<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:21025.wais]
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 212--EMERGENCY
DISCLOSURE OF ELECTRONIC COMMUNICATIONS TO PROTECT LIFE AND LIMB
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MAY 5, 2005
__________
Serial No. 109-14
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Jay Apperson, Chief Counsel
Elizabeth Sokul, Special Counsel on Intelligence
and Homeland Security
Jason Cervenak, Full Committee Counsel
Michael Volkov, Deputy Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
MAY 5, 2005
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 2
WITNESSES
The Honorable William E. Moschella, Assistant Attorney General,
Office of Legislative Affairs, U.S. Department of Justice
Oral Testimony................................................. 5
Prepared Statement............................................. 7
Mr. Willie T. Hulon, Assistant Director, Counterterrorism
Division, Federal Bureau of Investigations
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Mr. Orin S. Kerr, Associate Professor of Law, George Washington
University Law School
Oral Testimony................................................. 18
Prepared Statement............................................. 20
Mr. James X. Dempsey, Executive Director, Center for Democracy
and Technology
Oral Testimony................................................. 27
Prepared Statement............................................. 28
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 51
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan.......... 51
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 212--EMERGENCY
DISCLOSURE OF ELECTRONIC COMMUNICATIONS TO PROTECT LIFE AND LIMB
----------
THURSDAY, MAY 5, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chair of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. The
Subcommittee on Crime, Terrorism, and Homeland Security holds
an oversight hearing today on the implementation of the USA
PATRIOT Act's investigative authority for criminal cases.
Section 212 is covered by the sunset provision of the PATRIOT
Act. The witnesses will discuss the benefits and problems with
section 212 and will provide more detail on how the section
works.
With that said, let me provide a short summary of what
section 212 does and why the section was included in both the
House version that passed unanimously out of this Committee and
in the Senate version of the PATRIOT Act.
Chapter 121 of the Criminal Code provides for what is
unlawful and what is lawful access to stored wire and
electronic communications. These stored communications include
voice mail, e-mail, and phone messages, for instance. The
Federal Criminal Code makes it a crime to access stored
communications unless the access is covered by one of the
specified exceptions.
Prior to the enactment of the PATRIOT Act, there was no
exception for providers to voluntarily disclose information
related to life and limb-type emergencies. There was also a
strange disparity in the law as there was an exception for
communications providers protecting their rights of property to
disclose content information, such as the contents of an e-
mail, but there was no exception to disclose non-content
information under these same circumstances. Section 212
addressed both of these issues.
I look forward to hearing the testimony from our witnesses
today on their support and concern for section 212 and I am now
pleased to recognize the distinguished gentleman from Virginia,
the Ranking Member, Mr. Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman, and I again want to
express my appreciation to you for devoting the time and
attention to the issue of the sunsetted provisions on the
PATRIOT Act by holding this series of hearings that you have
held on the provisions, including the hearing today on section
212, which involves emergency disclosures under the act.
Now, what the hearings so far has revealed to me is the
extent to which we have eliminated many of the checks and
balances to secret access by the Government to private,
confidential citizen communications and information. Section
212 and other provisions--with section 212 and other
provisions, we have effectively changed provisions designed to
protect private information from disclosure without due process
to provisions designed to allow or require indiscriminate
disclosure of information to the Government, and such
disclosures can be made with virtually no detached oversight or
any other checks and balances, such as required notice before
or after the fact, requiring reporting either to a court or to
Congress or to the public, or requiring sanctions or remedies
for wrongful acts or abuses.
Moreover, with the liberal information sharing provisions
that we have, and other provisions, this secretly acquired
information, confidential information, can be spread all over
town without the person to whom the information pertains ever
knowing about it. Further, there still appears to be no
restrictions on how long or by whom the information can be
maintained.
We need to hear how many times these authorities have been
used where no terrorism or imminent threat was involved, or how
many times no criminal proceedings or other actions ensued to
show whether or not the intrusions were warranted. We are left
to simply trust the Government officials to always do the right
thing, at the right time, in the right way, with complete
immunity, without having to bother the court, the Congress or
the public looking over their shoulder while they're doing it.
And, Mr. Chairman, we should use the information we have
gleaned from these extraordinary secret powers that we have
authorized to put an ordinary checks and balances, such as
notice, court oversight, reporting requirements, sanctions,
remedies, and failing to do so would turn on its head not only
the Electronic Communications Privacy Act and the intent of the
fourth amendment of the Constitution, but the healthy mistrust
of Government the Framers of our system intended, as well.
So, Mr. Chairman, we look forward to the testimony of our
witnesses on how these extraordinary powers are being used and
how we can best provide for the necessary checks and balances
that our system calls for and how to work to implement those
checks and balances. Thank you, Mr. Chairman.
Mr. Coble. I thank the gentleman from Virginia, and I'm now
pleased to recognize the distinguished gentleman from Michigan,
the Ranking Member of the full Judiciary Committee, Mr.
Conyers.
Mr. Conyers. Thank you, Chairman Coble, and to my Ranking
Subcommittee Member, Bobby Scott, whose statement I endorse
completely.
I started out 24 hours ago supporting a conditional
extension of section 212. This morning, I am opposed to even
extending it. I want it to sunset.
This is the open door, the crack in the door for almost
anything to happen. And this is a provision in the PATRIOT Act
that has nothing to do with terrorism. So the provision being
sold to Congress as a way to protect our critical
infrastructure from terrorists has been a boon to those seeking
information on everyday crimes, sidestepping the court system
completely, and this section of the PATRIOT Act is not even
limited to cases where danger is immediate. It goes too far and
in too many cases, especially that have nothing to do with
terrorism.
There are no safeguards to ensure that those who scare
Internet and phone companies into turning over customer
information are doing so only when spending that extra hour to
get a warrant is truly impossible. There are not even
safeguards after the fact.
And plainly, there is no justification for avoiding
judicial review or notice to the target that the so-called
emergency is over. Indeed, we afford that courtesy to suspected
terrorists under the Foreign Intelligence Surveillance Act
after an emergency order is not extended by the FISA court. So
I hope that we would extend the same rights to American
citizens suspected of a far less crime.
The Department of Justice has yet to explain how this
section has helped prevent terror attacks or saved anybody's
life or limb from terrorists. Now, we will hear about
kidnappings and computer hackers, but it seems to me that this
has been a little sleeping problem here that I commend the
Ranking Member Scott for putting his finger on, and I am
particularly interested in hearing from witness Dempsey about
the off-the-books surveillance activity and the increasing
storage of communications under control of third parties which
could threaten, if not eviscerate, the fourth amendment.
So I'm happy to join you, Chairman Coble, as we listen to
the witnesses this morning.
Mr. Coble. I thank the gentleman from Michigan, and we have
been joined, as well, by the distinguished gentleman from
Arizona, Mr. Flake.
Gentlemen, it's the practice of the Subcommittee to swear
in all witnesses appearing before it, so if you would please
stand and raise your right hands.
Do each of you solemnly swear that the testimony you are
about to give this Subcommittee shall be the truth, the whole
truth, and nothing but the truth, so help you, God?
Mr. Moschella. I do.
Mr. Hulon. I do.
Mr. Kerr. I do.
Mr. Dempsey. I do.
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative, and you may be seated.
Again, we have a distinguished panel before us. As Mr.
Scott said, we have done this in a very thorough, ongoing way.
I think this is our ninth--eighth, our eighth hearing on this
subject, so we have plowed the field thoroughly.
And gentlemen, I apologized to last Tuesday's panel for my
raspy, gravelly throat. I have fallen victim to the damnable
April-May pollen attack, so you all bear with me. I know it
doesn't sound very good.
Our first witness today is Mr. William Moschella, the
Assistant Attorney General in the Office of Legislative Affairs
at the U.S. Department of Justice. Prior to joining the
Department of Justice, Mr. Moschella served in several
positions in the House of Representatives, including Chief
Legislative Counsel and Parliamentarian for the House Judiciary
Committee. He is a graduate of the University of Virginia and
the George Mason University Law School.
Our second witness is Mr. Willie Hulon, the Assistant
Director of the Counterterrorism Division of the FBI. Mr. Hulon
began his career as an officer with the Memphis Police
Department and joined the FBI as a Special Agent and has served
the agency in several capacities, both as an investigator and
as a supervisor. Mr. Hulon is a graduate of the Rhodes College
and the FBI Academy.
Our next witness is Mr. Orin Kerr, the Associate Professor
of Law at the George Washington University School of Law. Prior
to his current position, Mr. Kerr worked at the Department of
Justice in the Criminal Division's Computer Crime and
Intellectual Property Section and in the U.S. Attorney's Office
for the Eastern District of Virginia. He served as a law clerk
for Judge Garth of the Third Circuit Court of Appeals and for
the United States Supreme Court Justice Anthony M. Kennedy. He
was awarded his undergraduate degree from Princeton University,
a Master's in mechanical engineering from Stanford University,
and his law degree from the Harvard School of Law.
Our final witness is Mr. Jim Dempsey, Executive Director of
the Center for Democracy and Technology, and before I introduce
Mr. Dempsey, I want to thank him. I believe, Mr. Dempsey, is
this your third appearance before us?
Mr. Dempsey. It's my second, Mr. Chairman, but I appreciate
helping you work through these issues.
Mr. Coble. Well, you are apparently not gun-shy because you
came back for another bite. [Laughter.]
It is good to have you with us.
Prior to joining the Center for Democracy and Technology,
Mr. Dempsey was Deputy Director of the Center for National
Security Studies and also served as an Assistant Counsel to the
House Judiciary Committee's Subcommittee on Civil and
Constitutional Rights. Mr. Dempsey is a graduate of the Yale
University and the Harvard Law School.
Gentlemen, as we have previously advised you all, we try to
operate under the 5-minute rule here. We have your testimony.
It's been examined and will be reexamined. But if you would
keep a sharp lookout on the panels that appear before you, when
the amber light appears, that is your warning that the fiddler
will have to soon be paid. You'll have a minute to go. Then
when the red light appears, that will be your signal that your
5 minutes have elapsed.
It's good to have you all with us. Mr. Moschella, if you
will start us off.
TESTIMONY OF THE HONORABLE WILLIAM E. MOSCHELLA, ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, U.S.
DEPARTMENT OF JUSTICE
Mr. Moschella. Thank you, Mr. Chairman. I appreciate to be
before the Subcommittee today. I want to associate myself with
the comments of Mr. Scott. I think the American people would be
heartened--should be heartened to see the hard work of this
Committee.
I would like to personally recognize and thank two members
of your staff, former colleagues of mine. I know a lot of staff
has worked very hard in putting this series of hearings
together, but particularly the work of Beth Sokul and Bobby
Vassar. I know you have recently dubbed him ``the Granddaddy,''
but their hard work is certainly appreciated.
Mr. Coble. If you'll suspend, Mr. Moschella, before I
dubbed him Granddaddy, I got the permission of the Ranking
Member. I did not get Granddaddy's permission. [Laughter.]
Mr. Moschella. I'd also like to indicate that there has
been a tremendous amount of hard work at the Department of
Justice in responding to the hearing request and the needs of
the Subcommittee, and I would like to recognize--and many, many
individuals are involved, but I'd like to recognize two in
particular. First is Mr. Dave Blake of my office, the Office of
Legislative Affairs, and the second is Mr. Matthew Berry.
Without these two individuals, the hearings would not have come
off as well as they had, and we appreciate their hard work very
much.
Mr. Chairman, as you know, 16 provisions of the USA PATRIOT
Act are set to expire on December 31, 2005, including section
212, which we are addressing today. The tools contained in the
PATRIOT Act have been essential weapons in our arsenal to
combat terrorists and criminals alike. For this reason, we
strongly urge Congress to reauthorize all provisions of the USA
PATRIOT Act that are scheduled to sunset at the end of this
year.
Mr. Chairman, you summarized the changes made by section
212. Let me just add an exclamation point on a point that you
made.
Section 212 amended the law to permit, but not require, a
service provider to disclose either content or non-content
customer records to Federal authorities in emergencies
involving immediate risk of death or serious physical injury to
any person. Notably, this provision does not obligate service
providers to review customer communications in search of such
imminent dangers, nor does it impose an obligation to disclose
records once a provider becomes aware of the emergency. It is
purely voluntary authority.
