Patriot Act Hits another Roadblock Due to Privacy Issues

January 25, 2006 – Last month, just prior to the Congressional holiday recess, renewal efforts for the Patriot Act ground to a halt. The law, which gives the federal government sweeping search and seizure powers that many believe to be unconstitutional, had sixteen very controversial clauses that were due to expire at the beginning of this year. The Bush Administration had been pushing Congress to renew the law in its entirety, and to make it permanent. But when four Republican senators (a so-called "gang of four") joined with democrats to demand greater protections for individual privacy, they were able to launch a filibuster to prevent a long term renewal of the law. Instead, the Senate and House of Representatives were forced into a compromise that renewed the law until February 3, 2006.

The short term renewal was controversial by itself. Certain members of the Senate had suggested a three month extension of the existing law, but the White House said that they would not accept such a short term renewal that the President Bush would veto it. Then, a conference committee between both houses reached a compromise. They would renew the law for six months. But Congressman James Sensenbrenner (R-WI) shot that idea down saying that the renewal discussions had "ruined" the Christmas recess and that he was not about to have the renewal discussions ruin the Fourth of July recess too. (As an aside, isn’t it nice to know that our elected officials are driven by the important issues of the day?!)

The idea behind the extension was that once the Christmas recess was over, Congress would return and quickly negotiate a compromise bill that would be acceptable to all parties. But the Senate’s gang of four is back, and they are not happy with the House’s version of the law. In the House of Representative, Sensenbrenner is back and he doesn’t like the Senate version, which provides considerably more protection for personal liberty. This combination means that the most likely outcome will be a second extension of the current law.

The White House would like to see a permanent resolution to the dispute. Originally, the Bush Administration was unbending; saying that they would not agree to any changes in the current law. But it is looking more and more likely that they are not going to get everything that they want, so the Administration is now discussing possible compromise legislation.

The primary disagreement is over secret search powers granted to the government. These powers allow the FBI and other law enforcement agencies to conduct "sneak and peak" searches. In this type of search, the subject of the search is never notified that they are being investigated. They are never told that their property, personal possessions and financial records have been searched. And they have limited powers to appeal such a search if they do become aware of it.

Sneak and peak searches can be used to enter your home, seize financial records, seize library records, and to look at the purchases that people are making. They can also be used for wire-taps of regular phone lines and cell phones. If a warrant for a "sneak and peak" search is served on a third party, like your landlord, that person can be sent to prison if he tells you that your home was searched.

The original law also made it illegal for anyone served with this type of warrant to speak with an attorney or to file suit to quash the warrant. But in a defiant move, at least one person who was served such a warrant when to the ACLU and sued the government over their inability to seek a court review. The federal court case resulted in a ruling that declared this provision of the law unconstitutional. In a great irony, most of the records of that case still remain under seal.

At this point it is unclear what will happen with the Patriot Act but it is likely that the House of Representatives will be forced to reach a compromise with greater civil liberties guarantees or face another filibuster in the Senate.

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