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Patriot II:
The Sequel Why It's Even Scarier than the First Patriot Act


Monday, Feb. 17, 2003

This daring sequel to the USA Patriot Act is known internally as the Domestic Security Enhancement Act. It is also nicknamed Patriot II (the name by which I'll refer to it here), or Son of Patriot. On February 7 of this year, a January 9 draft of Patriot II was revealed to the public - but not by the government. It was made public only through a leak.

Even Congress itself, strikingly, appears to have played little or no part in Patriot II's drafting (though it seems that Speaker of the House Hastert was, at least, given the opportunity to review the draft last month, as was Vice President Cheney.).

Perhaps the Bush Administration is looking to repeat its experience with the original USA Patriot Act. Amidst the emotional turmoil after September 11, the Administration introduced the Act and got it enacted in a matter of weeks. The Senate Judiciary Committee had only a brief, one-and-a-half-hour hearing on the Act, in which Attorney General Ashcroft testified but took no questions. In the House, meanwhile, there was no testimony from opponents of the bill.

After September 11, there was at least some rationale for this expedited consideration. Now, however, there is far less exigency. If the introduction of Patriot II in Congress coincides with the Iraq war, it may well be because the Administration has planned it that way, to take advantage of circumstances to ram the bill through both Houses quickly.

Even if Patriot II does end up being introduced in wartime, citizens and their representatives should fight this legislation tooth and nail, for it threatens to take even more of our liberties away. It is a wholesale assault on privacy, free speech, and freedom of information.

Making Total Information Awareness the Law

Admiral Poindexter's proposed Total Information Awareness (TIA) program, which sought to build data profiles of all Americans, sparked a wide public outcry. Congress recently warned against using TIA as a tool against US citizens. Nevertheless, Patriot II, as draft by the Attorney General and his staff, would begin to make TIA the law.

For instance, under Patriot II, federal agents would not need a subpoena or obtain a court order to access our consumer credit reports. This provision would open the wedge for TIA to be implemented through a huge database. Our credit reports are repositories of a great deal of sensitive information - from our employment history to where we shop, borrow and transact.

To see the information, the feds would only have to certify that they will use the information "in connection with their duties to enforce federal law." Note that they would not have to certify that the person whose information was accessed was suspected of terrorism, or indeed, any other crime. And no one would be notified that their records had been accessed. When a commercial entity requests a consumer's credit report, a note is made in the consumer's file alerting him to this fact.

Meanwhile, not only data, but genetic information would also be collected by the government if Patriot II were passed.

DNA would be put into a "Terrorist Identification Database." It would contain information not only for proven terrorists, but also "suspected terrorists." And that term would include anyone who was associated with, or had provided money or other support for, groups designated "terrorist."

It might also include protesters, or anyone else the government dislikes. Remember, the original USA Patriot Act defined the new crime of "domestic terrorism" broadly, to encompass "any action that endangers human life that is a violation of any Federal or State law."

Certainly one could envision a disruptive war protester who resisted arrest being tagged as a "suspected domestic terrorist," and forced to provide DNA. Would the government need to get a court order to procure the DNA? Not under Patriot II.

And what if the protester wouldn't comply? That would be a Class A misdemeanor, punishable by up to one year in prison and a $100,000 fine. Anyway, the protester's refusing to give up DNA might be futile - if any other government agency happens to have a blood sample, Patriot II gives the government the right to put it in the new database.

Incredibly, DNA would also be collected from anyone who is, or has been, on probation for any crime, no matter how minor. State governments would be required to collect DNA samples from state probationers and provide them to the federal government.

Increasing Surveillance Powers

Database surveillance, under Patriot II, would also be combined with increased active surveillance of citizens.

To assess the change, it's important to remember that the Patriot Act itself already greatly expanded surveillance powers. Now Patriot II would, if enacted, makes it even easier for the government to engage in surveillance of U.S. citizens, without having to establish traditional probable cause under the Fourth Amendment. It would do so by making it easier for law enforcement to avail itself of the Foreign Intelligence Surveillance Court, which issues warrants more easily than federal district courts will.  

Remember, domestic terrorism is defined very broadly as  "any action that endangers human life that is a violation of any Federal or State law." That means anything from getting into a raucous bar fight, to driving recklessly over the state speed limit, could theoretically count. And if the government finds a particular person suspicious, they could cite law violations as far from terrorism as these as a valid excuse for surveillance.

Worse, even those persons who cannot be deemed "domestic terrorists" because they have not broken any law, can alternatively be deemed "foreign powers" under Patriot II - even if they are American citizens or permanent residents. This allows the FBI to get pen registers on American citizens for a foreign intelligence investigation - without having to show any criminal or terrorist connection.

Gagging American Citizens and Cutting Off Their Rights to Sue

If you don't like the government's policies, including these, Patriot II says: Too bad. Don't try to make a federal case out of it - we'll bar you at the courthouse door.

What if you're lucky enough discover that you've been illegally spied on, in violation of your Fourth Amendment rights? Too bad. Patriot II would provide immunity from liability to law enforcement engaging in spying operations against the American people. The proposed act provides a defense for federal agents who engage unauthorized searches and surveillances relating to foreign intelligence when they are acting "pursuant to a lawful authorization from the President or the Attorney General."