Second, section 212, as you stated, amended the Electronic
Communications Privacy Act, or ECPA, to allow service providers
to disclose non-content information in an effort to protect
their own rights and property. Plainly, section 212 of the
PATRIOT Act allows electronic communication service providers
to disclose either customer records or the content of
customers' communications to a Government entity in any
emergency situation that involves immediate death--immediate
danger of death or serious physical injury. This is analogous
to allowing citizens to tell police that while attending a
party at a friend's house, they overheard two people discussing
a violent crime they were about to commit.
Furthermore, section 212 works in practice. It has been
used often and has already saved lives. I'll give just a few
examples.
Section 212 was utilized recently in a case involving a
series of e-mail threats against an Islamic mosque located in
Detroit, Michigan. In this case, Michael Bratisax and John
Barnett both allegedly sent threatening e-mail messages on
different occasions from their home computers in New York to
the Imam of the Islamic Center of America in Detroit. The
threats included death to the Imam as well as general threats
against all Muslims in America.
The threats were initially reported by the administrator of
the mosque to the FBI, and thereafter, the FBI conducted an
investigation. During the course of the investigation, due to
the life-threatening nature of the e-mail messages, the FBI
contacted an Internet service provider who then provided the
FBI with the requested information the same day the request was
made.
Section 212 permitted the ISP to voluntarily turn over the
necessary subscriber information in this case without fear of
civil liability, which allowed the FBI to identify Bratisax and
Barnett quickly. Both Bratisax and Barnett have been arraigned
and charged with the Federal crimes of obstructing the free
exercise of religion and transmitting threatening
communications in interstate commerce. They are both awaiting
trial.
Section 212 has further proven to be extremely useful in
cases involving missing children. Section 212 assisted
authorities with the rescue of a 13-year-old girl who had been
lured from her home and was being held captive by a man she met
online. When agents received the report from a local police
department that the girl had disappeared the previous day from
her parents' home, they did what all agents do. They
interviewed the parents, girl's friends, one of whom reported
that the girl had discussed leaving home with a 38-year-old man
she had met online.
In the next couple of days, an anonymous caller contacted
the Bureau and stated that he had chatted online recently with
an individual claiming to having taken the girl from
Pittsburgh. Based on that information, the FBI agents in
Pittsburgh quickly requested information from an ISP pursuant
to section 212. With the information provided in response to
that request, agents were able to locate the perpetrator. They
immediately went to his residence in Herndon, Virginia. At his
residence, they rescued the child victim, who was found chained
up in his bedroom, and, in his basement, investigators
discovered what amounted to a dungeon filled with various
torture devices.
The suspect subsequently was arrested, pleaded guilty to
charges of traveling with the intent to engage in sexual
activity with a minor, and sexual exploitation of a minor, and
was sentenced to a prison term of over 19 years. Had the
provision of the information by the ISP been slowed, as it
would if section 212 were allowed to sunset, who knows what
unspeakable horrors this 13-year-old girl would have been
subject to by this dangerous predator.
Mr. Chairman, I urge the Committee to lift the sunset on
section 212 and all the expiring provisions of the PATRIOT Act
and appreciate it.
Mr. Coble. I thank the gentleman.
[The prepared statement of Mr. Moschella follows:]
Prepared Statement of the Honorable William E. Moschella
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Mr. Moschella, you put me in a bind. In order to
be fair to the other witnesses, I gave you an extra minute, so
if you all need 6 minutes, folks, you may take them.
Let me first welcome the gentleman from--the distinguished
gentleman from Massachusetts, Mr. Delahunt, has joined us, and
the distinguished gentleman from Florida, Mr. Feeney. Good to
have you all with us. I think the distinguished lady from Texas
was here, Ms. Jackson Lee, but I think she's gone.
Mr. Hulon, good to have you. Hold on just a minute.
Mr. Moschella, I want to thank you for having singled out
Beth and Bobby. They have indeed done yeoman's work and they
have been assisted by other staffers, too. The staff has
contributed very significantly and very tirelessly in this
effort and I thank you for acknowledging that.
Mr. Hulon, good to have you with us.
TESTIMONY OF WILLIE T. HULON, ASSISTANT DIRECTOR,
COUNTERTERRORISM DIVISION, FEDERAL BUREAU OF INVESTIGATIONS
Mr. Hulon. Thank you, sir. Good morning, Mr. Chairman,
Ranking Member Scott, and Members of the Subcommittee. It is my
pleasure to appear before you today with Assistant Attorney
General William Moschella of the Department of Justice, Office
of Legislative Affairs, to discuss how the Federal Bureau of
Investigations has used the important provisions of the USA
PATRIOT Act to better combat terrorism and other serious
criminal conduct.
At the Committee's request, I will specifically focus on
the emergency disclosure provision of the USA PATRIOT Act,
which is scheduled to sunset at the end of this year, and
provide you with some examples of how this provision has
assisted the FBI's efforts to protect national security. I
think you will find this provision has played an instrumental
role in helping the FBI fulfill its primary mission of
protecting America from further terrorist acts.
Prior to the passage of the USA PATRIOT Act, Federal law
contained no special provision authorizing, even in emergency
situations, the voluntary disclosure by electronic
communication service providers of customer records or
communications to Federal authorities. If, for example, an
Internet service provider voluntarily disclosed information to
the Government, the ISP could have been sued civilly. The
Electronic Communications Privacy Act did not contain statutory
exceptions which allowed disclosures, even if a terrorist act
could be prevented or lives could be saved.
Section 212 of the PATRIOT Act allows a service provider,
such as an ISP, to voluntarily provide the content and records
of communications related to a subscriber if it involves an
emergency related to death or serious injury. Section 212 has
been used often and has saved lives.
Many of the emergency disclosures have directly supported
FBI terrorism investigations. This provision has also been used
to quickly locate kidnapping victims, protect children in child
exploitation cases, and respond to bomb and death threats.
Because many international service providers are located within
the U.S., the FBI legal attaches have also used this provision
to assist foreign law enforcement officials with similar
emergencies, such as death threats on prosecutors and other
foreign officials. In instances where time is of the essence,
giving service providers the authority to voluntarily release
information without a court order or grand jury subpoena
facilitates the Government's rapid response to crisis
situations where the lives of innocent people may be in
jeopardy.
I would like to share with you a few examples which
illustrate the important role section 212 has played in
assisting the FBI in its terrorism investigations.
The first relates to a threat to destroy a mosque in El
Paso, Texas. In the spring of 2004, a threatening e-mail was
sent to the El Paso Islamic Center. The e-mail warned that if
hostages were not released in Iraq, the mosque would be burned
to the ground. FBI agents utilizing section 212 were able to
quickly obtain information regarding the e-mail from electronic
service providers. As a result, Jared Bjarnason of El Paso was
identified, located, and arrested before he could carry out
this threat. Without the emergency access afforded by section
212, the outcome of this incident may not have been as
successful. As it turned out, Bjarnason pled guilty and was
sentenced to 18 months in Federal prison.
In another example, many of the details of which are
classified, the FBI was attempting to identify and locate
suspected terrorists both within the United States and abroad.
Utilizing the provisions of section 212, the FBI obtained
subscriber information from several Internet service providers
based upon a national security need. Subsequently, an
individual was identified who was determined to be
communicating with a known terrorist organization overseas.
Similar results have been repeated throughout many of our field
offices and divisions.
Section 212 was used in another FBI terrorism investigation
involving attacks against U.S. military forces in Iraq. The
investigation determined that a particular terrorist
organization was likely responsible for the attacks and might
be planning further attacks against additional targets.
Pursuant to section 212 of the PATRIOT Act, information was
obtained from an Internet service provider which linked
individuals in this terrorist organization. The information
provided has been invaluable to the FBI and we believe it will
help us locate additional subjects in Iraq.
In a final example, section 212 was used in an FBI criminal
investigation relating to the murder in Kansas of Bobbie Jo
Stinnett, who was 8 months pregnant at the time. Ms. Stinnett
was found murdered in her home. Her unborn child had been cut
from her body with a kitchen knife. An examination of her home
computer revealed that she had been communicating on the
Internet in connection with her dog breeding business. A person
identifying herself as Darlene Fischer posed as a potential
customer. On the same day of the murder, she asked Ms. Stinnett
for directions to her residence.
Upon using 212, FBI agents and examiners at the regional
computer forensic laboratory in Kansas City were able to obtain
information from Internet companies which led to the
identification and arrest of an individual whose true name was
Lisa Montgomery. Montgomery was arrested and subsequently
confessed to the murder. The infant daughter of Mrs. Stinnett
was recovered less than 24 hours after the murder.
Some critics have suggested that the computer service
providers should not be able to disclose customer records or
communications without a court order or grand jury subpoena.
The elimination of the provisions of section 212 would severely
impact the FBI's ability to respond to certain crisis
situations.
First, section 212 allows a service provider to disclose
information voluntarily not only when the Government seeks it,
but when the service provider itself becomes aware of an
emergency that poses a threat to life and limb. To require a
court order or a subpoena in such a case would require the
service provider first to contact authorities and provide
sufficient basis for authorities to seek an order, then would
require authorities to obtain that order, and then provide it
to the service provider. Real-time implementation of this
process would consume precious time in any emergency.
Second, even if in a more unusual case where the Government
seeks information from a service provider in response to an
emergency, obtaining a court order or subpoena could still take
a significant amount of time. In some emergency situations even
a matter of minutes can mean the difference between life and
death.
In closing, I look forward to discussing with the Committee
ways in which the PATRIOT Act has facilitated our ability to
conduct terrorism investigations and am happy to answer your
questions. Thank you, sir.
Mr. Coble. Thank you, Mr. Hulon.
[The prepared statement of Mr. Hulon follows:]
Prepared Statement of Willie T. Hulon
Good morning Mr. Chairman, Ranking Member Scott and Members of the
Subcommittee. It is my pleasure to appear before you today, with
Assistant Attorney General William Moschella of the Department of
Justice, Office of Legislative Affairs, to discuss how the Federal
Bureau of Investigation has used the important provisions of the USA
PATRIOT Act to better combat terrorism and other serious criminal
conduct. At the Committee's request, I will specifically focus on the
Emergency Disclosure provision of the USA PATRIOT Act, which is
scheduled to sunset at the end of this year, and provide you with some
examples of how this provision has assisted the FBI's efforts to
protect national security. I think you will find this provision has
played an instrumental role in helping the FBI fulfill its primary
mission of protecting America from further terrorist attacks.
Prior to the passage of the USA PATRIOT Act, federal law contained
no special provision authorizing, even in emergency situations, the
voluntary disclosure by electronic communication service providers of
customer records or communications to federal authorities. If, for
example, an Internet service provider ((ISP() voluntarily disclosed
information to the government, the ISP could have been sued civilly.
The Electronic Communications Privacy Act did not contain statutory
exceptions which allowed disclosures, even if a terrorist act could be
prevented or lives could be saved.
Section 212 of the USA PATRIOT Act, allows a service provider, such
as an ISP, to voluntarily provide the content and records of
communications related to a subscriber if it involves an emergency
related to death or serious injury. Section 212 has been used often and
has saved lives. Many of the emergency disclosures have directly
supported FBI terrorism investigations. This provision has also been
used to quickly locate kidnaping victims, protect children in child
exploitation cases, and respond to bomb and death threats. Because many
international service providers are located within the U.S., the FBI
Legal Attaches have also utilized this provision to assist foreign law
enforcement officials with similar emergencies, such as death threats
on prosecutors and other foreign officials. In instances where time is
of the essence, giving service providers the authority to voluntarily
release information without a court order or grand jury subpoena,
facilitates the government's rapid response to crisis situations where
the lives of innocent people may be in jeopardy.
