What will we give up?

Federal lawmakers must weigh the competing interests of security and privacy as they reconsider provisions of the USA Patriot Act

by Daniel C. Vock

As federal agents closed in on a drug trafficking ring in Pittsburgh, they discovered that several of the group's leaders also were in on a credit card racket. The agents searched a Federal Express package and found counterfeit cards.

Normally, the agents would have had to produce a warrant and inform the recipient before they could search the package. But that posed a problem for the investigators.

"Had notice of the Federal Express search tied to the credit card investigation been immediately given, it could have revealed the ongoing drug trafficking investigation prematurely and the drug trafficking investigation might have been seriously jeopardized," U.S. Attorney General Alberto Gonzales told the Senate Intelligence Committee in April.

Instead, the agents relied on a provision of the 2001 USA Patriot Act to delay for a few weeks telling the suspects of their search. The act expanded law enforcement's search powers in the wake of the September 11 terrorist attacks.

Mary Beth Buchanan, the U.S. attorney in Pittsburgh, says that was instrumental in wrapping up both investigations. The drug ring, for which 51 people were indicted, was the largest bust in the Pittsburgh area. As a result, the city's murder rate plummeted, along with the number of fatal heroin overdoses.

"We would not have been able to conclude the investigations as quickly, and we would not have been able to identify some of the participants" in the credit card scheme without the Patriot Act, Buchanan says.

That so-called sneak-and-peek, or delayed notice provision, though, is dead center in the debate over whether Congress should scale back the Patriot Act as parts of it expire this year. With critics from both parties attacking portions of the law — even permanent provisions — that debate could be fierce.

One of those critics, U.S. Sen. Richard Durbin, an Illinois Democrat from Springfield, put forward an alternative proposal earlier this year that is co-sponsored by two GOP senators. Durbin predicts the fight over the Patriot Act will split party ranks in a "historic face-off."

Not everybody is convinced. Another member of the Illinois congressional delegation, Republican U.S. Rep. Ray LaHood of Peoria, says lawmakers likely will renew the law in short order this summer. He says even the most controversial provisions have worked well. "I think they're minimal; I think they're effective; and I think they've sunk in with the American public."

But discussions over the Patriot Act, whether on Capitol Hill or at the kitchen table, almost inevitably lead to the larger question: Have Americans given up too much privacy to combat crime, including terrorism?

"The Patriot Act has become the focus of a larger phenomenon. If the Patriot Act was repealed lock, stock and barrel tomorrow, we'd still have a big problem with privacy," asserts Jay Stanley, communications director of the Technology and Liberty Program of the American Civil Liberties Union.

New laws and technology make the freedom from government intrusion far more complicated today, but even our Founding Fathers wrestled with the issue. The very first Congress dealt with the conflict when it enacted the Third and Fourth Amendments, keeping the government out of homes except in limited circumstances. But the need to crack down on bootleggers, drug dealers, war protesters and foreign agents has, at times, pushed the pendulum the other way.

Now, some privacy advocates wonder whether Americans are permanently ceding too much ground to the government.

"I think it's very difficult to retrace your steps in this process," Durbin says. "It's like that old saying: Once the garlic is in the soup, you can't get it out."

Durbin says his concerns about privacy stretch well beyond the powers granted to law enforcement under the Patriot Act. And he's not alone.

It's no surprise that the American Civil Liberties Union is calling for curbs on police powers, government surveillance and data tracking. But so is the Cato Institute, a libertarian think tank based in Washington, D.C. Gun-rights groups and wary conservatives also object to what they see as an erosion of privacy rights.

In addition to renewing expiring parts of the Patriot Act, Congress has approved a nationwide system for exchanging driver's license information among states. The U.S. State Department is working on a plan to put radio transmitters that will broadcast personal information in U.S. passports. And the nation's highest court continues to grapple with questions about how far the U.S. Constitution goes in limiting police authority to search and seize citizens and their property.

"I don't think there's been a single war in our history when there hasn't been a debate over liberty and security, and the war on terrorism is no different," says Durbin, the No. 2 Democrat in the U.S. Senate.

But that doesn't mean everybody is convinced that the privacy rights of Americans are under assault. Law enforcement officials argue that several of the provisions enacted in recent years have been long overdue, a fact that was made painfully clear by the September 11 airline hijackings four years ago.

LaHood says Congress likely will reauthorize the expiring parts of the Patriot Act this summer "unless people can really come forward and talk about some abuses that have taken place to common, ordinary, peaceful, law-abiding citizens." LaHood, a close ally of U.S. House Speaker J. Dennis Hastert, another Illinois Republican, says the American Civil Liberties Union and other opponents to the act have yet to make that case.

