I just went to my local grocery store to pick up a few things for home and there were 2 women outside the store canvassing for signatures on a petition. As I walked out of the store, one of them asked me if I would sign their petition to "restore voting rights to the people of Michigan." I said I wasn't aware that our voting rights in Michigan had been taken away. She said that the state government had passed a law to take away our right to vote on the issue of gambling casinos, which meant the state could put a casino anywhere they wanted and we wouldn't be able to stop it.
I said, "I have no problem with that. I'm strongly pro-gambling." She replied, "But if you don't sign this petition, you won't be able to vote on it." I told her that not only am I opposed to their petition, I think it's very dishonest to present it as a petition for "voting rights". In my view, you don't have the "right" to vote against the establishment of a casino, any more than you should be able to vote not to allow a sporting goods store to open, or a gas station. They are businesses, they are privately owned, and that should not be put to a vote. So there is no "voting right" that has been taken away.
Another perfect example of political dishonesty is the Bush campaign commercial I saw yesterday. It criticized John Kerry for wanting to repeal the Patriot Act, saying that while we use wiretaps and subpeonas against drug dealers all the time, Kerry would take those tools away from law enforcement for use against terrorists. That is a complete and utter lie, plain and simple. The Patriot Act did not establish the use of wiretaps or subpeonas against suspected terrorists, the FBI could use exactly the same tools against suspected terrorists that they could use against suspected drug dealers before the Patriot Act. What that act did was eliminate judicial review over such tools of law enforcement as long as they said it was for a terrorism investigation. If the Patriot Act is repealed, wiretaps and subpeonas will remain in use just as they are against drug dealers, and they will have to meet the same standard of judicial review that are used against drug dealers, namely the probable cause standard.
What disturbs me about these examples is not that political campaigns are often dishonest, but that people are uninformed enough that they work.
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The Patriot Act did not eliminate judicial review of wiretaps or subpoenas. Every wiretap in every case is approved (or rejected) by a judge.
There is a lot of misleading information out there about the Patriot Act, that canard among it.
The Patriot Act did not eliminate judicial review of wiretaps or subpoenas. Every wiretap in every case is approved (or rejected) by a judge. There is a lot of misleading information out there about the Patriot Act, that canard among it.
This is false. Under the Patriot Act guidelines, the judicial oversight is eliminated. Section 215 says that if the Director of the FBI or his designee certifies to the FISA court that the warrant is to be used in a terrorism investigation, there is no opportunity for the judge to turn down the request. Under subsection (c)(1) of the statute that it amends, it says:
And the requirements of that section are only that the FBI certifies with a letter that it is part of a terrorism investigation. There is no standard for determining when a warrant is to be granted or denied other than that. The FBI does not have to show probable cause, as they must do to get a warrant in any other type of investigation. The probable cause standard has been eliminated for any investigation that the FBI says is terrorism-related and the judge is compelled to sign the warrant as long as they so certify.
Let's clarify: your post said the Patriot Act eliminated judicial review of wiretaps and subpoenas, which it did not. It did provide a new process for business records orders, not wiretaps.
The legal standard for wiretaps was, and is, probable cause. A wiretap application is submitted to the FISA court. The court may approve or decline the request. Wiretaps without court order are felonies.
Patriot Act Section 215 refers to business records orders. Not wiretaps. The standard there did change and, though I think it a good change, some people are unhappy about it. You among them, clearly.
Subpoenas, a different technique from the first two discussed above, are not essentially affected by the Patriot Act.
There's a lot of misleading information out there. The terms and techniques can be complicated. I hope my clarifications helped.
The legal standard for wiretaps was, and is, probable cause. A wiretap application is submitted to the FISA court. The court may approve or decline the request. Wiretaps without court order are felonies.
Hmmm. Thanks for the correction, I thought section 215 set the review standard for all requests to the FISA court.
A further clarification:
The Patriot Act did expand an exception to the 4th Amendment's probable cause requirement for wiretaps created by the Foreign Intelligence Surveillance Act (1978). The exception applied only to foreign intelligence gathering under FISA -- and that only -- but now under the Patriot Act applies to wiretaps and searches directed at obtaining evidence for domestic criminal investigations, if the goverment cites an additional and "significant" purpose related to gathering foreign intelligence.