I'd like to share with you a few examples which illustrate the
important role Section 212 has played in assisting the FBI in its
terrorism investigations. The first relates to a threat to destroy a
mosque in El Paso, Texas. In the spring of 2004, a threatening e-mail
was sent to the El Paso Islamic Center. The e-mail warned that if
hostages were not released in Iraq, the mosque would be burned to the
ground. FBI Agents utilizing Section 212 were able to quickly obtain
information regarding the e-mail from electronic service providers. As
a result Jared Bjarnason, of El Paso, was identified, located and
arrested before he could carry out his threat. Without the emergency
access afforded by Section 212, the outcome of this incident may not
have been as successful. As it turned out, Bjarnason pled guilty and
was sentenced to 18 months in federal prison.
In another example, many of the details of which are classified,
the FBI was attempting to identify and locate suspected terrorists both
within the U.S. and abroad. Utilizing the provisions of Section 212,
the FBI obtained subscriber information from several Internet Service
Providers based upon a national security need. Subsequently, an
individual was identified who was determined to be communicating with a
known terrorist organization overseas. Similar results have been
repeated throughout many of our field divisions.
Section 212 was used in another FBI terrorism investigation
involving attacks against U.S. military forces in Iraq. The
investigation determined that a particular terrorist organization was
likely responsible for the attacks and might be planning further
attacks against additional targets. Pursuant to Section 212 of the USA
PATRIOT Act, information was obtained from an Internet Service Provider
which linked individuals in this terrorist organization. The
information provided has been invaluable to the FBI and we believe it
will help us locate additional subjects in Iraq.
In a final example, Section 212 was used in an FBI criminal
investigation relating to the murder in Kansas of Bobbie Jo Stinnett,
who was eight months pregnant. Mrs. Stinnett was found murdered in her
home. Her unborn child had been cut from her body with a kitchen knife.
An examination of her home computer revealed that she had been
communicating on the Internet in connection with her dog-breeding
business. A person identifying herself as Darlene Fischer posed as a
potential customer. On the same day of the murder, she asked Mrs.
Stinnett for directions to her residence. Using Section 212, FBI agents
and examiners at the Regional Computer Forensic Laboratory in Kansas
City were able obtain information from Internet companies which led to
identification and Lisa Montgomery. Montgomery was arrested and
subsequently confessed to the murder. The infant daughter of Mrs.
Stinnett was recovered less than 24 hours after the murder.
Some critics have suggested that computer service providers should
not be able to disclose customer records or communications without a
court order or a grand jury subpoena. The elimination of the provisions
of Section 212 would severely impact the FBI's ability to respond to
certain crisis situations. First, Section 212 allows a service provider
to disclose information voluntarily not only when the government seeks
it, but also when the service provider itself becomes aware of an
emergency that poses a threat to life and limb. To require a court
order or subpoena in such a case would require the service provider
first to contact authorities and provide a sufficient basis for
authorities to seek such an order, then would require authorities to
obtain the order and serve it on the provider, and only then would the
critical information be made available. Real time implementation of
this process would consume precious time in an emergency. Second, even
in the more usual case where the government seeks information from a
service provider in response to an emergency, obtaining a court order
or subpoena could still take a significant amount of time. In some
emergency situations, even a matter of minutes might mean the
difference between life and death.
In closing, I look forward to discussing with this Committee the
ways in which the USA PATRIOT Act has facilitated our ability to
conduct terrorism investigations and am happy to answer your questions.
Thank you.
Mr. Coble. We've been joined by the distinguished gentleman
from Texas, Mr. Gohmert, and the distinguished lady from Texas,
Ms. Jackson Lee, is back with us. It's good to have you back
with us, Ms. Jackson Lee.
Mr. Kerr?
TESTIMONY OF ORIN S. KERR, ASSOCIATE PROFESSOR OF LAW, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Kerr. Mr. Chairman, Ranking Committee Member Scott, and
Members of the Subcommittee, it's a pleasure to be here today
to discuss section 212 of the USA PATRIOT Act, a section that I
do support. It's a narrow exception and one quite consistent,
even much narrower than similar exceptions in fourth amendment
law.
I think if we look at what the PATRIOT Act is trying to do
and what the statutory law of electronic surveillance is trying
to do, the goal should be to try to match the protections to
traditional fourth amendment law, the fourth amendment of the
Constitution, which, of course, prohibits unreasonable searches
and seizures, and section 212 does exactly that.
It is essentially the exigent circumstances exception to
the fourth amendment, which says that law enforcement might
ordinarily need a search warrant to, for example, search a
house, enter property, seize property, but, if there are
competing concerns, whether the destruction of evidence, need
to catch a suspect, or some other legitimate law enforcement
need, in effect, the courts have allowed a balancing between
privacy interests and the competing security interests and said
law enforcement can act without a search warrant in an
emergency situation.
And section 212 does just that, although actually in a much
narrower way. The exception is limited to emergencies. It's
limited to protecting human life, serious bodily injury, and, I
think, is quite consistent with even narrower than equivalent
fourth amendment standards.
Without section 212, this is what has to happen. This is
actually what happened at the Justice Department when I was
there before section 212, which is that a provider, say an
Internet service provider, would contact the Government, and
say, ``We want to disclose records.'' The FBI or whatever the
agency on the other side would say, ``We can't accept those
records. We know it makes sense. You should be able to disclose
them. But wait, we can't accept them.''
The FBI or the law enforcement agency had to then contact
the prosecutor. The prosecutor had to obtain a court order,
find a judge, get the order signed, serve the order on the ISP,
and then that would compel the ISP to disclose what, of course,
the ISP wanted to do anyway. It would add a delay of anywhere
from a few hours to maybe a day, and I think it didn't really
serve a strong law enforcement interest. I think there is a
noticed interest, which I will get to shortly, but I don't
think it is served by requiring the Government to get a court
order to compel a provider to do what that provider wants to do
anyway, given the strong, compelling interest.
So, one question is, what is to keep this exception from
swallowing the rule? What is to keep an emergency disclosure
exception from basically becoming the norm? And I think what
keeps that from happening is that privacy is good business. If
you are running an Internet service provider, you don't want to
disclose a lot of information to law enforcement.
Why? Well, one obvious reason is if information is
disclosed, you might get sued. And, of course, you are going to
be very worried if you are, say, at the general counsel's
office in the Internet service provider about the policies in
terms of working with law enforcement, because as soon as you
step over the line of the Electronic Communications Privacy
Act, you are subject to civil suit, and that is just bad
business. It is bad business not only from the standpoint of
getting sued, it is bad business from the standpoint of
customer relations. If you are an Internet user, you don't want
to go to an Internet service provider that you know might be
willy-nilly giving up your information to law enforcement.
People like their privacy. So that creates a strong incentive
from the ISP perspective not to exploit this exception and to
keep the exception narrow.
At the same time, I think there is a legitimate concern
about notice, one problem that arises that was mentioned in the
prior comments. What's to keep this from being completely
secret? Do we want this to be off the books? And I think the
fourth amendment is again the proper guide here. Under the
fourth amendment, the Government is not required to give notice
when an exigent circumstances search occurs. They are required
to give notice when they execute a search pursuant to a warrant
normally, but not during an exigent circumstances search.
What tends to happen is that the notice is provided and the
Government has to then justify its conduct when somebody is
actually charged, indicted in court, and then the defense
attorney files a motion to suppress under the fourth amendment,
saying, ``I think that exigent circumstances, sir, was
unconstitutional.'' There's a constitutional suppression
remedy, and, of course, the court can then review the search
and decide, was this constitutional or not?
What I think needs to change in the Electronic
Communications Privacy Act is that some kind of suppression
remedy needs to be added to have that occur also in statutory
context. What happens now is somewhat odd in that there is no
statutory suppression remedy and no constitutional suppression
remedy. So say you are an Internet customer whose records have
been disclosed unlawfully, whether through a very close call on
law enforcement's part or, say, a more egregious violation of
the statute. You can't then move to suppress the evidence. A
court is not called on to review the Government's procedure.
And I think what needs to happen is there needs to be some sort
of suppression remedy that allows a defense attorney to make a
similar claim the defense attorney would make in the
constitutional context.
I think it would be helpful to have, for example, a good
faith exception, such as there is in the constitutional
context. I'm not saying that there should be a rule that the
slightest error means suppression of the evidence, not at all.
But there does need to be some sort of way of reviewing the
exigent circumstances disclosure beyond the civil remedy,
because at least in the experience of the cases on the books,
it's just extremely rare for a civil suit to be filed,
especially in a criminal case where typically the suspects are
going to be guilty. Most people, guilty defendants, don't file
civil suits under the Electronic Communications Privacy Act. So
a civil remedy, I think, is not the answer and some kind of
statutory suppression remedy would really bring the law into
alignment with the fourth amendment standard.
Thank you.
Mr. Coble. Thank you, Mr. Kerr.
[The prepared statement of Mr. Kerr follows:]
Prepared Statement of Orin S. Kerr
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Mr. Dempsey?
TESTIMONY OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR
DEMOCRACY AND TECHNOLOGY
Mr. Dempsey. Mr. Chairman, Mr. Scott, Members of the
Subcommittee, thank you for the opportunity to testify today.
This series of hearings, and the Subcommittee and the
Committee leadership are to be commended for this series of
hearings, have offered an unprecedented opportunity to
understand the provisions of the PATRIOT Act and how they fit
within the context of the electronic surveillance laws. From
this kind of detailed, objective inquiry, we can attain the
balance that was left aside in the haste and emotion of the
weeks after 9/11.
Like many of the provisions in the PATRIOT Act, section 212
is a good idea without sufficient checks and balances. In order
to understand what is right and what is wrong with section 212
and similar provisions of the PATRIOT Act, consider what are
the three key protections surrounding Government access to
private information under the fourth amendment.
First, as a general rule, access to communication should be
subject to prior judicial approval.
Second, individuals should have notice when the Government
accesses their private data, either before, during, or after
the search.
Third, if the Government acts in bad faith, there should be
consequences, including making sure that the Government cannot
use anything improperly seized, and possibly civil remedies.
These are the three components of a fourth amendment
search, and the three are independent: judicial approval,
notice, and consequences for bad faith behavior. When it is
necessary to create an exception to one of them, that does not
mean that it's necessary to create an exception to all three.
For electronic surveillance, Congress has added a fourth
protection, namely Congressional oversight and public
accountability through routine statistical reporting on how
often these techniques are used.
Now, in the case of the emergency disclosures covered by
section 212 and described by the Justice Department and the
FBI, it is sometimes not possible to obtain prior judicial
approval, and the fourth amendment, as Professor Kerr
explained, permits exceptions to the warrant requirement in
emergency situations. But just because there is an emergency
does not mean we have to dispense with the other protections
normally accorded by the fourth amendment search.
In the normal warrantless search, at least the search of a
home, an office, the person who is the subject of the search is
notified of the search, often at the very time of the search.
In a traditional emergency, break in the door, the bad guy is
there. He is getting the notice. If not, he comes back and
should find an inventory or some indication of a search. And if
the police act in bad faith during a warrantless search, they
cannot use the information they seized.
Under section 212, none of these other protections are
available. That's why I call these off-the-books surveillances
or off-the-books access. Because the information is held by a
third party, there may be no notice ever to the person whose
data is disclosed to the Government. The criminal at least gets
notice at trial. The innocent person whose data is mistakenly
disclosed to the Government under 212 never receives notice.
And because there is no statutory suppression rule under
the historic Communications Act, there may be no consequences
for bad faith behavior by the Government. That is why Professor
Kerr has called for a statutory suppression remedy. Professor
Swire, at an earlier hearing in this series on section 212,
also called for that, another emergency disclosure provision.
Finally, we don't even have the oversight of knowing how
many emergency disclosures there are. I understand that they
may be very large, I've heard from, informally, some people in
the industry, especially the disclosure of cell phone location
information.
In 2002 in the Homeland Security Act, this Committee
mandated a 1-year report from the Justice Department on
disclosures of content under section 212. That report was due
on November 25, 2003, and as far as I know, it hasn't been
submitted yet.
