March 13, 2006 | By Kevin Bankston

PATRIOT Renewal Rubber Stamped, NSA Spying May Be Next

Despite the best efforts of EFF, other civil liberties organizations, and their supporters, Americans' privacy rights took some serious body-blows from Congress this week. For more on the PATRIOT Act: The USA PATRIOT Act was renewed without meaningful reform, and key Congressmen backed away from a full investigation of the NSA's domestic spying program, instead making a deal with the White House to legalize it.

Whether because of election year fears or White House pressures, Republican Senators who had been holding out for significant new checks on the PATRIOT Act dropped the fight when offered a few sham reforms. The renewal bill was then quickly approved by the Senate and, this week, approved by the House and signed by the President.

Why are the "compromise" bill's three reforms worthless? Let's take each in turn.

The bill provides a procedure for recipients of super-secret National Security Letters (NSLs) to challenge the never-ending gag orders that accompany these FBI-issued subpoenas. But the ACLU (with help from EFF) already demonstrated that these gag orders could be successfully challenged in court without a change to the law. This new "reform" actually makes things worse: under the new law, these gag orders can't be challenged at all within a year of being issued, and if the government simply tells the court that lifting the gag order will hurt national security, the government wins. We think this procedure is just as unconstitutional as the original law.

The bill didn't include a requirement that NSL recipients seeking legal advice disclose their lawyer's name to the FBI. But this "reform" simply removed something bad from one of the renewal bill's earlier versions; it didn't change the original PATRIOT Act at all.

Finally, the bill clarified that NSLs can't be served on libraries that don't provide electronic communication services. But NSLs already can't be served on libraries lacking those services.

Unfortunately, it gets worse. Senate Republicans this week stated that they had reached a deal with the White House to legalize the NSA's domestic spying program. The agreement allows government investigators to conduct warrantless wiretaps for up to 45 days before having to go to a court, even in non-emergency situations. Currently, the law only allows such surveillance without a warrant for 72 hours in emergencies and for 15 days by the Executive when war is declared. Because of this deal, an in-depth Congressional investigation of the NSA program -- what it actually involves and whether it broke the law -- has been deflected for now.

Nevertheless, this week's events shouldn't be taken as final defeats. Members of Congress who were dissatisfied with the PATRIOT bill -- Democrats and Republicans alike -- are already proposing new non-sham reforms, while the plan to legalize the NSA Program still has opponents on both sides of the aisle. EFF believes that the spying program did in fact break the law and violate the Constitution, as we have alleged in our lawsuit against AT&T for helping the NSA with this massive fishing expedition into Americans' private communications. As always, EFF will stay on the front lines and fight hard to ensure that your civil liberties are protected.


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