What if a disgruntled business competitor chooses to falsely claim to the government that you're a "suspected terrorist"? Again, too bad. Don't consider suing the competitor, no matter what consequences ensure Patriot II eliminates civil liability for businesses and employees that report "suspected terrorists" to the federal government, no matter how malicious or unfounded the tip may be.

Like TIA, Operation TIPS - which would have enlisted government employees to spy on citizens - elicited public outcry. But this is TIPS all over again. If they like, your package courier or cable guy can report you to the feds with impunity.

Broadly Criminalizing Encryption of Evidence

Meanwhile, in your search for a shred of privacy that might remain to you, don't even think about trying to protect your email. Under Patriot II, the government may go after you for that, too.

The "federal crime" limitation may seem significant, until you realize that "domestic terrorism" - which can be based on a state law violation - is a federal crime. Remember, too, how loosely "domestic terrorism" is defined, in a way that could encompass a protester's resisting arrest, and if you do, you may reasonably fear using encryption even if you are not engaged in any criminal activity at all.

What if your encrypted email about protest planning is deemed "incriminating evidence" of your plan to resist arrest at the protest? You could be looking at five to ten.

The penalty for this offense alone would be up to ten years in prison. In addition, a Justice Department analysis included with the proposal suggests that the illegal encrypting ought to carry a mandatory minimum term of five years in prison.

Notably, the federal felony relating to the "incriminating communication" need not be an act of terrorism. It could be any federal crime, from the most major to the most minor, the most violent to the most excruciatingly technical. And that's frightening.

For instance, if a peer-to-peer website's users swap files, thus violating the Digital Millenium Copyright Act, and encrypt the files they are swapping, they may automatically face five years in prison, and could serve ten, for the encryption alone.

What is most shocking about the new encryption crime is that it is not limited to terrorism. This is the first attempt to regulate encryption domestically at all.

Shrouding Government Actions in Secrecy

While the government, according to Patriot II, has the right to know virtually everything about you, you have little right to know anything about the government.

Current grand jury secrecy rules apply only to jurors, prosecutors and courtroom staff. Patriot II would expand them to apply to witnesses too - meaning that ordinary citizens could not discuss their testimony with anyone but their attorney. In theory, they'd have to keep mum even with spouses or children, or face serious consequences.

Will the grand jury itself at least remain independent? Nope. Patriot II allows the federal government to place gag orders on both federal and state grand juries, and to take over the proceedings.

Detentions will be similarly shrouded in an atmosphere of dead secrecy. The Justice Department's position on detainees is that if they are held incommunicado indefinitely without being charged with a crime, they need not be publicly identified. Patriot II would make that dubious position the law.

Meanwhile, if you do happen to somehow find out the identity or whereabouts of - or anything else about - a detainee, it would be criminal under Patriot II to reveal it. And that's the case even if you are the detainee's parent, spouse, or child.

Okay, you might ask, this is a lot of secrecy, but isn't it at least somewhat limited? Can't I at least use the Freedom of Information Act (FOIA) to figure out what the government is doing when it's not secretly detaining people, or secretly conducting grand jury proceedings?

No. Under Patriot II, FOIA would not extend to information "specifically exempted from disclosure by statute." What kind of statutes? Well, the USA Patriot Act might be one. Patriot II might be another.

It's a clever strategy: Collect private information. And then when citizens try to find out what you've collected, cite their own privacy right back at them as a reason not to divulge it.

If it seems farfetched to think the government could invoke privacy in this instance, consider that Ashcroft actually cited detainees' privacy as a reason not to release their names to the press, the public, or even their families.

Denaturalization: The Citizenship Death Penalty

In sum, Patriot II puts in jeopardy the First Amendment right to speak freely, statutory and common law rights to privacy, the right to go to court to challenge government illegality, and the Fourth Amendment right against unreasonable searches and seizures. But that's not all.

Suppose you, as a citizen, attended a legal protest for which one of the hosts, unbeknownst to you, is an organization the government has listed as terrorist. Under Patriot II, you may be deported and deemed no longer an American citizen.

Under Patriot II, if you are simply suspected of terrorist activity, this can occur. More specifically, a U.S. citizen may be expatriated "if, with the intent to relinquish his nationality, he becomes a member of, or provides material support to, a group that the United Stated has designated as a 'terrorist organization'."

How can you tell if the citizen wanted to relinquish citizenship? Under Patriot II, the intent can be inferred from conduct. So any association with even the legal activities of a designated group, plus any act that can be interpreted as disloyal to the United States, can mean you are deported, and no longer considered a citizen.

No Sunset Provisions for Patriot II Mean We Are Stuck with It If It Passes

The original USA Patriot Act has sunset provisions, under which the Act will expire if not renewed in five years. Patriot II, however, does not have such provisions. Indeed, it would go so far as to remove this important check from the original Patriot Act. So if Congress, and the American people don't focus carefully on Patriot II, even in the midst of impending war, we may be stuck with both Patriot Acts indefinitely.

Especially for that reason, Congress and the public need to learn more. Senator Patrick Leahy has argued, for instance, that before the Department of Justice asks Congress for more powers, it needs to disclose how it is using the ones it already has. Instead, the Department has so far repeatedly balked at both FOIA requests from the press and the public and requests from Congress for more detailed reporting pursuant to USA Patriot Act.

At the very least, Congress and the public should insist on a full understanding of what the Justice Department is doing before granting the executive branch still more authority via Patriot II .

Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology. Her prior columns on post-September 11 terrorism-related legislation can be found in the archive of her columns on this site.

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