http://www.asne.org/index.cfm?id=4348
ASNE memo on the Patriot Act II
Published: February 25, 2003
Last Updated: February 25, 2003
TO: ASNE Officers; Freedom of Information Chair; Executive Director
FROM: Richard M. Schmidt, Jr. and Kevin M. Goldberg
RE: The Effect of Patriot Act II on Newspapers
DATE: February 25, 2003
Much ado has been made about the "Domestic Security Enhancement Act of 2003," also known as "Patriot Act II," since the 86 page text of this proposed bill was leaked to the Center for Public Integrity on February 7, 2003; after reviewing the onerous proposals contained therein, we can affirmatively say that this ado is certainly not about nothing. However, with a barrage of criticism being levied on the Department of Justice -- the drafters of this proposal -- from public interest groups of all shapes and sizes, as well as bipartisan criticism from both Houses of Congress from the House and Senate, one must certainly wonder whether the proposed legislation actually will make it to introduction and, if it does, whether the dropped bill will resemble the restrictive tome we have before us today.
Even as they acknowledge the uncertain future of this proposal, groups are coming together to crystallize plans in the event of formal introduction of this bill. On Feb. 14 Kevin M. Goldberg represented ASNE at a meeting convened by the American Civil Liberties Union. In attendance were organizations concerned by the havoc that Patriot Act II might wreck on civil liberties. It should be noted that this meeting will not lead to the creation of a firm coalition, organization, or agreement to work in tandem among the attending groups; it has merely resulted in an ad hoc working group devoted to discussing possible attacks on Patriot Act II. The following is an inclusive list of the groups that, in addition to ASNE and the ACLU, were interested enough in this issue to attend the meeting: American Bar Association, American Constitution Society, American Immigration Lawyers Association, American Library Association, Association of American Physicians and Surgeons, Association of Research Libraries, Cato Institute, Center for Democracy and Technology, Center for National Security Studies, Citizen's Commission on Civil Rights, Common Cause, Consumer Alert National Consumer Coalition, Eagle Forum, Electronic Privacy Information Center, Human Rights Watch, Libertarian Party, National Association of Criminal Defense Lawyers, National Immigration Forum, Islamic Institute, Mennonite Central Committee, National Council of Churches, National Immigration Law Center, Natural Resources Defense Council, OMB Watch, People for the American Way, Project on Government Oversight, Reporters Committee for Freedom of the Press, Sikh Media Watch Task Force, Unitarian Universalist Association, United Church of Christ, and World Organization Against Torture.
Patriot Act II continues the disturbing trend started by the Fall 2001 USA Patriot Act of Congressional erosion of civil liberties ranging from immigrants’ rights, to the right to challenge secret evidence at trial, to the right to be free of intrusive wiretapping without the existence of a court-issued search warrant. We will not begin to detail the entire Patriot Act II; instead this memorandum will focus on the proposed legislation's effect on the First Amendment, access to government information, and newspapers generally.[1] Patriot Act II's impact in this area can be divided into three general categories: (1) Increased surveillance authority that might chill speech, especially political dissent; (2) Increased restrictions on access to government information, either generally or through the Freedom of Information Act; and (3) Increased criminal provisions that might affect the First Amendment protections of the right to free association.
The Chilling of Dissent Through Increased Government Surveillance Authority.
Some of the most infamous provisions in Patriot Act II are those which would relax the procedural safeguards protecting citizens from widespread government surveillance, such as warrantless wiretaps on telephones, fax machines and computers. Because these provisions mainly raise constitutional issues deriving from the Fourth Amendment's protection from unreasonable search and seizure, not the First Amendment's protections of freedom of speech and of the press, their discussion is not necessarily ripe for this summary. However, some provisions will impact citizens' right to express themselves in the political arena, as well the ability of newspapers to remain free from government interference.
Sections 101 and 102
As drafted, Patriot Act II would amend existing legislation that requires the government to obtain approval from the Foreign Intelligence Surveillance Court before wiretapping electronic media in the absence of evidence of crime. Prior to September 11, 2001, federal law allowed the government to obtain a search warrant from this court -- which has very low standards for issuing such warrants and little oversight of its decisions -- if the government’s primary purpose in obtaining the warrant was the gathering of foreign intelligence related to terrorism, not criminal prosecution or some other purpose. The first USA Patriot Act, passed in the Fall of 2001 abolished this "primary purpose test", allowing increased government surveillance on criminal matters only tangentially related to terrorism.
