We came, we lobbied… you and hundreds of others called or emailed…but Congress still passed the Patriot Act re-authorization, without any safeguards, oversight or other reforms. On February 3, DDF President Woody Kaplan and I joined with dozens of other activists on Capitol Hill to ask members of Congress to refuse to reauthorize the expiring Patriot Act provisions unless serious reforms were included. The lobby day was sponsored by a number of organizations, but primarily by DDF, the Bill of Rights Defense Committee (BORDC), and the Pakistani American Public Affairs Committee. Our lobby visits were backed up by emails and phone calls of hundreds of activists around the country who took action based on alerts that DDF and BORDC sent out.

These lobby visits, emails and phone calls were crucial; but, in the end, we were not able to mobilize enough voices to counter the prevailing political winds. At the end of the month, the Senate and House both voted to extend the provisions for a year, without any privacy protections or reforms. As is often the case, the procedure used to pass the extension is a bit confusing. Congress had to rush to pass the extension before the provisions were set to sunset, so Senator Reid simply proposed an amendment to the Medicare Physician Payment Reform Act. The amendment was approved by a voice vote in the Senate (so we have no record of who voted for or against). The House then voted to concur with the Senate amendment in a recorded vote: the House vote is here (it was 315-97, with 20 not voting). Yes, the Patriot Act has nothing to do with Medicare Physician Payments, but that bill had to pass quickly, so Congressional leadership just slapped the Patriot Act on to it. Although the procedure is confusing, this was a 'clean' vote on the Patriot Act, there were no other items in the amendment, so we can hold members of the House accountable for their vote..

PATRIOT Act Talking Points
PATRIOT Act Background

Apparently, all it takes is a post-it note from an FBI agent to convince AT&T, Verizon and MCI to turn over our telephone records. Really! The latest Inspector General Report on the FBI's abuse of National Security Letters (NSLs) reveals that the FBI illegally collected thousands of telephone records between 2002 and 2006. In some cases, FBI agents cited non-existent terrorism emergencies, but often enough, they simply asked-or scrawled a number on a post-it. In fact, one senior agent described how getting access to our phone records was as easy as "having an ATM in your living room."

This is the third IG report in 4 years to slam the FBI for illegally or improperly collecting information on Americans. The report on 'exigent' letters documents a casual relationship between FBI agents and employees of the telecoms, who all worked together at the FBI's Communications Analysis Center. Apparently FBI agents were not trained, did not understand, or simply ignored legal requirements and FBI policy regarding exigent letters and other requests for telephone records; and the telecom employees also disregarded the law and released information without the proper documentation. One employee said that he didn't think he was supposed to "police the police".

You will no doubt be surprised to learn that FBI Director Mueller says that the practice has been discontinued. But a secret opinion issued by Obama's Office of Legal Counsel (OLC) on January 8, 2010, gave retroactive justification for this improper collection of our phone records. The IG report alludes to the opinion stating "The OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency. "(p. 264) So the Obama administration has defended the improper data collection, AND found some legal theory to allow the FBI to continue the practice- a practice Mueller says they have stopped!

The IG report recommends that the opinion be shared with Congress, "so that Congress can consider [REDACTED] and the implications of its potential use." (p. 268) Senators Wyden (D-OR), Durbin (D-IL) and Feingold (D-WI) have written to Attorney General Holder asking that he release the OLC opinion to Congress immediately.

In April, 2009, the Obama administration revealed that the NSA had some problems with "overcollection" of domestic communications without a warrant. They vowed to do better, and members of Congress promised to investigate.

According to an article in the New York Times, those congressional investigations revealed that the NSA is still sweeping up the communications (it seems to be mostly e-mails) of thousands of Americans - without warrants. The NSA has responded with the claim that it was all a mistake and that those mistakes are being corrected. Hmmm… have we heard this before? Read more…

Three provisions of the Patriot Act will sunset at the end of this year. Congress should use this opportunity to review and examine all the surveillance laws, and reform or repeal those that have been found unconstitutional or subject to abuse. That review must include not only the Patriot Act, but the FISA Amendments Act and the Attorney General Guidelines (or FBI Guidelines). Under no circumstances should Congress consider renewing these provisions without taking a look at the whole surveillance picture.