Mr. Chairman, Members of the Committee, we deeply respect
the work of the Justice Department and the FBI. They do save
lives. But the Justice Department continues to misrepresent the
debate before this Subcommittee and before the Congress. Until
Congressman Conyers came in this morning, I had not heard
anybody calling for the sunset of section 212 or any other
provision of the PATRIOT Act. In my view, of course, there
should be emergency exceptions. But the debate here is supposed
to be over checks and balances, and so far, the Justice
Department has refused to engage in that debate, and that's
forcing people like the Ranking Member, Mr. Conyers, to move to
a position of saying, if we can't insert checks and balances
here, if we can't have notice and a reasonable suppression
remedy and some accountability to Congress, then maybe this
should sunset, and I think that would be a shame because I
think there are cases in which this authority is appropriate.
In 2000, Mr. Chairman, this Subcommittee--or this
Committee, rather, did take a look at the broader context of
the Electronic Communications Privacy Act. It did address some
of the changes that would improve the privacy protections,
particularly in response to the third-party storage of data
which falls outside of various protections, and what we need to
do is to create those checks and balances and those
protections, giving the Government the tools that it needs but
making them accountable.
I look forward to working with you, Mr. Chairman, and the
other Members of this Subcommittee and the Committee and with
the Justice Department on trying to achieve those checks and
balances. Thank you.
Mr. Coble. Thank you, Mr. Dempsey.
[The prepared statement of Mr. Dempsey follows:]
Prepared Statement of James X. Dempsey
Chairman Coble, Rep. Scott, Members of the Committee, thank you for
the opportunity to testify today. As we said when we testified at an
earlier hearing in this series, the Center for Democracy & Technology
\1\ (CDT) commends the Subcommittee and the full Committee leadership
for undertaking these important hearings on the PATRIOT Act. The
members of this Subcommittee have devoted considerable time to
understanding the provisions of the PATRIOT Act and how they fit within
the context of the electronic surveillance laws. From this kind of
detailed, objective inquiry, we can attain the balance that was left
aside in the haste and emotion of the weeks after 9/11.
---------------------------------------------------------------------------
\1\ The Center for Democracy and Technology is a non-profit, public
interest organization dedicated to promoting civil liberties and
democratic values for the new digital communications media. Among our
priorities is preserving the balance between security and freedom after
9/11. CDT coordinates the Digital Privacy and Security Working Group
(DPSWG), a forum for computer, communications, and public interest
organizations, companies and associations interested in information
privacy and security issues.
---------------------------------------------------------------------------
CDT's main point in these hearings is that while, of course, the
law needs to keep pace with changing technology to ensure that
government agencies have access to information to prevent crime and
terrorism, those government powers will be no less effective--indeed
will be more effective--if they are subject to checks and balances. The
law needs to keep pace with changing technology not only to ensure
reasonable government access but also to protect privacy, as technology
makes ever larger volumes of information available for the government
to acquire from third parties, without satisfying traditional Fourth
Amendment standards of a warrant and notice. The PATRIOT Act addressed
only one side of this equation, making government access easier without
counterbalancing privacy improvements. Now is the time for Congress to
finish the job and address the privacy side of the equation.
In CDT's view, there is not a single kind of record or
communication covered by the PATRIOT Act to which the government should
be denied access. The question before us--and it is one of the most
important questions in a democratic society--is what checks and
balances should apply to government surveillance powers. With respect
to the particular PATRIOT section at issue in today's hearing, those
time-honored checks and balances should include:
<bullet> First, as a general rule, individuals should have
notice when the government acquires their communications.
<bullet> Second, surveillance techniques should be subject to
judicial review, preferably prior judicial approval, but if
that is not possible, judicial review after the fact, with
sanctions for abuse of the authority.
<bullet> Finally, government surveillance needs to be subject
to Congressional oversight and some public accountability,
including through routine statistical reports.
Section 212 of the PATRIOT Act fails to include these checks and
balances.
PREVENTION OF TERRORISM DOES NOT REQUIRE SUSPENSION OF STANDARDS AND
OVERSIGHT
At the outset, let me repeat some basic points on which I hope
there is widespread agreement:
<bullet> Terrorism poses a grave and imminent threat to our
nation. There are people--almost certainly some in the United
States--today planning additional terrorist attacks, perhaps
involving biological, chemical or nuclear materials.
<bullet> The government must have strong investigative
authorities to collect information to prevent terrorism. These
authorities must include the ability to conduct electronic
surveillance, carry out physical searches effectively, and
obtain transactional records or business records pertaining to
suspected terrorists.
<bullet> These authorities, however, must be guided by the
Fourth Amendment and subject to Executive and judicial controls
as well as legislative oversight and a measure of public
transparency.
SECTION 212--EMERGENCY DISCLOSURES OF E-MAIL AND
OTHER STORED COMMUNICATIONS
This hearing focuses on Section 212 of the PATRIOT Act, relating to
emergency disclosures of e-mail and other stored communications.
Section 212, like several other electronic surveillance provisions in
the PATRIOT Act, has no direct connection with terrorism. It applies
not to intelligence investigations, but to all criminal cases.
Section 212 allows the government to tell an Internet Service
Provider (ISP) or telephone company that there is an emergency and the
ISP or telephone company can then disclose your e-mail, voicemail, or
other stored communications without even a subpoena, let alone a
warrant, and never tell you so that you never have an opportunity to
challenge the disclosure.
-- Increasing storage of communications under control of third parties
threatens traditional Fourth Amendment protections
In our prior testimony, we described the ``storage revolution''
that is sweeping the field of information and communications
technology. ISPs and other service providers are offering very large
quantities of online storage for e-mail, documents, and, in the latest
emerging services, for voicemail. Increasingly, ordinary citizens are
storing information not in their homes but on computer servers, under
the control of service providers who can voluntarily or under
compulsion disclose the communications and never have to tell the
subscribers that their privacy has been compromised.
This technological revolution, coupled with exceptions like Section
212, is eroding Fourth Amendment protections. Traditionally, when
records were stored locally, even if there was an emergency justifying
an exception to the warrant requirement, you would normally receive
notice of the search of your home or office. Yet individuals are never
told of Section 212 disclosures unless the evidence is introduced
against them at trial. Ironically, under 212, if the e-mail of an
innocent person is disclosed by mistake, that person will probably
never be advised that the government has obtained their private data.
-- ``Off the books'' surveillance
Section 212 represents another in a steadily growing series of
exceptions to the protections of the electronic communications privacy
laws. (The computer trespasser provision of Section 217 is another
example.) Section 212 and similar provisions essentially allow ``off
the books surveillance''--they define certain government interceptions
not to be interceptions, and certain disclosures to the government not
to be disclosures.
Once an access to communications or data is excluded from the
coverage of the surveillance laws, not only is it not subject to prior
judicial approval, but there are no time limits on the period covered
by the surveillance or disclosure, no minimization requirement, no
report back to a judge, no notice to the persons who are surveilled
unless and until the government introduces the evidence against them in
a criminal trial, no suppression rule for violating the statute's
standards (no suppression remedy at all if the information is deemed to
be outside the protection of the Fourth Amendment), and no reports to
Congress and the public.
Emergency exceptions are sometimes reasonable, although in an age
when warrants can be obtained by telephone or fax and presumably even
by e-mail, see Federal Rule of Criminal Procedure 41(d)(3), and when
every court should have a duty judge available by cell phone or
Blackberry 24 hours a day, emergency exceptions to judicial oversight
should be extremely rare. And they should be subject to checks and
balances.
-- The potential for government exaggeration of the facts
The crucial thing to recognize about Section 212 is that the
information about the emergency will often come from a government
agent. Rather than going to a judge and getting a warrant, even if time
and technology permitted it, Section 212 permits a government agent to
go to a service provider, say there is an emergency, and if the service
provider reasonably believes there is (even if the government agent was
exaggerating), the service provider can disclose the records with no
liability and no notice to the subscriber. Surely, this is an
invitation to cutting corners, if not more cynical forms of abuse.
Notice also how placing the reasonable belief on the part of the
service provider diffuses responsibility: the stored records provisions
to which this exception was added has no suppression rule for evidence
improperly obtained, and it does not appear that the civil action and
administrative discipline provisions of 18 U.S.C. 2707 would apply to
agents who even intentionally mislead a service provider about the
existence of an emergency.
Other parts of Section 212 are non-controversial: It rearranged
sections 2702 and 2703 of title 18 so that section 2702 now regulates
all permissive disclosures (of content and non-content records alike),
while section 2703 covers compulsory disclosures. Second, an amendment
to the new subsection 2702(c)(3) clarifies that service providers have
the statutory authority to disclose non-content records to protect
their rights and property.
The language of Section 212 covering emergency disclosures of the
content of communications was rewritten by the act creating the
Department of Homeland Security. In some ways the new language is
narrower than the PATRIOT language, while in other ways it is broader
(it allows disclosure not only to law enforcement but to any government
entity), but our concerns and recommendations about checks and balances
pertain to the new language as well. Also, an uncodified provision of
the Homeland Security Act required government entities obtaining the
contents of communications under the new emergency exception to report
to the Attorney General and the Attorney General to file a one-time
report to Congress in November 2003 on the use of the authority.
Someone needs to look for that report.
-- Recommended amendments to establish checks and balances
Checks and balances should be added to Section 212.
<bullet> The person whose privacy has been compromised should
be notified that his information has been disclosed to the
government. This is especially important in cases of mistake--
where the government obtains records on the wrong person, that
person should be notified.
<bullet> There should be a statutory remedy for abuse, barring
the government from using information if it had mislead the
service provider into believing there was an emergency. An
additional or alternative protection would be to make it
illegal for a government official to intentionally or
recklessly mislead a service provider as to the existence of an
emergency. Coupled with notice, this could provide a reasonable
remedy to persons whose privacy was needlessly invaded.
<bullet> To permit ongoing oversight, emergency disclosures of
stored communications to the government should be reported to
Congress in annual, public statistical reports.
THE BIG PICTURE: PROTECTIONS FOR PRIVACY SHOULD BE UPDATED IN LIGHT OF
CHANGING TECHNOLOGY
As CDT has noted before, many of the changes in the PATRIOT Act
appear small in isolation. However, no consideration has been given in
almost five years to other, long-recognized changes that need to be
made to strengthen the privacy protections of the electronic
surveillance laws, including:
<bullet> extending Title III's statutory suppression rule to
electronic communications, a change even the Justice Department
once supported;
<bullet> increasing the standard for pen registers and trap
and trace devices, to give judges meaningful oversight, a
change the full Judiciary Committee supported in 2000;
<bullet> eliminating the distinctions between opened and
unopened e-mail and between relatively fresh and older e-mail,
by bringing all stored e-mail under a warrant standard, another
change the Committee supported in 2000;
<bullet> establishing a probable cause standard for access to
location information, a change this Committee also supported in
2000;
<bullet> requiring reporting on access to e-mail, also
supported by the Committee in 2000.
With this context in mind, it is easier to see why even some of the
minor changes in the PATRIOT Act draw concern, for they are part of a
steady stream of uni-directional amendments that are slowly eroding the
protections and limits of the electronic privacy laws.
CONCLUSION
CDT supports the Security and Freedom Enhancement (SAFE) Act, a
narrowly tailored bipartisan bill that would revise several provisions
of the PATRIOT Act. It would retain all of the expanded authorities
created by the Act but place important limits on them. It would protect
the constitutional rights of American citizens while preserving the
powers law enforcement needs to fight terrorism.
We look forward to working with this Subcommittee and the full
Committee as you move forward in seeking to establish some of the
checks and balances that were left behind in the haste and anxiety of
October 2001.
Mr. Coble. Now, we apply the 5-minute rule to ourselves,
too, gentlemen, so if you all can be as terse as you can when
you respond.
Mr. Hulon, the glaring example you gave about the El Paso
episode, I presume that the agents could not have responded as
quickly as they did prior to the PATRIOT Act, is that correct?
Mr. Hulon. That's correct, sir. They were able to get the
information in regards to the subject who made the threat and
actually go out to make the arrest or make the approach very
quickly.
Mr. Coble. Mr. Moschella and Mr. Hulon, some have argued
that because this exception has been used more in the criminal
context than the war on terrorism, that it is probably not a
good exception. Do you believe this exception is important for
crimes of terror as well as for, say, for crimes of kidnapping
and murder, et cetera? If you will comment on that, Mr.
Moschella, I will start with you.
