Perspective:  The next chapter in the Patriot Act

By Declan McCullagh

Published: April 4, 2005, 4:00 AM PDT

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If you thought the congressional debate over Terri Schiavo was intense, wait until the one over the Patriot Act begins this week.

Both the Senate and the House of Representatives are kicking off what promises to be a tumultuous series of hearings about whether to renew key sections of the controversial 2001 law. Roughly half of the law is set to expire on Dec. 31.

It's too early to know whether the hearings will be a sober analysis of surveillance and privacy or a Republican ploy to rubber-stamp a renewal. Early signs are positive; presiding over the Senate hearings will be Arlen Specter, R-Penn., who supported a partial repeal of the Patriot Act last year. His House counterpart, F. James Sensesnbrenner, R-Wis., has made similar comments in the past.

The Patriot Act, of course, has been one of the most polarizing laws of the last few decades. The Bush administration drafted large portions of it, and the president himself sings its praises every chance he gets.

But worries about the law's effect on civil liberties led hundreds of communities to vote to condemn it. Even Democratic presidential candidate John Kerry said last year--in a somewhat wishy-washy way--that while he was correct to vote for the Patriot Act, he might be open to some fixes.

The law is long and convoluted. But five sections that are set to expire will have the most impact on the technology and telecommunications industries:

• Sec. 202: Computer hacking is a "predicate offense" permitting police to seek certain types of wiretaps.

• Sec. 203: Federal police can share information gleaned from a wiretap or Carnivore-like surveillance device with spy agencies. Previously, there was no explicit authorization for such data sharing.

• Sec. 212: Internet providers and other communications services can divulge information to police more readily. Specifically, customer records and other data may be legally handed over to police in an emergency.

• Sec. 215: Secret court orders can be used to obtain records or "tangible items" from any person or business if the FBI claims a link to terrorism. The unlucky recipient of the secret order is gagged; disclosing its existence is punishable by a prison term. Librarians are especially concerned about this (though the FBI claims it hasn't invoked Sec. 215 so far).

• Sec. 217: Computer service providers may eavesdrop on electronic trespassers legally. Police can be authorized to "listen in" on what's happening on the provider's network.

Rushed into law after 9/11
Much of the political debate over the Patriot Act in the last few years has, unfortunately, shed more heat than light. (I say this as someone who has been critical of it.)

Fortunately, a splendid new Web site called PatriotDebates.com offers a central location to find the best arguments on each side of the Patriot Act. It's a project of the American Bar Association's Standing Committee on Law and National Security and features section-by-section critiques pitting Bush administration types against civil libertarians.

"There's a good back-and-forth debate," says Orin Kerr, a former Justice Department prosecutor and one of the Web site's contributors.

Kerr, now a law professor at George Washington University, has defended the Patriot Act as representing modest changes to earlier law. "There's a broad consensus that the government needs these powers," Kerr says. "It's just a question of the standards."

Tim Edgar, legislative counsel for the American Civil Liberties Union and another PatriotDebates.com contributor, isn't as sanguine. Edgar believes that small-government conservatives will unite with Democrats to scale back the law.

"I feel better about where we are now than I did last year, even though we have fewer Democrats in both chambers," he says. "That's because it's not an election year. There's been a lot of unease about the Patriot Act among a lot of Republicans. But what made it difficult is by criticizing it last year, they would make it look like they're helping the Kerry campaign."

A number of conservative groups, including Americans for Tax Reform, the American Conservative Union, the Free Congress Foundation, the Citizens' Committee for the Right to Keep and Bear Arms and the Second Amendment Foundation are already calling on Congress to take a hard look at some of the most sweeping portions of the law.

That may or may not work, but it's certainly a better situation than what happened the last time around. On Sept. 13, 2001, while the fires were still ablaze at the World Trade Center, the Senate hastily approved with a near-zero debate what would eventually become the Patriot Act.

When the final vote was held the following month, members of Congress were required to vote on the bill without time to read it. The measure "has been debated in the most undemocratic way possible, and it is not worthy of this institution," Rep. Barney Frank, D-Mass., said at the time. Rep. Ron Paul, R-Texas, added later: "Almost all significant legislation since 9/11 has been rushed through in a tone of urgency with reference to the tragedy."

Sen. Specter has scheduled three hearings, and his House counterpart is talking about having eight of them. It's premature to be optimistic, but perhaps the result will be different this time around.

Biography

Declan McCullagh is CNET News.com's Washington, D.C., correspondent. He chronicles the busy intersection between technology and politics. Before that, he worked for several years as Washington bureau chief for Wired News. He has also worked as a reporter for The Netly News, Time magazine and HotWired.

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