The Patriot Act also expands the use of "trap and trace" (pen register) wiretaps, which don't require a showing of probable cause, in Section 214. Now, the court issues the warrant first, and the law enforcement agency determines the "places to be searched" after the warrant issues. Once such a warrant issues, furthermore, it applies nationally, instead of being limited to an area within the court's jurisdiction.
These aren't the only new exceptions, but I can go on about this ad nauseum. The potential problems with the ones I've noted should be immediately apparent.
E
What disturbs me about these examples is not that political campaigns are often dishonest, but that people are uninformed enough that they work.
I believe you hit the nail on the head with that statement.
We could go on about the Patriot Act for a long time, and I won't belabor this more, but for two quick additional clarifications that I think are important.
Trap and trace devices are not the same things as pen registers and neither of the two is a wiretap. (T&T devices are like caller ID: they pick up incoming call information. Pen registers pick up dialed outgoing digits.) "Wiretap" is common parlance for an interception of a wire communication, meaning the content of the communication, not the addressing information.
The Patriot Act's biggest weakness, as I see it, is its name. It's a good piece of legislation that really does help fight terrorism. The cost to civil liberties is nearly unmeasurable. It's a balance well struck, I think.
T&T and pen registers fall into the same category legally, and they're both considered to be wiretaps in the caselaw.
Not that any of that is relevant to this discussion.
Indeed, we're killing Ed's comments. Let's stop.
Could you email me an example of a pen/trap being a wiretap in case law? I ask out of genuine interest. It's not -as a practical matter- how they are understood by the law enforcement types I work with. There, the wiretap is for content; the pen/TT is not.
Indeed, we're killing Ed's comments. Let's stop.
Oh, not at all, please continue. You guys obviously know more about this than I do, so it's an opportunity to learn.
It appears that my last post was misleading. Please allow me to clarify:
The rules for pen register and "trap and trace" devices are often described as exceptions to the probable cause requirement for wiretaps, much as the "plain view" doctrine is considered to be an exception to the warrant requirement of the Fourth Amendment.
(You can get a quick confirmation of this usage by searching for "pen register exception" on Google: http://www.google.com/search?sourceid=navclient&q=%22pen+register+exception%22
A plain view search doesn't require a warrant because the discovery of evidence in plain view is not actually a search (i.e., the police weren't looking for evidence, they just came upon it accidentally/fortuitously). Similarly, when a drug-sniffing dog detects narcotics in luggage in an airport, the use of the dog doesn't constitute an actual search. UNITED STATES v. DUNN, 480 U.S. 294 (1987). The judiciary nonetheless refers to these devices as exeptions to the warrant requirement regarding searches.
So, while pen registers are exempt from the probable cause requirement of wiretaps precisely because they are not "true" wiretaps, the case law dealing with the former typically does so in the context of the latter. See, e.g. U.S. v. MILLER, 116 F.3d 641 (2d Cir. 1997); U.S. TELECOM, ASS'N, v. F.C.C., 227 F.3d 450 (C.A.D.C. 2000). In that respect (and in a NY case I read in law school, which I can neither remember the name of nor find as of yet), a pen register is a *type* of wiretap that does not constitute a search for Fourth Amendment purposes, notwithstanding the practical differences you correctly noted.
If you're really, really interested, you might want to start with KATZ v. U.S., 389 U.S. 347 (1967) and SMITH v. MARYLAND, 442 U.S. 735 (1979).
Thanks for the cites. I would read them now, but I'm in the wilderness on a dial-up. Lexis is agonizing out here.
I was focusing on the word "wiretap" as I think it is understood by the majority of people who worry about whether the Patriot Act expanded government powers too far.
The point I wanted to make was that the police and the FBI may not listen to your phone conversations (or read your email) without a judicial finding of probable cause. That is true in criminal cases, intelligence cases and terrorism cases.
Ed, thanks for your generosity in the use of your forum.
For anyone wishing to read more on the USA PATRIOT Act and related post-9/11
policies and executive orders, visit the ACLU website at the link below.
Under the section labeled "Features," you can read the ACLU's brief
in their lawsuit against Section 215 of the USA PATRIOT Act. You can also
read about their challenge to "National Security Letters," the scarier cousin to Section 215. Also of interest is the section entitled, "Conservative Voices."
It looks like it's not just liberals who are concerned about the government's new powers, post 9/11.
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=12126&c=207