Mr. Moschella. Thank you, Mr. Chairman. This is a tool that
we would use in both terrorism cases and other cases. As the
one example that I explained to the Committee, this traveler
case of this 13-year-old girl who was brought across State
lines for these illicit purposes demonstrates, this is a
critical tool to save life and limb. When the Congress
originally considered the PATRIOT Act, it knew that it was
amending certain statutes that had general applicability for
all criminal investigation, and this is a needed tool in those
efforts.
Mr. Coble. Mr. Hulon?
Mr. Hulon. Yes, sir. I think it's very important for
terrorism investigations. Some of the examples that might be
cited, of course, are ones that end in prosecution. But in
terrorism investigations, a lot of our work and effort to
detect or prevent an act a lot of times does not end up with a
prosecution that gets public notification. A lot of it goes
with intelligence building that we end up using to further our
intelligence base and also to work toward identifying groups
and individuals that are in support of terrorism.
Mr. Coble. I thank you, sir.
Mr. Kerr, you made what I believe is a good point when you
indicated it would be troubling if the law valued the business
interest of communications providers more highly than
protecting innocent human lives. Is that not what 212
addresses? That is, communications providers should disclose
content information to protect their property and rights, but
no exception prior to PATRIOT, as I understand it, to disclose
information that would protect another human being. Comment on
that, if you would, Mr. Kerr.
Mr. Kerr. Thank you, Mr. Chairman. I think that's exactly
right. The Wiretap Act has long had--and the historic
Communications Act have long had a range of exceptions
recognizing competing interests, whether they are business
interests or other interests. And to be honest, when I was at
the Justice Department before section 212, it always seemed to
me that Congress just had forgotten to add some sort of an
exigent circumstances exception. I used to train FBI agents on
how the statute worked and I remember having to explain to
people, I said, ``You know, you're not going to believe it, but
currently, the statute has no exception for exigent
circumstances like a kidnapping.''
And so I think it's an important step forward and clearly a
good idea to add section 212. I think it does say there are
competing interests and innocent human life is clearly--that's
clearly a very strong competing interest that should justify
disclosure.
Mr. Coble. Thank you, sir.
Mr. Dempsey, in your testimony, you state that the crucial
thing to recognize about section 212 is that the information
about the emergency will often come from a Government agency
and you indicate that that might be an invitation to cut
corners. But is it not a voluntary disclosure at that juncture?
Mr. Dempsey. Mr. Chairman, it is a voluntary disclosure,
but I think that the service provider is going to be
predisposed to make the disclosure. They have immunity for
making a disclosure if they believe, in good faith, that there
is an emergency, and they will obviously be predisposed to
believe whatever the Government tells them. They cannot be sued
civilly if they make the disclosure. They never have to tell
their customer that they've made the disclosure. And they, in
fact, might face some liability if they don't make the
disclosure and somebody ends up injured. So, I think the whole
presumption has shifted toward the disclosure with no incentive
on the other side.
At some level, the service provider should have--I'm not
questioning the service provider immunity when they believe in
good faith that there's an emergency. That makes it possible
for the Government to come in, breathless, a little bit
exaggerating, perhaps, or believing, rightly or wrongly, that
there's an emergency when there isn't, and at that point,
there's no accountability. There's no accountability, I think,
for the Government, because if the Government is misleading, as
we have talked about, they suffer no consequences, either.
Mr. Coble. I thank you, sir. I see my time has expired.
Before I recognize the gentleman from Virginia, I have a
physician's appointment, hopefully to help me overcome this
malady that you all are having to suffer with me, and I want to
thank the panel for being here in case I don't return. I've
asked the distinguished gentleman from Florida if he would take
the gavel in my absence, and I now recognize the gentleman from
Florida--from Virginia.
Mr. Scott. Thank you, Mr. Chairman, and I hope you're
feeling better.
Let me get a little background where we are. In 1986, we
passed the Electronic Communications Privacy Act and that is
the act which prohibited electronic ISPs and what not from
disclosing information violating your privacy. Prior to that,
was there anything to prevent an Internet provider from just
voluntarily giving up your private information?
Mr. Kerr. Probably not.
Mr. Scott. And as a result of the----
Mr. Kerr. Other than their terms of service, but----
Mr. Scott. A contract?
Mr. Kerr. Yes.
Mr. Scott. Now, after '86, there was no exception for
emergencies?
Mr. Kerr. There was an exception for information relating
to a crime that was inadvertently discovered. If the ISP
inadvertently discovered a threat or information about any
crime, they could disclose that, but I think it's correct that
there was a little bit of oversight or Congress was not fully--
that was the first effort. I think they probably did leave out
the emergency exception.
Mr. Scott. Now, what is the--is there any problem, Mr.
Dempsey, proceeding under the emergency but requiring a warrant
as soon as practicable?
Mr. Dempsey. Well, that's an interesting point, because
under title III, which is the basic wiretap law, not for stored
but for live interception, there is an emergency exception.
That was created in 1968. And where there's an emergency
exception under title III for live interception, the Government
must then go and apply for an order after the fact and if the
order is denied, it must terminate the surveillance and cannot
use anything acquired during the claimed emergency if it turns
out that there wasn't justification.
Mr. Scott. Is there a poison fruit problem with that
information that was acquired in the meantime?
Mr. Dempsey. I think they would be prohibited from using it
further in their process.
Mr. Scott. Mr. Dempsey, you talked about the consequences
of failing to--failing to get the information if it was not an
emergency and suggested that in bad faith, there should be some
consequences. Some of us have a problem with the bad faith, the
good faith exception because you can very easily in good faith
trample on somebody's rights. And, in fact, the good faith
exception gives you a perverse incentive to fail to educate
your law enforcement officials and just hire good old boys that
just didn't know any better, so they get to court, ``I didn't
know.''
Mr. Dempsey. Congressman, I----
Mr. Scott. I'm in good faith.
Mr. Dempsey. I definitely agree with you or see where you
are coming from here. In my recommendations today, I did not
want to go back and revisit one way or the other the good faith
exception to the exclusionary rule. The statutory suppression
rule under title III, under the live interception law, has
basically been interpreted to have almost a good faith
exception, as well. It is not applied in the case of minor or
inadvertent noncompliance. So I was taking the good faith
exception as a given here and saying that, at the least----
Mr. Scott. In other words, we'll just debate that at
another point.
Mr. Dempsey. That's what I was saying.
Mr. Scott. Okay. One of the problems with the exclusionary
rule generally is the safeguard, and, I think, frankly, for the
defendant to protect people, the exclusionary rule is the only
meaningful sanction that there is. As has been pointed out,
suing somebody isn't going to get you anywhere. The court
jailing of police officers for messing up a warrant isn't going
anywhere. The exclusionary rule actually works because it
removes the incentive to mess up.
One of the problems in this case is that if you're not a
defendant, you have no standing to complain. Is that, Mr.
Moschella, is that right? If they get my information and you're
the defendant, I have no--if they illegally got my information
and they use it against you, I have no standing. You might have
some standing to complain, but I have no standing to complain,
is that right?
Mr. Moschella. Mr. Scott, I think that the determination is
a fact-specific one as to whether or not the Frank amendment,
it's the Frank amendment, section 2707 of title 18, does apply
to this entire chapter.
If I may add one thing to what Mr. Dempsey added, I am not
aware--there certainly is no good faith exception written into
the statutory exclusionary rule. In fact, that rule is so
strict that if you had two criminals, two co-conspirators who
didn't trust each other and were illegally taping each other,
so violating the Wire Act, and that information came into the
possession of the Government to use against one of them, we
would not be able to use it. That's how strict that statutory
suppression provision----
Mr. Dempsey. I was talking about Government behavior,
Congressman.
Mr. Feeney. [Presiding.] Thank you. The gentleman's time
has expired.
The gentleman from Arizona, Mr. Flake, is recognized.
Mr. Flake. I thank the Chairman and the witnesses.
With this and other sections of the PATRIOT Act, we often
hear from the Department of Justice with regard to whether you
need a statute to protect this or that, well, we would never do
that, or our agents, FBI agents would never do this or that.
Mr. Hulon, can you tell me, have there been instances where FBI
agents have been reprimanded or disciplined for filing false
affidavits or misleading affidavits before a FISA court or
anywhere else?
Mr. Hulon. I don't recall that there have been situations
where that has occurred recently. I'm just not aware, sir.
Mr. Flake. According to Judge Lambert, a FISA court did bar
one FBI agent from ever appearing before the court again for
filing a series of misleading affidavits. Were you aware of
that?
Mr. Hulon. I'm not aware of the details on that one, sir.
Mr. Flake. Is anyone here aware of that? Mr. Moschella,
have you heard of that?
Mr. Moschella. I'm generally aware of it, yes, sir.
Mr. Flake. Okay. Do you know of any action that has been
taken against this agent?
Mr. Moschella. I'd have to check into that.
Mr. Flake. Could you get back to my office on that?
Mr. Moschella. Yes, sir.
Mr. Flake. That goes to one of the issues that I think a
lot of us have. We're kind of told--the last defense is,
``Well, you don't need a statute for that because our agents or
this Department just wouldn't do that.'' But yet we hear of an
instance here where that did occur and you're unable to tell us
whether that agent was even disciplined. So it would be
useful--Mr. Dempsey, can you comment on that?
Mr. Dempsey. I think you're right, Congressman. I think
that it is very hard to think of a case where agents have been
disciplined, and the case you refer to with the FISA court, of
course, I think that that issue was addressed in the PATRIOT
Act, as well, in a way that that agent would no longer be doing
anything wrong for what he did in those cases before the FISA
court.
Mr. Flake. Is that some good faith exemption because of
him, or----
Mr. Dempsey. No, that has--I mean, I think the issue there
had to do with what was at the time believed to be the primary
purpose test. My understanding of it is that that agent was
claiming that there was no criminal interest in the subject
when, in fact, there was. Now, the fact that there's a criminal
interest in a subject, a FISA court can still grant the order.
That was sort of a strange byproduct of the way that the FISA
got misinterpreted pre-PATRIOT Act.
Mr. Flake. When there are provisions in the PATRIOT Act
which really require the court or the judge of jurisdiction or
whomever, that they shall issue a warrant of some type, that it
really is incumbent on the Department or the agency to police
their own to make sure that individuals are not filing
misleading affidavits. If there is one example that we know of
here, and the agency, the Department has taken no action at
all, then that doesn't inspire much confidence on the part of
Members here that the agencies and the Department can police
their own. So I would just bring that up.
Mr. Dempsey. Congressman, and again, this partly goes to an
issue that I know you're concerned about, which is the issue of
notice----
Mr. Flake. Right.
Mr. Dempsey.--which is how is anybody ever going to know
that there's been a violation if they haven't been told, and
even the Frank amendment to the PATRIOT Act would almost never
get invoked and there would be no discipline unless somebody
complained. And if the person whose privacy has been
compromised is never told that the Government has accessed
their information, there is no complaint, no remedy, no
consequences.
Mr. Flake. Now specifically--oh, go ahead.
Mr. Moschella. Mr. Flake, while I don't know the specific
disposition of that particular pre--my recollection was that
was a pre-PATRIOT Act series of affidavits, I can tell you that
the Department does review these matters and does take action.
There was a rather highly publicized case in which, in a
prosecution, the Department learned that certain materials were
not provided to the defendant and on the Department's motion
vitiated the prosecution in conviction. We do take these things
seriously. We follow the law. We instill some training, the
need to follow the rule of law, and it is absolute high
priority for the Department.
Mr. Feeney. The gentleman's time has expired. I do believe
we are going to try to have another round, Congressman.
Mr. Flake. I thank the Chairman.
Mr. Flake. The gentleman from Michigan is recognized.
Mr. Conyers. Thank you, Mr. Chairman.
We have an interesting situation here. Two former Judiciary
staffers, Moschella and Dempsey. We trained you guys.
[Laughter.]
One says, no checks and balances are needed in this
provision. Let's just reinstitute it and let it go. The other
at the other end of the table says, well, there's got to be
some safeguards put into this situation.
Now, we just checked what the definition of emergency is,
if you could call it a definition. Death or physical injury.