"If you thought your rights were abridged, you would be running to some lawyer or some organization. I think most Americans would do that," LaHood says. So far, though, he says he hasn't heard of any situations showing that law enforcement has abused its new powers.

One of the most controversial components of the Patriot Act gives police and prosecutors access to library records — a measure LaHood opposes — but he notes the FBI says it has never used those powers.

"The ball is sort of in the court of these rights groups in terms of coming forward and saying, 'Hey, this is where, you know, we maybe stepped over the line.'"

Where, exactly, that line lies is a good question. Although politicians and citizens often talk about privacy rights, those rights are not explicitly mentioned in the federal constitution.

And rights written into federal law can vary greatly from one context to the next. Records of what movies someone rents at Blockbuster are treated different from records of what he or she checks out at the local library. Different regulations apply to grades earned in college, treatment received in a hospital and payments made toward credit card debt.

Further complicating the debate is that the right to privacy has been used to describe the idea that citizens shouldn't have to endure invasive government searches or authorities meddling in such personal decisions as how to raise a child, whether to have an abortion or whom to sleep with. The term also is used when discussing topics that don't directly involve the government at all, such as measures to guard against identity theft.

But when it comes to criminal investigations, the Fourth Amendment provides protections against unwarranted searches and seizures. Still, the extent of those safeguards is often in flux. For example, the U.S. Supreme Court initially ruled that they didn't apply to wiretaps. In 1928, the high court allowed prosecutors to use secretly taped conversations in the trial of a suspected bootlegger. It determined that the Fourth Amendment only covered physical searches.

That ruling stood for 39 years before the court reversed the decision. In Katz v. United States, the justices declared that the "the Fourth Amendment protects people, not places."

"What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," the court reasoned. "But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

Even though many Americans would now automatically assume the police would need a warrant to listen in on phone conversations, the court has allowed uninhibited police eavesdropping longer than it has prohibited the practice. But concerns about government wiretaps are alive again in the debate over the Patriot Act. The law allows law enforcement to monitor multiple phone lines or computers associated with a suspect, rather than requiring police to ask a federal judge for permission to monitor each one individually. So now, not only does the Fourth Amendment apply to people instead of physical property, but warrants do too.

Roving wiretaps are one of the issues Durbin recommended scaling back in legislation he is pushing as an alternative to the Patriot Act. He argues that the law gives authorities too much leeway and gives them the opportunity to eavesdrop on the conversations of innocent people.

Jan Paul Miller, the U.S. attorney for the Central District of Illinois, says long-standing safeguards protect ordinary citizens from having their conversations heard by law enforcement officers in criminal investigations.

"Getting a wiretap is a big deal" for prosecutors, Miller says, because prosecutors must show a judge they have good reasons to believe the suspect is engaged in criminal activity and using the targeted phones to do it. On top of that, they have to convince a federal judge they've run out of other options for obtaining the information they need.

Once investigators get permission to eavesdrop, they have to check in with a federal judge, usually once a week, to keep the court informed of their progress. Running a wiretap means keeping monitors on the job around the clock, but the investigators have to hang up whenever it's clear a conversation doesn't involve crime. They have to keep a log of the calls and then get transcripts of the conversations they want to use, Miller points out.

"It uses a lot of manpower. You're not going to do it unless you need it and it's a very important case. It drains resources."

Across the country, state and federal judges approved 1,710 applications for wiretaps in criminal cases last year, a 19 percent increase from 2003. (Wiretaps in intelligence cases are, obviously, confidential.) Federal judges approved 730 of those requests; state judges signed off on the rest. None of the requests were denied, according to the Administrative Office of the U.S. Courts.

While roving wiretaps and sneak-and-peek searches concern clearly private spaces, other measures in the Patriot Act address information that privacy advocates argue should remain fiercely guarded, even if it is "in an area accessible to the public."

The most obvious example of that is the FBI's authority to request "any tangible thing" — including library and medical records — relating to an intelligence investigation.

But the ACLU's Stanley also highlights another provision in the Patriot Act that allows the U.S. Treasury Department to track financial transactions by a broad swath of citizens, even as federal lawmakers have clamped down on information-sharing among private companies.

A 1999 law gives consumers the right to opt out of certain information-sharing arrangements among banks and other financial institutions. The Gramm-Leach-Bliley Act requires those institutions to send consumers notices about how companies are using their personal data. But, Stanley says, those protections do nothing to prevent the federal government from inspecting the personal information from those institutions. Further, one provision of the Patriot Act requires financial institutions, casinos and money transmitters to monitor accounts for activity that could be indicative of money laundering.

