by Friends Committee on National Legislation –
A bipartisan group of senators from across the political spectrum have introduced the the Security and Freedom Ensured Act (SAFE) of 2003, revising four controversial provisions of the USA PATRIOT Act.
The SAFE Act addresses “sneak and peek” searches, wiretaps that do not name a specific person or place, secret surveillance of business records, and use of “administrative subpoenas” at libraries), in addition to inserting several additional “sunset” clauses into provisions of the USA PATRIOT Act.
The SAFE Act would help restore protection of US civil liberties but would not interfere with the constitutionally permissible tools needed by law enforcement professionals.
The SAFE Act was introduced by Sen. Craig (R-ID), with original co-sponsorship of Sens. Durbin (D-IL), Crapo (R-ID), Feingold (D-WI), Sununu (R-NH), Wyden (D-OR), and Bingaman (D-MN). In addition to its bi-partisan composition, the sponsoring group includes “liberals,” “moderates,” and “conservatives,” and bridges geographic areas of the nation.
The SAFE Act is supported by advocacy groups as diverse as the American Civil Liberties Union and the American Conservative Union.
The Security and Freedom Ensured Act of 2003 (“SAFE” Act) revises four USA PATRIOT Act provisions:
1. “Sneak and peek” Warrants : Under the USA PATRIOT Act, law enforcement officers can obtain a warrant that will permit them to secretly enter your home or business for search and seizure procedures and delay notification of the search for a “reasonable period” (with no definition of the term “reasonable”). These delayed notice warrants are also called “sneak and peek” warrants. (For more information about “sneak and peek” warrants, see http://www.fcnl.org/issues/item.php?item_id=521&issue_id=68.) The SAFE Act would limit the circumstances in which a search could be conducted with delayed notification and would limit the delay in notification to seven days, with seven-day renewals of the delay available under court supervision. The SAFE Act also requires the Department of Justice (DOJ) to report regularly to Congress and to the public summarizing the number of times the DOJ has used delayed notification warrants.
2. “John Doe” Roving Wiretaps : Wiretaps that don’t name a specific person or place are called “John Doe” roving wiretaps. Under the USA PATRIOT Act, law enforcement officers can obtain wiretaps which do not specify either the name of the suspect or the location where the wiretap is to be placed. This authority constitutes a virtual blank check for wiretap surveillance permission. The SAFE Act cuts back on this authority, providing that the FBI must either identify the suspect or submit a description of the suspect together with the nature and location of the facility or place at which the surveillance will be directed. The SAFE Act also provides that the surveillance may be conducted only when the suspect is present at the place to be wiretapped.
3. Secret Surveillance of Business Records (including those of libraries and bookstores): Under the USA PATRIOT Act, in order to get a secret Foreign Intelligence Surveillance Act (FISA) court warrant to obtain surveillance of business records, the FBI does not have to show probable cause of criminal activity. The FBI must merely certify that the information sought is related to an ongoing investigation. (For more information about USA PATRIOT Act provisions affecting surveillance of business records, see http://www.fcnl.org/issues/item.php?item_id=234&issue_id=68.) Under the SAFE Act, to get a FISA court warrant for business record surveillance, the FBI would have to be able to articulate specific facts giving reason to believe that the suspect is a foreign power or an agent of a foreign power, a more stringent standard than that required by the USA PATRIOT Act. Of course, criminal investigation warrants for business records also would be available, under the pre-USA PATRIOT Act procedures. The SAFE Act also requires the DOJ to report regularly to Congress on its use of this authority.
4. “Administrative Subpoenas” : A very narrow range of subpoenas do not require judicial permission, but rather can be issued by an administrative agency with no court oversight. These subpoenas are called “administrative subpoenas” or “National Security Letters.” Under the USA PATRIOT Act, law enforcement officials are permitted to issue National Security Letters to “wire and electronic communication service providers,” generally interpreted as telephone companies and the like. The DOJ interpretation includes libraries in this category, based only on the fact that libraries offer public Internet terminals for patron use. The SAFE Act explicitly excludes libraries from the definition of wire and electronic communication service providers (and safeguards this protection by including a definition of the term “library”).
5. Sunset Clauses: A sunset clause is a portion of a statute that provides that the law or part of a law described in the sunset clause will expire automatically and cease to have the force and effect of law on a certain date unless Congress specifically renews it. Having a sunset clause attached to a controversial provision ensures congressional examination about whether a provision is effective and about the expected or unexpected burdens that the provision has imposed. The USA PATRIOT Act includes a sunset clause for a number of its provisions, but does not include such sunsets for other, controversial provisions. The SAFE Act sets forth sunset clauses for the provisions authorizing “sneak and peek” searches, surveillance of email and internet use, and authority for a judge to approve nationwide search warrants.
For further information about the USA PATRIOT Act and other aspects of the post-September 11 erosion of civil liberties in the United States, click here:http://www.fcnl.org/issues/issue.php?issue_id=67.
ACTION : Find out whether your senator has become a co-sponsor of S 1709, the Security and Freedom Ensured Act of 2003 (“SAFE” Act) by checking our Legislative Action Center at http://capwiz.com/fconl/issues/bills/?bill=3671001&alertid=3671006
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