Well, that could happen in anything. I mean, for that to be--
that is not a serious judgment. What section is that in--
section 2701.
Now, I ask you, what's with this emergency provision, Mr.
Dempsey? We're living in an age of Blackberries, faxes, e-
mails, everything. I mean, it's not like you're on a desert
island and you've got to make this judgment real quick.
Anything can bring about injury. We could be talking about a
misdemeanor.
So with the greatest respect for the Ashcroft PATRIOT Act,
which was substituted--which substituted the Judiciary
Committee's PATRIOT Act in the Rules Committee that awful
night, what's with the emergency provision? We have, I think,
implied good faith exceptions running throughout this. If
they're not implied, they're used in real life situations. And
we changed the reasonable belief proposition for emergencies to
good faith. We've lowered the standard. So who would get
injured or killed or put in harm's way if this provision in a
thoughtful discussion and study of the Subcommittee and full
Committee of Judiciary, we dropped it.
Mr. Dempsey. Again, Congressman, I'm actually going to
argue in favor of keeping this provision. I agree----
Mr. Conyers. But I want to know--I know there's a great
argument in favor of keeping it, but what harm would come if we
didn't keep it?
Mr. Dempsey. I think there are--and I'm going to make the
Justice Department's case for it here--I think there are
circumstances that are true emergencies, and what we try to do
in this provision is we try to come up with the right set of
words that would narrowly define it. In fact, if you go back to
the PATRIOT Act provision, it talked about immediate.
Mr. Conyers. Okay. Give the----
Mr. Dempsey. And immediate was dropped, and we've gone back
and forth----
Mr. Conyers. Give me not ten or five, give me one example
of a good faith emergency that would be disadvantaged if this
provision--if the PATRIOT Act--if this were sunsetted. Describe
something to me. Don't point to Moschella. You two were both
trained together, so I don't want you playing us off, as they
say, now that you're back before the Committee on the other
side. No, there isn't any, that's why.
Mr. Dempsey. No, I think, again----
Mr. Conyers. There isn't any that you can't immediately get
your order without terming it an emergency. Life is,
everything's an emergency in criminal justice.
Mr. Dempsey. Well, that I agree with at some level,
Congressman, which is why I say we need to look at these other
checks and balances. When you're in the heat of the
investigation, every case is a priority.
Mr. Conyers. Of course.
Mr. Dempsey. I agree with that. But some of them really
are. You may think that they all are, but some of them really
are. And I think if you scratch some of these cases, they prove
not to be as serious----
Mr. Conyers. Of course they don't----
Mr. Dempsey. But some of them are, I think.
Mr. Conyers. Well, I know you think that, but that's why
you cannot give me one example. Everything is an emergency. You
don't need to write in something this broad and then have the
Department of Justice tell you, we don't want any checks or
balances.
Mr. Feeney. The gentleman's time----
Mr. Conyers. Against some checks or balances or none, I'm
for dropping this provision.
Mr. Feeney. The gentleman's time has expired, mercifully
for some of the witnesses, but, Mr. Moschella, in fairness,
whether it's real or a genuinely good faith hypothetical, do
you have any response to some very penetrating questions that
Mr. Conyers asked about why this provision and a definition of
emergency may be appropriate or not?
Mr. Moschella. Well, Mr. Conyers cited to the statute and
the statute specifically talks about death or serious physical
injury, not just any old emergency, and I would submit that the
examples in our testimony are examples where delay could have
resulted in death. I did not explain the case of the 88-year-
old woman who was kidnapped in Wisconsin. This is a case, I
think it may have been in Chairman Sensenbrenner's district or
it was near to his district. She was kidnapped, and we had
information that we knew if we went to the ISP they would help
us locate this individual. She was put in a shack during the
winter, in the cold winter in Wisconsin. Luckily, she did not
die. It was a freezing cold series of four nights, and we were
able to save her.
Mr. Conyers. Without this provision, she would have died?
Mr. Feeney. Reclaiming my time, I don't think the witness
testified to that, but did say that there was the potential for
damage, and also in or near the gentleman from Michigan's
district, we had the issue with the mosque that the FBI
identified a threat to, but only because they had the emergency
access to the ISP, as I understood it, where they were able to
identify the two individuals engaged in the potential threat to
kill the Imam and others practicing at the mosque. Am I under
the wrong impression, Mr. Moschella or--Mr. Hulon, go ahead.
Mr. Hulon. Yes, sir. Actually, those examples are examples
of emergencies where we did use that provision of the statute
to get the information very quickly and respond. And when
you're dealing with a situation like that where you have a
threat of death or bodily injury, if there is an opportunity
for us to get that information and move on it very quickly
without delay, then that's in the benefit of the Government as
well as the potential victims.
Mr. Feeney. But in fairness to Mr. Conyers's question, the
truth is, we can't prove that but for section 212 there would
have been this death to the 88-year-old or the Imam or anybody
else. It's just that there potentially was enhanced death
threat.
Mr. Moschella. Mr. Feeney, I don't know that to a
metaphysical certitude. What I can tell you is that when the
FBI went into this home in Herndon and found a 13-year-old girl
chained up in the bedroom of the sexual trafficker, the
individual who traveled with the young child, does anyone
reasonably believe that he was not--that she was going to be
damaged even further? I don't think anyone could reasonably
come to any conclusion but that.
Mr. Conyers. Chairman----
Mr. Feeney. In deference to--I have a great amount of
respect. I will yield briefly if you won't take too much of my
time.
Mr. Conyers. One sentence, Chairman Feeney, referencing the
Michigan case. Bratisax and Barnett have been arraigned and
charged with the Federal crimes of obstructing the free
exercise of religious beliefs and transmitting threatening
communications in interstate commerce. Now tell me about the
emergency involved in those acts, assuming they were found
guilty.
Mr. Feeney. I'm going to let you follow up in writing on
that because I've got a limited amount of time, and I, out of
respect, wanted to let the Ranking Member ask his question.
Now, Mr. Moschella--actually, Mr. Kerr, Mr. Dempsey does
make some good points. If I'm, for example, typing stuff on my
computer, perhaps over the Internet, then there is this
theoretical question. Is it more like writing stuff in my own
personal diary or is it more like speaking in the public
square. The one example we had today was somebody attended a
party and overheard conversations about some imminent threat to
do violence.
Isn't it appropriate at some point that if somebody's
Internet communications have been, for example, appropriated by
the FBI legitimately under 212 but they turn out to be a false
alarm, aren't I entitled to find out at some point if I was the
person that typed that language in, that the Government now has
some of my personal thoughts, communications, et cetera,
because, right now, there's no provision in 212 to notify
anybody ever, is there?
Mr. Kerr. Right now, there is no notice provision outside
of--well, there are a couple of notice provisions. One would be
in the wiretap context following a wiretap where the Government
needs to inform the people----
Mr. Feeney. I'm talking about the computer example.
Mr. Kerr. That would apply. I believe it applies also in
the Internet context----
Mr. Feeney. Or stored.
Mr. Kerr. For example, Government access to stored Internet
communications pursuant to less process than a warrant does
require prior notice. There are some notice requirements.
To be honest, I think it's a difficult problem. The
traditional fourth amendment model is very light on notice.
There's not a lot of paperwork in traditional fourth amendment
law. When the Government gets a warrant, of course, that's a
separate story. Issuing a subpoena will provide notice to
whoever receives the subpoena. The law hasn't traditionally
done that, but maybe should do more in the electronic
communications context.
Mr. Feeney. My time has expired and I recognize the Ranking
Member of the Subcommittee, Mr. Scott. I'm sorry, actually, the
Congressman from Texas, Ms. Jackson Lee, you're recognized. A
moment ago we didn't have anybody that hadn't asked on that
side, so Congresswoman Jackson Lee, you're recognized.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Let me be--the testimony of the witnesses, and thank you
for your indulgence. There is a matter on the floor that I had
to debate. But the witnesses' testimony, I am not going to
probe specifically as to the comments of your testimony as much
as I am going to probe the Achilles heels or the failings of
section 212.
Let me just, for framework, just enunciate that as I read
it, section 212 allows a phone company or Internet service
provider to give communication records and content to the
authorities in emergency situations. The emergency situation
does not have to be terror-related, and in fact, all of the
examples that the Justice Department has related to us are
dealing with ordinary crimes and kidnappings and bomb threats.
It is imperative that we come together, as we did after 9/
11, to deal with the idea of homeland security. But the word
``emergency'' and no definition disturbs me.
The PATRIOT Act, for many of us, is an extension of powers,
powers that this country already had. One of, I think, the more
serious aspects of being safe is the collection of
intelligence. That's where I think the most important focus is.
These various provisions are allegedly to contribute to
collecting intelligence. At the same time, there is no bar to
use them for any myriad of reckless, random activities that may
or may not provide for the security of this nation.
We are a nation of laws. We need to enforce them. We need
to protect our nation. But we're also a nation of civil
liberties and balance.
Mr. Dempsey, you said that there is a place for the PATRIOT
Act, and I would agree with you. There is a place for the
PATRIOT Act that this Committee worked through and passed out
of Committee unanimously. Mr. Sensenbrenner, Mr. Conyers, and
the entire body voted for the PATRIOT Act, from conservatives,
if you will, to progressives, because we understand reality.
I'm going to ask a question across the board. This broad
term emergency, not defined, may be ultimately defined by court
cases, seems to be overbroad and undefinable. Emergencies can
be of any kind. Emergencies can be because I don't want to
bother to go through the normal traditions of seeking a PC,
getting a probable cause, and getting a warrant. Emergencies
can be because I'm overworked. Emergencies can be because I'm
understaffed. Emergencies can be because I don't like these
guys. Emergencies can be because they practice a different
religion from the general population. Emergencies can be
because their neighbor next door is a problem. Undefinable and
dangerous, from my perspective.
So I'll start with Mr. Dempsey. Where do we narrow the
focus, and am I highlighting the problem, and is 212 fixable?
Mr. Dempsey. I think you're right on target and I think
that 212, like every other provision of the PATRIOT Act, is
fixable. But I've ended up at this hearing arguing with my good
tutor, the Ranking Member of the Committee, because the Justice
Department, and I've been defending the PATRIOT Act here, but
they've been unwilling to come forward and talk about and
engage on these checks and balances. They want the authority,
and every one of these, in my view, has a legitimacy to it, but
they don't want to engage on the issues that the Members of
this Subcommittee and of the full Committee across the board in
2001 and now again want to engage on. How do we build in
accountability? How do we build in oversight? Tell us exactly
how many times----
Ms. Jackson Lee. And I'm going to allow him to do that
because my time is short. You've raised a probative question.
Mr. Moschella and Mr. Hulon and Mr. Kerr, let me just simply
say, I want to give you the tools, but I come from a history
where laws have been used against populations like the one I
happen to belong in, one, an American, but also an African
American, and we notice that the laws are used not from a
terrorist perspective, but certainly adversely to our
population in the '60's and the '50's and the early 1900's.
Let me, Mr. Moschella, are you willing to look at the
points, or the Justice Department, at the points of concern
that are being raised, I guess by this Committee, maybe on both
sides of the aisle, in terms of the looseness of 212 and the
ability for this to be, if you will, a fishnet to see what we
can haul in?
Mr. Moschella. I'd like to make a couple of points. The
first is to reiterate what the Attorney General said at the
full Committee hearing. He said that he wanted to listen to
criticisms and engage in that discussion, and if there were
things that needed to be fixed, he is certainly open to doing
that.
With regard to your specific question about whether
emergency is so broad, the statute specifically says that the
emergency must involve the immediate danger of death or serious
physical injury, so I would respectfully disagree that it is
too broad.
I'd also make this point, and I think Professor Kerr's
written testimony is instructive. In his testimony, he talks
about exigent circumstances and he views this emergency
provision as, in a way, coextensive as the exigent
circumstances doctrine in fourth amendment jurisprudence.
Actually, this is much narrower because it only deals with
danger to life and limb. He has a quote in his testimony from a
Ninth Circuit case, which I won't read to you. I would just
point that out, that this is even narrower than the exigent
circumstances exception that we find in fourth amendment law.