Section 101 of Patriot Act II continues to relax these standards, allowing approval for such surveillance with only the merest evidence of a crime -- even if that crime has no relationship to terrorist organizations or activities. This section allows the government to obtain a wiretap or search warrant without any evidence that the party being watched was acting on behalf of a foreign government or organization.
Section 102 eradicates a current distinction between US citizens and permanent residents and non-immigrants or illegal immigrants in the eyes of the Foreign Intelligence Surveillance Court. Currently, surveillance of the former requires some evidence of a crime being committed on behalf of a foreign power, while surveillance of the later requires only that information be gathered on behalf of a foreign power. Now, the lower standard would be applied to everyone.
Taken on its face, this may not appear to have any impact on the media. Historical context clarifies the potential impact. Congress passed the protections that were eroded in the USA Patriot Act and which may be further eroded in Patriot Act II after it was discovered that the government, mainly during the Nixon administration, had been engaging in wiretapping and other intrusive spying on political activists, candidates, dissent groups and journalists. The government justified such spying as necessary to "national security". If Patriot Act II passes, the government would be able to claim that journalists were passing information on to a foreign person or organization to justify an electronic wiretap of a newsroom. One could envision an attempt by the government to engage in spying on a newsroom in the United States when the "foreign power" to whom the information is being supplied is the foreign bureau of a domestic news organization or a foreign newspaper which has some form of information or joint publication arrangement with one of its American brethren.[2]
Sections 103 and 104
These provisions take away the pre-authorization requirement altogether for short periods at the whim of the government. Section 103 would allow the attorney general to authorize intelligence wiretaps without permission from any court -- without even the low standards for getting such authorization from the Foreign Intelligence Surveillance Court -- for fifteen days after (1) an attack on the United States or (2) a congressional authorization of military force; currently a declaration of war by Congress is required for this fifteen day period to be applicable.
Section 104 would allow for special surveillance authority on spoken communications, again without court order, for up to one year if the communications occur on property under the "open and exclusive control of a foreign power". This would certainly affect foreign news operations with offices in the United States.
Sections 120 and 121
The US Code contains a list of "predicate offenses", the suspected commission of which allows the government to engage in intrusive surveillance of a person or organization. One such offense is any terrorism crime as defined by federal law. Section 120 broadens this list of predicate offenses to include terrorism-related offenses that meet the following three conditions: (1) they violate federal or state law; (2) are committed with the intent of affecting government policy; and (3) are potentially dangerous. Such surveillance does not require that the party being watched actually commit such a crime; it is enough that the party has participated in the preparation leading up to the actual crime.
This broad definition contains obvious ramifications for any organization or person who is engaged in political dissent. It basically means that the government can spy on any person who participates in active crowd protest, since such protests often result in violence, rioting and, thus, danger.[3] It would also allow the government to spy on those who simply gather and disseminate information, such as newspapers.
Section 124
This section has implications for any newsrooms providing reporters with multifunctional communications devices. It allows the government to review and seize any information, without separate probable cause or a search warrant, on any device simply by showing that other communications made through the device, even if in a different medium, would be relevant to criminal activity. Thus, if a news entity issues "Blackberry" devices or other means of remote communication to its reporters, and a reporter were to receive an alphanumeric page, telephone call or text message on his or her Blackberry device that the government believed contained information related to a crime (such as a page or message from a suspected terrorist that the reporter was going to meet for an interview), the government, by virtue of the fact that the Blackberry also was used for E-mail messaging, could access the reporter's entire E-mail archive without separate evidence that any E-mail contained similar evidence of a crime. All the government would have to do is obtain a search warrant to obtain information from the paging, telephone, or text messaging portion of the device.
Sections 128 and 129
These sections create a new class of "Administrative Subpoena" which, unlike judicial subpoenas, can be used to compel production of documents from businesses for use in administrative proceedings without prior court approval or court order. These subpoenas could only be challenged after their issuance and service upon the business, through a "Motion to Quash" filed in court at the expense of the party challenging the subpoena.
Freedom of Information and Access Implications.
There are a number of provisions which would either directly amend the Freedom of Information Act (FOIA) or would severely curtail access to government information. Their utility in fighting terrorism, however, is not readily apparent.
Section 201
This section codifies the "Creppy Memo," a directive issued by Chief Immigration Judge Michael Creppy. The Creppy Memo requires that all proceedings in so-called "special interest" immigration cases be closed to the press and public, including family members and friends. The record of the proceeding is not to be disclosed to anyone except a deportee's attorney or representative. The court cannot even confirm or deny whether such a case is on the docket or scheduled for a hearing.