The Treasury Department maintains the network of databases, which is called the Financial Crimes Enforcement Network, or FinCEN. And that has privacy advocates up in arms. Jim Harper, the director of information policy studies at the Cato Institute, which advocates for smaller government, wrote last year that the motivation behind the monitoring program is to "constantly survey the financial movements of the entire society in order to root out bad actors, using the financial services sector as a sort of deputy investigator."

"The privacy of individual consumers' financial data is obliterated by programs such as this," he argued. Furthermore, Harper asserted, the database allows federal agents to investigate people instead of crimes. They can look at personal records and discover crimes that haven't even been reported.

"Crime fighters should always identify and punish perpetrators of known crimes. They should not identify people 'suitable for punishment' and then identify what they may have done wrong," Harper wrote.

A law enacted in the early 1970s curbs the amount of information the FBI and other federal agencies can gather on U.S. citizens, but Stanley says the law doesn't prevent the government from using such outside contractors as ChoicePoint or LexisNexis to provide that information.

A more recent example, he argues, shows how easily government can collect data on its citizens, opening the door to identity theft or other abuses. Congress incorporated national standards for driver's licenses in a measure that would provide money for soldiers in Iraq and Afghanistan.

If President George W. Bush signs the proposal as expected, it will require that all states verify citizenship before issuing a license. If states want to give licenses to illegal immigrants, they would have to issue them distinctive licenses. Only approved licenses could be used, for example, to show proof of identity before boarding a plane.

And, some privacy advocates argue, once law enforcement officials expect everyone to have standard identification, they could demand it more frequently because of a ruling handed down by the U.S. Supreme Court last summer. In that decision, the justices upheld the conviction of a Nevada man for not identifying himself to police, though the officer had no indication that he had committed a crime.

LaHood says those concerns are a stretch. "I don't think it would be dissimilar to their ability, if somebody stops somebody, to tap into a system and find out if somebody's got a DUI or somebody's got a ticket or somebody's illegal," he says. "I think, really, it gives them instant information as soon as the law enforcement system taps into the system."

But Stanley says the real concern is "not so much the piece of plastic but the database behind it."

All states would have to store their license information in a format compatible with other states and the national government. And, given private industry's interest in driver's license information for purposes as varied as direct-mail advertising or background checks, the privacy protections for ordinary citizens could be dismantled, he says. "Our saving grace for privacy heretofore has been the different databases. But, if you put it all together, data surveillance can become so rich that it becomes like video surveillance," he argues.

Even identification cards could betray more information, Stanley says. The U.S. State Department recently backed off a proposal to implant radio-transmitting chips into American passports, but the respite may only be temporary. The chips, which are expected to replace bar codes in many applications, can be read by anyone who comes close to them. That means if the information is unencrypted, passersby could lift a passport owner's identity without ever talking to or touching their victim, according to Stanley.

Although it seems only a remote possibility now, the rapid advance of technology means America is increasingly at risk of becoming a "surveillance society," he says.

 "Technologically, the George Orwell world is here. It's a question of policy and resolve," Stanley argues.

Again, LaHood is skeptical. He says people are accustomed to showing their driver's licenses or state identification to board airplanes or enter public buildings. In fact, such precautions often give Americans a sense of a "security blanket" because they know authorities are paying attention to their safety, the congressman says.

"I'll tell you this: I haven't had a lot of people coming to me clamoring about the fact that they've lost their sense of privacy as a result of the Patriot Act.

I really haven't. I think people, since 9/11, have been accustomed to the idea," he says.

Miller, the U.S. Attorney in Springfield, says many of the objections to the Patriot Act are the result of a "tremendous amount of misinformation and misunderstanding." For example, he says, people often complain that the FBI can get access to library records, but they don't realize those records could have been subpoenaed before the Patriot Act. In fact, Miller notes, library records were used in the investigation of the 1997 murder of fashion designer Gianni Versace.

Officials from the U.S. Department of Justice also regularly point out that a grand jury investigating a serial killer in New York subpoenaed library records to see who had been checking out books by a poet that may have inspired the Zodiac killer.

The Justice Department also reported that it has used the business records provision of the Patriot Act 35 times as of the end of March. The agency has asked for records dealing with driver's licenses, apartment leases, phone bills and credit cards — but never a library or bookstore record.

A federal prosecutor defending the provision told a U.S. House panel in April, "Libraries should not be carved out as safe havens for terrorists and spies. We know for a fact that terrorists and spies use public libraries."

The question for Congress, and ultimately the country, is greater than whether that provision should remain law. It is only one example of the federal government's increased reach into our personal space, which means the pending battle over the Patriot Act could be a precursor of the privacy debates to come.

Illinois Issues, June, 2005

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