Ms. Jackson Lee. The question is the perception that is
given to those definitions. There can be a myriad of
perceptions by law enforcement officers attached to murder and
threat, and there is no defined criteria to make those
determinations.
Mr. Hulon?
Mr. Lungren. [Presiding.] The gentlelady's time has
expired.
Ms. Jackson Lee. I thank the gentleman. I had asked Mr.
Kerr and Mr. Hulon. Is it possible to ask unanimous consent for
them to answer the question, answer that question?
Mr. Lungren. You can ask unanimous consent. Okay. So
ordered.
Ms. Jackson Lee. Thank you very much for your courtesies,
Mr. Chairman and colleagues.
Mr. Hulon. Thank you. In regards to your question about
emergencies and the fact that the statute has not been used for
terrorism, it has been. The example that I gave of the threat
to burn down a mosque, I mean, that's considered terrorism just
like the threat to the mosque in Detroit as well as the Imams.
Those are strictly--those are emergencies where there is a
threat to do bodily harm or to kill individuals that we would
address under the terrorism program.
So I would say that when we do that, we're looking at using
this statute to respond where there is an immediate threat so
that we can get there and respond to that crisis. And when
you're talking about responding to a crisis, minutes add up. In
the meantime, we can say, well, we have a statute or we have a
provision that we can use. We would do that.
And we do use that statute or that provision diligently and
not abuse that, and the examples we gave were in regard to
responses that had to do with life and death, just like the
example I gave of Mrs. Stinnett. I mean, she was already dead
and murdered, but her child was still alive and that child was
recovered. That was not a terrorism case, but that was one that
really merited us responding quickly. Thank you.
Ms. Jackson Lee. Mr. Kerr?
Mr. Kerr. I'll just respond briefly. The text of section
212, I think, is quite narrow. The idea of an emergency
involving only death or serious bodily injury is quite narrow.
The exigent circumstances exception, in contrast, is extremely
broad, some of the language used. Some consequence in properly
frustrating legitimate law enforcement efforts can justify an
exigent circumstances search. So that's quite broad and the
statutory language here is actually much narrower by
comparison.
I think in terms--if the concern is that courts may
construe that language more broadly, or worse, law enforcement
may construe it more broadly, I think the answer is some sort
of statutory suppression remedy that puts the issue before a
court and allows a court to further define what that language
actually means.
Ms. Jackson Lee. Thank you. Mr. Chairman, I conclude by
just saying that the Barnett-Bratisax case--basically, Mr.
Hulon, they're being charged with free exercise of religion, or
obstructing the free exercise of religion and they are waiting
on trial, and so--and transmitting threatening communications
in interstate commerce. I'd just simply say that judicial
review would be warranted, I think, and I don't think--I've
given PCs, and I haven't been on the Federal bench, but I've
given probable cause warrants at 12 midnight as a judge in
Houston, Texas. I know we can act quickly and I just don't see
why we should not have that provision and use it usefully here.
I yield back, Mr. Chairman. Thank you.
Mr. Lungren. The gentlelady's time has expired.
I'll take 5 minutes now. Mr. Moschella, I'm not concerned
about the narrowness of the scope of this particular emergency
provision. It seems to me you can't get much narrower than
immediate and life or limb. But what I am concerned about is no
judicial review whatsoever, as I understand it, under these--
I'll call them exigent circumstances.
What would be the harm in requiring some review by a court
after the fact as a means of assuring those who are concerned
that this exceptional power, and it is an exceptional power, I
think we have to recognize that. I mean, I think we have--I
realize constitutionally we don't have the expectation of
privacy, but most people, I think, have an expectation of
privacy of their stored communications being held by a third
party. In fact, most people don't really understand how it all
works. They think it's in their machine.
What would be the problem with requiring, and I don't know
how we would define it, within a reasonable period of time or
within a certain number of days or at the conclusion of the
investigation, an application to the court at that time for the
court to review it, and at that time, if it showed that there
was information of a third party that somehow had come to the
attention of the Government, that the court could make the
determination as to whether that third party ought to be given
notice that their information had been, quote-unquote, exposed
to the eyes of the Government?
Mr. Moschella. Well, in this circumstances, Mr. Chairman,
I'm not sure which court one would go to. In the grand jury
context in which a U.S. Attorney is subpoenaing similar sorts
of records from a bank, for example, and these are the same--
the expectation of privacy is just about the same in the
physical world as it is in the online world in these cases.
We're not reporting back to the judge every time we get a
return on a grand jury subpoena. Again, I don't----
Mr. Lungren. No, but this is an extraordinary circumstance,
as you recognized. We're giving an extraordinary grant of
power, which I think is appropriate because we're talking about
very few circumstances. If that's the case and there is the
concern that arises from others that, as much as I appreciate
law enforcement, we're not perfect. I had my disagreements with
the FBI when I was Attorney General in terms of certain
investigations and so forth, although I think we're all trying
to do the right thing, but we make mistakes.
Because we're talking about something that's very, very
important, the concern that people have about Government
getting too intrusive, too large, what's wrong with having some
sort of mechanism by which at least we have the interposition
of a third party that is a magistrate, a judge, to take a look
at it after the fact to see if, in fact, it was appropriate,
and also to make the judgment as to whether or not someone
ought to be given notice that their information has been viewed
by the Government, not that they would do it in all
circumstances, but the judge would make that determination.
Mr. Moschella. Well, we certainly would want to take a look
at whatever proposal came up. I just want to make this point.
The records that we're talking about, for example, basic
subscriber information, there is little expectation of
privacy--it's information that we obtain via subpoena in
countless cases on a daily basis and I don't----
Mr. Lungren. But this is not done pursuant to subpoena,
correct?
Mr. Moschella. No.
Mr. Lungren. What we're talking about here is outside of
subpoena.
Mr. Moschella. Well, in the emergencies, that's correct.
Mr. Lungren. That's all I'm talking about, emergency
scenario here.
Mr. Moschella. Well, but in the subpoena context under
ECPA, we're not going to the judge. There are some categories
of records under ECPA that a court order is necessary with
differing standards, whether it's relevance or whether it's
probable cause. But in the case of subscriber information, for
example, a mere subpoena would suffice.
Mr. Lungren. I don't think I heard an answer from you about
whether or not the Administration would be opposed to
considering the suggestion I made.
Mr. Moschella. We certainly would consider it.
Mr. Lungren. Mr. Dempsey, what do you think about that kind
of an approach?
Mr. Dempsey. I think you're right on track. That's very
similar to the process that occurs in emergencies under title
III and it does provide that sort of--you accommodate the
emergency, you save the life, but it gives you that oversight,
that judicial oversight, in cases where there was a mistake or
where there was some overreaching, and that's all we're talking
about here.
Mr. Lungren. Thank you very much. My time has expired.
Mr. Delahunt?
Mr. Delahunt. Thank you, Mr. Chairman. You anticipated my
own line of questioning.
Mr. Lungren. I was just trying to shorten the gentleman's
time.
Mr. Delahunt. I appreciate that, but I'll try to fill it up
anyhow. [Laughter.]
I mean, the reality--let's be practical. I mean, the Frank
amendment, I supported it. It was well intentioned. But for a
citizen to sue the Government, it's extremely rare. It requires
an extraordinary amount of resources that most people simply
don't have. So, with all due respect.
And we have a history in various investigatory agencies of
conduct that is unacceptable. I mean, I was unaware that in a
FISA application, was it an FBI agent that has been excluded
from appearing before the FISA court again? Was that an
accurate----
Mr. Moschella. This is very, very old news. This is quite
some time ago----
Mr. Delahunt. No, I'm not suggesting--it's new news to me,
and I'm not trying to get into it, but what I'm saying is it's
evidence that, on occasion, there are problems, and that's what
we are trying to speak to in terms of talking about the
concepts of checks and balances, because we vest such
incredible authority in those who are conferred the authority
to invade other people's privacies under the color of law.
So while these instances hopefully are rare, I believe it's
our responsibility to ensure that there is as much
accountability and transparency as possible without
jeopardizing our national security. And again, I look to these
provisions, and I think some of them, clearly, they have a
certain legitimacy. But we're now at a different point. Now, we
can go back and examine and think of what is necessary to
secure the confidence of the American people in terms of what
we did, and I think that's what you're hearing on this side up
here.
You know, I listened to both Mr. Dempsey and Professor
Kerr. What's the problem with a statutory exclusion? Mr.
Moschella?
Mr. Moschella. You mean a statutory suppression remedy?
Mr. Delahunt. Exactly.
Mr. Moschella. Well, there certainly is for any
constitutional violation----
Mr. Delahunt. I'm not talking about a constitutional
violation.
Mr. Moschella. Right. I just want to point out that is
available.
Mr. Delahunt. I understand it. I'm talking about a
statutory suppression provision.
Mr. Moschella. Well, we certainly would be concerned if the
Committee moved in that direction. There are any number of
internal mechanisms that we use to address these problems,
but----
Mr. Delahunt. See, but that's----
Mr. Moschella. Well, let me say----
Mr. Delahunt. Okay.
Mr. Moschella.--the statutory exclusion would defeat the
truth-seeking nature of the criminal process and would only
really benefit the criminal defendant.
Mr. Delahunt. I have to say, there are some--you know, even
in a constitutional fourth amendment exclusionary, I'm sure
that what the Founders were considering is the balance of
public safety and the balancing of constitutional rights and
privacy, and I dare say the same analogy exists here.
Hopefully, it would be very, very rare. But we don't--we've
proven again and again and again, we don't have those internal
mechanisms that operate all the time, that work to a degree
that is satisfactory to the American people. That's what I'm
talking about.
Mr. Dempsey?
Mr. Dempsey. Well----
Mr. Delahunt. Before you go, Mr. Kerr, why don't you give
us some language? Could you send me some language, statutory
language that you think would satisfy the--that would meet the
needs that you expressed in your testimony in terms of a
statutory remedy?
Mr. Kerr. I'd be happy to.
Mr. Delahunt. Thank you.
Mr. Dempsey. Well, let me say, Congressman, that you always
hate to throw out evidence.
Mr. Delahunt. Of course.
Mr. Dempsey. And I think Congressman Lungren has been
concerned about this issue for years and other Members have
been, as well. I think on the fourth amendment side, we've
reached an uneasy balance, but let's call it a balance, with
the good faith exception. But as you were saying, Mr. Chairman,
none of that applies in this strange stored e-mail space here
and we're sort of the captives of some old fashioned thinking
that, ``Oh, it's over there so there's no privacy in it.'' The
average person thinks there is.
What the Congress has tried to do is to create with the
Electronic Communications Privacy Act that structure of privacy
protection. And since 1986, the world has totally moved in the
direction of e-mail, Internet, storage, things outside of your
office, your home, your laptop, and that's what we're trying to
do. We're trying to create similar rules for that environment.
Right now, the way 212 works, none of those apply.
Mr. Lungren. The time of the gentleman has expired.
The gentleman, Mr. Flake, is recognized for 5 minutes.
Mr. Flake. I thank the Chairman, and this won't take 5
minutes, but with regard to what we do this year with regard to
the sunsets, would the Department of Justice be adverse to
having separate debates and votes on separate provisions that
are being sunsetted, or--I mean, that would seem to be a better
way to maybe have the right debate, because as has been pointed
out here, all of us on the Judiciary Committee saw the reason
for the PATRIOT Act and all of us voted for the version that
came out of this. Some of us, including myself, voted for the
version that passed on the floor, mostly because the sunset
provisions were there and we knew that we could come and
revisit it. But if I could get Mr. Moschella's thoughts on
that.
Mr. Moschella. Mr. Flake, as a former Parliamentarian of
this Committee and now an executive branch official, I'm not
going to tell this body, a separate branch of Government,
exactly how it's going to manage its markup. I do want to make
this point, though, that the President has called for the
reauthorization of the PATRIOT Act and we believe that all 10
provisions need to be reauthorized.
Mr. Flake. But there have been--the Attorney General, when
he testified before this Committee and before the Senate,
conceded that there are some amendments that ought to be
entertained, I guess is the way he put it, particularly with
regard to the gag order and----
Mr. Moschella. With regard to section 215, he stated that,
number one, the Congress could write in the relevant standard
which we believe to be implicit in the statute, the ability to
confer with an attorney, and the ability to challenge a 215
order in the FISA court.