The policy has been challenged in two United States Courts of Appeals. The Sixth Circuit held that there is a constitutional right of public access to these hearings; the Third Circuit reached the opposite result. While this section of Patriot Act II does not prevent the Supreme Court for resolving this "circuit split," it does codify the executive branch policy, giving it at least a little more credibility in the eyes of a tribunal.
Section 202
Access to important environmental information that could save lives would be restricted by Section 202. Section 112(r) of the Clean Air Act requires corporations that use potentially dangerous chemicals to file risk management plans with the Environmental Protection Agency. These plans contain sections called "worst case scenarios" which describe the possible impact that a catastrophic release of chemicals would have on nearby communities. Many community organizations rely on this information to ensure compliance with environmental standards; more importantly, residents of a community with a chemical plant are able to know the full extent of the danger to which they are subjected by their large neighbor.[4]
Patriot Act II would not eliminate access to risk management plans. Its impact would come in the form of substantive and procedural limits.[5] The proposed legislation requires that information relating to the identity or location of any facility be redacted from the risk management plan. Access to the remaining information would be available only to those requestors who live or work in the area and would be affected by a worst case scenario. Access to this worst case scenario information would be on a "read only basis"; the requestor would not be permitted to make copies of, or even take notes on, the information.
Section 206
The Department of Justice's attempt to impose this prior restraint is particularly galling and constitutionally suspect. This section would prohibit any grand jury witness in a terrorism inquiry from discussing his or her testimony with the media or the general public. The provision denies the public information it has a constitutional right or receive under the First Amendment, as currently only attorneys and grand jurors themselves are gagged under the Federal Rules of Criminal Procedure.
Section 313
Last year's Homeland Security Act, as passed, contained a provision allowing any company who shares information related to the critical infrastructure with the government to do so without fear that the information will be used as evidence in a civil lawsuit. Many believe that this will allow companies to hide corporate malfeasance from public view and avoid civil liability by claiming such information was related to "the critical infrastructure." Patriot Act II expands this protection.
Section 313 says that no private company "shall be subject to civil liability in any court for the voluntary provision or disclosure of information to a federal law enforcement agency, based upon a reasonable belief that the information may assist in the investigation or prevention of terrorist activities." Rather than applying a simple evidentiary exclusion, this Section absolves a private company of liability altogether if it provides the government with information that may assist in preventing terrorism. Any corporation could sweep its errors or indiscretions under the rug very easily because, in order to obtain civil relief, an injured party would (1) have to find out the information exists, and (2) prove that it was not related to terrorist activity.
This section also would prevent the corporation from being sued if it provided erroneous information, such as an erroneous tip that a person or organization was engaged in terrorist activity. Thus, corporations could slander individuals or competitors by making unfounded allegations that those persons or corporations have information related to a terrorist investigation. Even if the corporation were maliciously lying, there would be no recourse through defamation statutes. While ASNE is often on the side of those seeking to prevent defamation suits to the greatest extent possible, this proposed law makes a mockery of the First Amendment by removing entire categories of discussion from the public arena and preventing individuals from openly defending themselves in the court of public opinion.
Freedom of Association Implications.
The bill broadens certain definitions of terrorism in a manner that would have an impact on the ability of persons to associate and engage in dissent. These sections appear to violate the First Amendment.
Section 312
As a result of police department spying on innocent members of the public involved with political organizations (ranging from the American Friends Service Committee to Amnesty International), a number of federal lawsuits were filed against local police departments in the 1970s alleging civil rights violations. Federal courts entered consent decrees that prohibited spying by these local police and governed the relief granted to the groups whose rights were being violated. Patriot Act II would threaten the existence of these consent decrees and the future of any similar relief from government violations of this nature.
Section 312 allows any party to an existing consent decree, or an intervener, to immediately invalidate a consent decree issued before September 11, 2001 if the party can show that the consent decree is not narrowly drawn to correct a violation of a federal right and is not the least intrusive means necessary to correct violation of that right. In other words, an existing consent decree may be overturned if the court finds that it favors individual rights over the fight against terrorism. The court must determine the effect on national security, public safety and the operation of the criminal justice system. The same standards apply to any prospective consent decrees which parties seek to create to cure future violations of civil rights.
This could chill dissent by making persons fear joining organizations that are involved in any form of political protest, no matter how innocuous. Such spying also diverts resources from the targets that may actually require some form of monitoring.
Sections 402, 411, and 501
Patriot Act II criminalizes individual association with certain groups even if there is no evidence of specific intent to commit a terrorist act. It states that any person who provides material support for "terrorism" can face criminal conviction even if that person did not actually support terrorist organizations -- the person must simply engage in activity meeting the 3 part test found in Section 120, discussed above.[6] Currently, prosecution may only occur if the material support for the organization in question is provided with the intent to further a terrorist crime.
