[Mb-civic] Limiting secrecy under the Patriot Act - Philip Heymann, Juliette Kayyem - Boston Globe

[William Swiggard]

Limiting secrecy under the Patriot Act

By Philip B. Heymann and Juliette N. Kayyem  |  September 22, 2005

IN THE NEXT week or so, Congress is expected to vote on a bill to renew 
certain expiring sections of the Patriot Act. The debate over this law 
is a crucial conversation for our country and for how we protect both 
the security and privacy of a free citizenry.

We are cochairs of the Long-Term Legal Strategy Project for Preserving 
Security and Democratic Freedoms in the War on Terrorism. We brought 
together a wide array of military, intelligence, and law enforcement 
experts, including some of the best minds from both sides of the aisle 
in the counterterrorism field, from the United States and Britain. Our 
report, for which only the two of us are finally responsible, offers 
recommendations on how best to protect civil liberties while confronting 
terrorists.

We studied the toughest questions in the post-9/11 era, including the 
conflicting demands of privacy and security. Particularly relevant for 
the debate over the Patriot Act are our findings on compelled government 
access to private, confidential records in terrorism investigations.

The Patriot Act gave expanded powers to the federal government to seize 
personal records (like those retained by hotels, libraries, and medical 
facilities) in special national security cases where court review is 
either diminished or nonexistent. The act allows the government to 
engage in a fishing expedition, demanding records without tying the 
request to a specific suspect or group (in other words, without 
''individualized suspicion") so long as its stated purpose is to find 
out something about a terrorist threat. For example, Section 215, which 
applies to a wide array of personal records, merely requires that the 
records themselves be sought for an investigation whose purpose is, in 
some way, ''to protect against" terrorism or spying by a foreign power 
-- not necessarily an investigation focused on a specific event, person, 
or organization.

When there is no specific event or organization that the government is 
investigating, relevance or motivation simply doesn't work as any limit 
on gathering information. Investigations undertaken in order to somehow 
protect against international terrorism could, if nothing more specific 
is required, examine any of the lawful activities of any citizen, 
including citizens in no way suspected of any specific link to terrorism 
or crime, such as subscribers of particular magazines. This has 
potentially serious implications for privacy and freedom of speech. Our 
project recommended that the standards for obtaining private, personally 
identifiable information in such investigations -- for example, to 
obtain access to library records -- should be based on individualized 
reasonable suspicion.

We believe that compelled access to personal records should depend on 
whether there is a judicial finding of a link between the records and an 
individual or organization already reasonably suspected of being engaged 
in terrorism or a specific planned or executed act of terrorism -- or of 
being in contact with such a suspect.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/09/22/limiting_secrecy_under_the_patriot_act/
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