT," an EFFector series on the battle to let some of the most troubling provisions in the USA PATRIOT Act expire, or "sunset." Each week, we profile one of the 13 provisions set to expire in December of 2005 and explain in plain language what's wrong with the provision and why Congress should allow it to sunset.

This week we look at PATRIOT Section 212, which allows your ISP or phone company to share your private communications with the government even if it isn't served with a search warrant. This tramples on your rights by allowing the Department of Justice to do an end-run around laws that safeguard your privacy.

Section 212 is a special case, because it has been replaced by subsequent legislation - namely, Section 225 of the Homeland Security Act (HSA) of 2002. HSA Section 225 expanded on the powers granted by PATRIOT 212, but unlike that PATRIOT provision, HSA Section 225 WILL NOT SUNSET. HSA Section 225 is now the law at issue, and as explained below, it should be repealed.

How PATRIOT Section 212 and Homeland Security Act Section 225 Changed the Law

Before PATRIOT, in order to get communications records or stored communications - such as email or voice mail - from your ISP or phone company, the FBI had to get a search warrant or court order from a judge, or get a subpoena from a grand jury. Congress gave us this protection in the Electronic Communications Privacy Act of 1986, because, even though your ISP or phone company stores messages for you, they're still your private messages. They shouldn't be shared without your consent unless a court or grand jury demands them.

After PATRIOT Section 212, your ISP or phone company could hand over your private records and messages to any law enforcement agent, as long as that communications provider reasonably believed that the immediate danger of death or serious physical injury required it to do so. This could be take place without your knowledge or consent.

But Section 212 wasn't the end of the story. The Homeland Security Act expanded the power of PATRIOT Section 212 by 1) lowering the relevant standard from "reasonable belief" of a life-threatening emergency to a "good faith belief," 2) allowing communications providers to use the emergency exception to disclose your data to any government entity, not just law enforcement, and 3) dropping the requirement that the threat to life or limb be immediate. Most significantly, HSA Section 225 does not expire, rendering the sunset of PATRIOT Section 212 irrelevant.

Why Homeland Security Act Section 225 Should Be Repealed

Communications providers now need only a "good faith" belief that there is a life-threatening emergency to justify the disclosure of your personal communications and records. This belief could be based solely on the representations of a government agent claiming that there is such an emergency - whether or not that is actually the case. This kind of abuse has already occurred: one Department of Justice attorney said he needed information to investigate a terror threat when he actually was investigating a bank robbery, while another agent cited a bio-terrorism threat in what turned out to be a drug sting.

HSA Section 225 is a prime example of how the Department of Justice has quietly and incrementally persuaded Congress to expand its powers under PATRIOT. By pushing for additional provisions in often-obscure bills, it has worked to ensure that these powers are expanded and made permanent before the public debate over PATRIOT's sunsetting provisions has even begun. This subtle legislative opportunism must be exposed and rebuked; HSA Section 225 must be repealed.

Conclusion

HSA Section 225 takes away your rights by allowing the Department of Justice to do an end-run around laws that protect the privacy of your personal communications. EFF strongly supports its repeal, and we urge you to support it, too. We also support the Security and Freedom Ensured Act (SAFE Act, S 1709/HR 3352) and encourage you to visit EFF's Action Center today to let your representatives know you support the bill.

Next Week

We'll look at Section 201, which makes it easier for the FBI to wiretap your communications based on activities protected under the First Amendment.

Previously profiled:


Cory Doctorow to Participate in Barcelona Forum 2004

On May 9th through September 29th, 2004, the Barcelona Forum will hold a series of events at an international conference aimed at challenging media consolidation. Taking place in a specially constructed international village in Barcelona, Spain, this "Cultural Olympics" is sponsored by the United Nations, the Spanish government, the Catalan government and the city of Barcelona.

EFF Outreach Coordinator Cory Doctorow will participate in a roundtable discussion entitled "The New Information Networks During Situations of Crisis: From 11-S to 11-M" at 3:00 p.m. on May 19th.

Further details about Barcelona Forum 2004 are available at the event website: http://www.mediadialogues.org


Deep Links

Deep Links features noteworthy news items from around the Internet.


Staff Calendar

For a complete listing of EFF speaking engagements (with locations and times), please visit the full calendar.

  • March 25 -

    Fred von Lohmann speaks at GW Honors Program Symposium,
    George Washington University
    Washington, DC
    5:30 p.m. - 7:00 p.m.

    Seth Schoen speaks on Trusted Computing
    Providence, RI
    3:30 p.m. - 4:30 p.m.

  • March 26 - Jason Schultz speaks at Duke Law School's IP Society Symposium Durham, NC
    11:45 a.m. - 12:45 p.m.

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