"Patriot" Section 212/H.S.A Section 225

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Section 212 is a special case, because it has been replaced by
subsequent legislation - namely, Section 225 of the Homeland
Security Act (HSA) of 2002. HSA Section 225 expanded on the
powers granted by PATRIOT 212, but unlike that PATRIOT provision,
HSA Section 225 WILL NOT SUNSET. HSA Section 225 is now the
law at issue, and as explained below, it should be repealed.

~ How PATRIOT Section 212 and Homeland Security Act Section 225
Changed the Law

Before PATRIOT, in order to get communications records or stored
communications - such as email or voice mail - from your ISP or
phone company, the FBI had to get a search warrant or court order
from a judge, or get a subpoena from a grand jury. Congress gave
us this protection in the Electronic Communications Privacy Act
of 1986, because, even though your ISP or phone company stores
messages for you, they're still your private messages. They
shouldn't be shared without your consent unless a court or grand
jury demands them.

After PATRIOT Section 212, your ISP or phone company could hand
over your private records and messages to any law enforcement
agent, as long as that communications provider reasonably
believed that the immediate danger of death or serious physical
injury required it to do so. This could be take place without
your knowledge or consent.

But Section 212 wasn't the end of the story. The Homeland Security
Act expanded the power of PATRIOT Section 212 by 1) lowering the
relevant standard from "reasonable belief" of a life-threatening
emergency to a "good faith belief," 2) allowing communications
providers to use the emergency exception to disclose your data
to any government entity, not just law enforcement, and 3) dropping
the requirement that the threat to life or limb be immediate.
Most significantly, HSA Section 225 does not expire, rendering
the sunset of PATRIOT Section 212 irrelevant.

~ Why Homeland Security Act Section 225 Should Be Repealed

Communications providers now need only a "good faith" belief that
there is a life-threatening emergency to justify the disclosure of
your personal communications and records. This belief could be
based solely on the representations of a government agent claiming
that there is such an emergency - whether or not that is actually
the case. This kind of abuse has already occurred: one
Department of Justice attorney said he needed information to
investigate a terror threat when he actually was investigating a
bank robbery, while another agent cited a bio-terrorism threat
in what turned out to be a drug sting.

HSA Section 225 is a prime example of how the Department of Justice
has quietly and incrementally persuaded Congress to expand its powers
under PATRIOT. By pushing for additional provisions in often-obscure
bills, it has worked to ensure that these powers are expanded and
made permanent before the public debate over PATRIOT's sunsetting
provisions has even begun. This subtle legislative opportunism
must be exposed and rebuked; HSA Section 225 must be repealed.

~ Conclusion

HSA Section 225 takes away your rights by allowing the Department
of Justice to do an end-run around laws that protect
the privacy of your personal communications. EFF strongly
supports its repeal, and we urge you to support it, too. We also
support the Security and Freedom Ensured Act (SAFE Act,
S 1709/HR 3352) and encourage you to visit EFF's Action Center
today to let your representatives know you support the bill:
http://action.eff.org/action/index.asp?step=2&item=2866


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