The change in law has obvious implications. Whereas currently a person can only be convicted for providing material support for terrorism if he or she knows the organization is a terrorist organization, Patriot Act II would allow conviction if a person provided any support, even if only in the form of financial donations or research, to an organization that engaged in political protest of a "dangerous nature". The real problem is that the organization does not have to be designated as a terrorist organization by the government, so ignorance of an organization's true activities is not a defense. This will certainly result in fewer citizens joining politically active organizations; some potential exists that research performed by a newspaper reporter could result in the conviction of that reporter.
There are severe penalties contemplated for those with such terrorist associations. According to Section 411, these terrorism crimes also make one eligible for the death penalty if someone dies as a result of the "dangerous acts". Thus, an innocent person could be subjected to the death penalty without any specific intent on his or her part to commit any bodily harm, let alone death. Section 501 allows even a native born citizen to be stripped of his or her citizenship if he or she provides the above-defined "material support" for a terrorist organization; this would be true even if the person only supported the lawful activities of the organization.
Conclusion
At this time, there is no indication when, or even if, Patriot Act II will be introduced in Congress. Nor can we guarantee that the draft summarized here is the version in which it may be introduced. However, as the threat to civil liberties posed by this legislation, in this form, is so severe, we did not think this should be ignored. We will continue tracking the progress of the bill and will report back to ASNE membership as developments occur. In the meantime, if members have any questions on Patriot Act II in its current form, they should feel free to contact us.
1.) Part of the reason that this memorandum will only summarize these issues is that other sources provide a comprehensive review of the entire proposal. The ACLU has an excellent section-by-section summary posted on its web site; the document can be found at:
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11835&c=206.
The Center for Public Integrity also has materials related to Patriot Act II on its web site, at:
http://www.publicintegrity.org/dtaweb/report.asp?ReportID=502&L1=10&L2=10&L3=0&L4=0&L5=0
2.) One non-media example given by the ACLU is that the government would be able to engage in such surveillance of a US citizen who prepares a report on human rights for London-based Amnesty International, which would qualify as a "foreign political organization", even if the activist himself or herself were not engaged in any violation of law.
3.) Some have surmised that such groups as People for the Ethical Treatment of Animals, Greenpeace, Operation Rescue, and Human Rights Watch would be subject to these new provisions simply because they often engage in protest involving active and physical conflicts.
4.) An example is the use of a risk management plan by local citizens living near the Blue Plains Treatment Plant in the Washington, DC area. These plans revealed the existence of a 90-ton rail car containing chlorine. The public demanded that the rail car be moved after the worst case scenario information in that plan demonstrated that an accident could cause the release of a chlorine plume that would potentially cover the White House and Capitol.
5.) These proposed changes add to restrictions implemented by the Chemical Safety Information and Site Security Act of 1999, which prohibited certain forms of electronic access to risk management plans.
6.) This is (1) an act which violates federal or state law; (2) that is committed with the intent of affecting government policy; and (3) is potentially dangerous.
[1] Part of the reason that this memorandum will only summarize these issues is that other sources exist which provide a comprehensive review of the entire proposal. The ACLU has an excellent section-by-section summary posted on its web site; the document can be found at:
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11835&c=206.
The Center for Public Integrity also has materials related to Patriot Act II on its web site, at:
http://www.publicintegrity.org/dtaweb/report.asp?ReportID=502&L1=10&L2=10&L3=0&L4=0&L5=0
[2] One non-media example given by the ACLU is that the government would be able to engage in such surveillance of a US citizen who prepares a report on human rights for London-based Amnesty International, which would qualify as a "foreign political organization", even if the activist himself or herself were not engaged in any violation of law.
[3] Some have surmised that such groups as People for the Ethical Treatment of Animals, Greenpeace, Operation Rescue, and Human Rights Watch would be subject to these new provisions simply because they often engage in protest involving active and physical conflicts.
[4] An example is the use of a risk management plan by local citizens living near the Blue Plains Treatment Plant in the Washington, DC area. These plans revealed the existence of a 90 ton rail car containing chlorine. The public demanded that the rail car be moved after the worst case scenario information in that plan demonstrated that an accident could cause the release of a chlorine plume that would potentially cover the White House and Capitol.
[5] These proposed changes add to restrictions implemented by the Chemical Safety Information and Site Security Act of 1999, which prohibited certain forms of electronic access to risk management plans.
[6] This is (1) an act which violates federal or state law; (2) that is committed with the intent of affecting government policy; and (3) is potentially dangerous.
