"Patriot" - Section 209

spy1 · Posted: Fri Mar 12, 2004 11:24 am Post subject: "Patriot" - Section 209

~ How Section 209 Changed the Law

Before PATRIOT, the privacy of your voice mail was protected
by the Wiretap Act. This meant that in order to listen to
your messages, the FBI had to secure a wiretap order. These
orders are like "super" warrants - they have even stricter
Constitutional requirements than do warrants for physical
searches.

After PATRIOT, however, your voice mail is governed by the
Electronic Communications Privacy Act (ECPA), a statute that
gives you much less legal protection against government spying.
Now, instead of needing a wiretap order to listen to your
voice mail, the FBI can use other legal processes with weaker
privacy-protection standards:

* If you haven't listened to your voice mail messages and they
are 180 days old or less, the FBI can use a search warrant to
gain access to them.
* If you have listened to your messages, or if they are older
than 180 days, the FBI can use a special court order for
stored communications, or a subpoena.
* In some cases, the FBI may be able to simply ask for the
voice mail, and your phone company may give it, without
fulfilling any legal requirements at all.

As a result, the privacy of your voice mail is substantially
reduced:

* Before PATRIOT, the FBI could gain access to your voice mail
only by showing facts to a judge that demonstrate "probable
cause" to believe that you are committing a crime. Now, under
certain circumstances, it need only demonstrate "reasonable
grounds" for the search to get a court order - or, if it uses
a subpoena, mere "relevance" to an investigation.

* Before PATRIOT, the FBI eventually had to notify you if it
listened to your voice mail messages. Now if they use a search
warrant, the only way you'll find out is if the FBI uses your
voice mail against you in court.

* Before PATRIOT, the FBI could listen to your voice mail only
if you were suspected of one of a limited number of serious
crimes. Now it can gain access to your voice mail messages
for any kind of criminal investigation whatsoever.

* Before PATRIOT, if the FBI listened to your voice mail
illegally, it couldn't use the messages as evidence against
you - this is the so-called exclusionary rule. But the ECPA
has no such rule, so even if the FBI gains access to your
voice mail in violation of the statute, it can freely use
it as evidence against you.

~ Why Section 209 Should Sunset

Section 209 is a perfect example of the opportunism shown by
the Department of Justice in the wake of the 9/11 terrorist
attacks. Knowing that a bill tagged as "anti-terrorist"
couldn't fail to pass, the DOJ loaded PATRIOT with its entire
wish list of new powers, regardless of whether these powers
specifically targeted terrorism. Section 209 is one such power -
expanding the FBI's ability to search your communications in
any criminal investigation, terrorism-related or not. Yet
the DOJ never indicated that the previous law significantly
hindered its investigations, much less put stumbling blocks
in the fight against terrorism.

~ Conclusion

Passed by Congress in a climate of fear, Section 209 effects
a dangerous and unnecessary reduction in citizens' privacy.
EFF strongly opposes its renewal, and we urge you to oppose
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

(Make SURE you click on "Send a FAX" at the bottom of that page!!!)

Pete


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