Mr. Flake. To Mr. Dempsey's point that he made before, it
would help us--it would seem that the Department would enjoy
more cooperation and have more credibility if there was a
little more give and take here and a little more effort to say,
all right, that may be more of a problem. Let's look at the
ways we can have checks and balances. I see you nodding your
head, Mr. Dempsey. Can you comment on that?
Mr. Dempsey. I don't understand the either/or nature of
this debate: you know, they all sunset or they all have to get
renewed as is. We're talking here about the lack of an
emergency exception in the Electronic Communications Privacy
Act of 1986. That legislation went through months of hearings,
markups, considerations, not under the kind of crisis situation
we faced in October of 2001, and yet Congress forgot stuff.
They left stuff out. They didn't put in an emergency exception.
So, of course, come back and fix it.
Now, in 2001, we didn't know if there was going to be
another attack. We had the anthrax attacks. The Senate was shut
down. We were worried about when the next attack would be and
this legislation went through. Of course, mistakes were made.
Of course, some of the checks and balances were left out. Now
come back, keep the tools, keep the authorities, but put in the
checks and balances.
Mr. Flake. I'm still a newbie here. This is just my third
term. But what I have come to understand with regard to this
relationship is that the Department of Justice, as is their
role, is to fight terrorism and to fight crime and they will
take every tool that is given to them, as they should,
apparently. But it's the Congress's role to make sure that
there are appropriate checks and balances there and that's what
these oversight hearings are all about and I commend this
Committee for having thorough hearings on this matter and thank
the witnesses for good testimony.
Mr. Lungren. Mr. Dempsey, I would just suggest that your
comment about 1986 where we didn't complete a perfect bill, I'm
the only Member here who was here in '86----
Mr. Dempsey. Yes, sir.
Mr. Lungren.--but I will point out I was in the minority at
the time. [Laughter.]
Mr. Scott?
Mr. Scott. Thank you, Mr. Chairman.
If the information is not used in a criminal investigation,
we may not know that it is ever gathered. Mr. Moschella, would
you agree that we need a report to Congress so we can get an
idea of how much this section is actually being used?
Mr. Moschella. Mr. Scott, we would be happy to look at any
reporting requirement. One thing I want to point out, though,
in the context of the intelligence reform bill, Congress
imposed, at my count, 106 new reporting requirements. We
certainly want to make sure that they're meaningful, they're
useful, that they are read, and that the same people who are
putting the information together for these are also the same
people fighting the war on terrorism and crime.
Mr. Scott. Part of the problem is, we don't know how wide a
net we're casting when we go to get the information. You may
get specific information in a kidnap situation in an emergency,
life and limb involved, but that's not--probably not all you're
getting. What portion of the information that you get do you
actually use in prosecutions?
Mr. Moschella. I'm not able to answer that question.
Mr. Scott. Once you get the information, what limitations
are placed on how long it can be retained and who gets to see
it?
Mr. Hulon. I can respond to some of that, sir. The
information that is obtained, I'd like to point out that
primarily the information we're talking about obtaining is
information in regards to the subscriber or the person who has
that account, and what we're looking for, the FBI at that
particular time, is the location of that person to try to
resolve or prevent a crisis from occurring.
The information that is obtained, of course, is put into
the FBI files. It is not disseminated outside to the public.
It's----
Mr. Scott. It's not disseminated to the public, but last
time we checked, this is--is this subject to that information
sharing, where you can give it to the FBI and to local law
enforcement and the Department of Defense and every public
official that works in the neighborhood, some of whom may, in
fact, be your neighbors, and some of this information may not
be useful in a criminal investigation, but may be embarrassing?
Mr. Hulon. Sir, the information would only be used for law
enforcement or intelligence purposes. It would not just be
provided to a public official. It would be within the
intelligence channels as well as----
Mr. Scott. Yes, but when you submit it to--when you give it
to another agency, these are not robots and computers. These
are human beings, some of whom may be your neighbors or my
neighbors or the person whose information--and some of it could
be politically embarrassing. I mean, you don't have to give it
to so many people before somebody, you know, this might be some
juicy stuff.
Mr. Hulon. Sir, the information that we're talking about
here would be the subscriber information to the person that has
that Internet service, and when the information is
disseminated, it's disseminated for law enforcement use only or
for intelligence purposes, and we have requirements as far as
how that information can be used and the people that receive
that information understand those requirements, too. And so,
therefore, that information is still within our channels. It's
still protected. It's still guarded.
Mr. Scott. Mr. Dempsey, during the commentary and a lot of
the discussion and testimony, there was a difference between
non-content information and content information. What's the
difference statutorily and why should it make a difference?
Mr. Dempsey. Well, we're really talking about two emergency
exceptions here, one that relates to the content of e-mail
storage, and, as we know, Google and Hotmail and others are now
offering huge volumes of storage so that you store lots and
lots--years worth of e-mail with the service provider. And then
the second emergency provision relates to the subscriber
identifying information, which we would call the transactional
information.
Sometimes, particularly in the Internet context, it's a
little bit difficult to draw the line there. I think that the
Justice Department's position should be that the ``re'' line on
an e-mail, for example, is content, not transactional. The
``to'' and ``from'' line is transactional information. Some of
the other----
Mr. Scott. But what about my credit card information and
billing address? That could be some important information for
law enforcement to get. I think----
Mr. Dempsey. Those are considered transactional. That's on
the non-content----
Mr. Scott. That would be the best information. You get
somebody communicating back and forth, you don't know where
they are. You get the address, that's real good law enforcement
information. Where is that in content and non-content, and what
difference should it make in terms of what they can get?
Mr. Dempsey. Credit card information falls on the non-
content side.
Mr. Scott. And what difference does it make whether it's
content or non-content?
Mr. Dempsey. Well, in this case, it makes no difference. I
mean, actually, there's some slight wording difference between
the emergency exception for content information and the
emergency exception for non-content information. One says
immediate danger. Ironically, the standard now for non-content
information is a little stricter than the standard for content
information. Again, that's sort of the somewhat, I won't say
sloppy, but that's a byproduct of the way in which these things
are drafted.
Mr. Lungren. The gentleman's time has expired.
We've got a vote on. I know the gentlelady wants to ask a
question to submit to you, if you could then give us the answer
in written form.
I just wanted to make one thing clear. I feel strongly that
we should look at some judicial intervention. That does not
mean I support a suppression statute here. As one who's worked
for 25 years for a good faith exception to the exclusionary
rule and realize that sometimes suppression punishes the victim
rather than the constable who went wrong, I don't support that.
But I think some sort of ability of a magistrate to intervene
and also to make a judgment as to whether notice ought to be
given.
The gentlelady is recognized to ask her question.
Ms. Jackson Lee. Let me just say, I want you to have the
opportunity to enforce our laws. Judicial review for 212 has to
be considered, and I believe it's imperative.
This question is to just ask you to provide for us the
steps that the Department of Justice has taken to ensure the
more than 70 errors and misrepresentations regarding
information sharing, unauthorized dissemination of information
which are described in the Foreign Intelligence Surveillance
Court's 2002 opinion order so that we know it will not be
repeated.
There are too many exceptions to 212. I want you to have
the skills. I appreciate--and the tools. But really, I think
there needs to be a balance. I thank you for your testimony.
Mr. Lungren. I thank the gentlelady.
I'd like to thank the witnesses for their testimony. The
Subcommittee very much appreciates your contribution.
In order to ensure a full record and adequate consideration
for the important issue, the record will be left open for
additional submissions for 7 days. Also, any written questions
that a Member wants to submit should be submitted within the
same 7-day period.
This concludes the oversight hearing on ``The
Implementation of the USA PATRIOT Act: Section 212--Emergency
Disclosure of Electronic Communications to Protect Life and
Limb.'' Thank you for your cooperation. The Subcommittee stands
adjourned.
[Whereupon, at 11:50 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman. And I want to again express my
appreciation to you for devoting the time and attention you have to the
issue of sunsetted provisions under the USA PATRIOT Act by holding the
series of hearings you have held on the provisions, including this
hearing on Section 212, which involves emergency disclosures under the
Act.
What the hearings have revealed to me is the extent to which we
have authorized unchecked and indiscriminate secret access by the
government to private, confidential, citizen communications and
information. With section 212 and other provisions we have effectively
changed provisions designed to protect private information from
disclosure without due process, to provisions designed to allow or
require indiscriminately disclosure of information to the government.
And such disclosures can be made with virtually no detached oversight
or any other checks and balances such as requiring notice before or
after the fact, requiring reporting to either a court, the Congress or
the public, or requiring sanctions or remedies for wrongful acts or
abuses.
Moreover, with the liberal information sharing provisions we have
authorized, this secretly acquired private, confidential information
can be spread all over town without the person to whom the information
pertains ever knowing anything about it. Further still, there are
absolutely no restrictions on how long, or by whom, the information can
be maintained.
I expect that we will again here from the Department of Justice and
others how important it is for the government to have secret, virtually
unfettered access to our private, confidential information in order to
protect us from terrorism or eminent threats to our health safety.
However, we are not likely to hear how many times the authorities have
been used where no terrorism or eminent threat was involved or how many
times no criminal proceedings or other actions ensued to show the
intrusions were warranted. We are left to simply trust government
officials to always do the right thing at the right time in the right
way, with complete impunity, and without the bother of a court, the
Congress, or the public, looking over their shoulder while they are
doing it.
Mr. Chairman, we should use the information we have gleaned on the
extraordinary secret powers we have authorized, to put in ordinary
checks and balances such as notice, court oversight, reporting
requirements and sanctions and remedies. To fail to do so would turn on
its head not only the Electronic Communications Privacy Act (ECPA), and
intent of the Forth Amendment to the Constitution, but the healthy
mistrust of government the Framers of our system intended, as well.
So, Mr. Chairman, I look forward to the testimony of our witnesses
on how these extraordinary powers are being used and how we can best
provide for the necessary checks and balances our system calls for, and
to working with you to implement them. Thank you.
__________
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan
Today we're here to discuss one of the many criminal provisions in
the PATRIOT Act that has nothing to do with terrorism. As these
hearings have highlighted, some in our government used the tragedy of
9/11 and the fear of terrorists in the immediate aftermath to ram
through new powers to investigate every day crimes.
First, I am concerned that this provision, sold to this Congress as
a way to protect our critical infrastructure from terrorists, has been
a boon to cops seeking information on every day crimes. Truly,
sidestepping the court system completely can only be done in the
gravest of circumstances--and this section of the PATRIOT Act is not
limited even to cases where danger is immediate. It goes to far and in
too many cases, especially in cases that have absolutely nothing to do
with terrorism.
Second, there are no safeguards to ensure that those who scare
internet and phone companies into turning over their customer's
information are doing so only when spending that extra hour to get a
warrant is truly impossible. There are not even safeguards after the
fact, and plainly, there is no justification for avoiding judicial
review or notice to the target after the so called emergency is over.
Indeed, we afford that courtesy to suspected terrorists under the
Foreign Intelligence Surveillance Act after an emergency order is not
extended by the FISA court. I would hope that we would extend the same
rights to American citizens suspected of far less serious crimes.
Third, the Justice Department has yet to come forward to explain
how this section has helped prevent terror attacks or saved a single
life or limb from terrorists. We will hear anecdotes today about
everyday kidnappings and computer hackers--but anecdotes are not
oversight. I hope to hear whether Section 212 has truly been used to
combat terrorism, or merely rode into law on terrorism's coattails.
Finally, hearing after hearing, we are told that these changes to
Title 18, our criminal code, are necessary to prosecute terrorists.
Yet, the list of actual convictions is horribly small. We've rewritten
our criminal laws and compromised the 4 th Amendment all for the sake
of putting terrorists behind bars--because that is the sole purpose of
our criminal code--and it has been a failure. As we go forward and
discuss all the criminal provisions in the PATRIOT Act, we must decide
whether a handful of guilty pleas are worth compromising the rights of
the entire citizenry.
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