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Balancing the Patriot Act Against Internet Users


The Bush administration is in the middle of a campaign to reassure Americans they have nothing to fear from the USA Patriot Act. Parts of the law expire this year unless Congress acts to renew them. Some supporters of the law feel the best way to save it is to make minor changes that would help protect civil liberties. NPR's Larry Abramson reports on one man's efforts.


The debate over the Patriot Act is creating a lot of work for students of surveillance law, but Professor Orin Kerr of George Washington University welcomes the challenge.

Professor ORIN KERR (George Washington University): It's a pleasure to be here today to discuss Section 212 of the USA Patriot Act.

ABRAMSON: Kerr testified last month before a House panel about this relatively obscure provision of the law. It allows an Internet service provider to disclose information about an e-mail message to police if there's a danger to life and limb, say a kidnapping or a terror plot in the making. When Kerr worked in the Justice Department before the Patriot Act, he says this is what used to happen when Internet service providers reported suspicious online conversations to police.

Prof. KERR: The FBI, or whatever the law enforcement agency on the other side, would say, `We can't accept those records.' The FBI or the law enforcement agency had to then contact a prosecutor. The prosecutor had to obtain a court order, find a judge, get the order signed, serve the order on the ISP, and then that would compel the ISP to disclose what, of course, the ISP wanted to do anyway.

ABRAMSON: That was an unacceptable delay, Kerr says. But many civil liberties advocates say the Patriot remedy goes too far and gives providers the right to rummage around in e-mails that may turn out to be harmless. A person could find evidence supplied by an ISP introduced in court even though there was no emergency to justify the search. Massachusetts Democratic Congressman William Delahunt shares that concern, so he made this proposal.

Representative WILLIAM DELAHUNT (Democrat, Massachusetts): What's the problem with a statutory, you know, exclusion?

ABRAMSON: In other words, give Internet users the same rights that telephone callers have right now, the right to have improper evidence suppressed or thrown out of court.

Rep. DELAHUNT: Mr. Kerr, why don't you give us some language? Could you send me some statutory language.

Prof. KERR: I'd be happy to.

Rep. DELAHUNT: Thank you.

ABRAMSON: This kind of thing happens all the time at congressional hearings: Lawmakers ask witnesses like Kerr to rewrite the law.

(Soundbite of bell)

ABRAMSON: A couple of weeks later, Kerr invites me to the fifth floor of the George Washington University Law School to see how his homework assignment is coming.

(Soundbite of elevator)

ABRAMSON: Inside his office, Kerr calls up the prose he's labored over and reads.

Prof. KERR: (Reading) `Section 2515 of Title 18 United States Code is amended by striking, quote, "wire or oral," end quote, and inserting, quote, "wire, oral and electronic," end quote.'

ABRAMSON: It ain't Shakespeare, but Kerr says this is the safest way to tweak a law like the Patriot Act, stick with standard legal terminology or else a judge might not know how to interpret the law. Kerr says changing these few words will reduce the chance of civil liberties violations.

Prof. KERR: Adding in the word `electronic' basically says, `OK. Whatever we used to for the telephone, let's do that for the Internet as well.' And it effectively expands the suppression remedy that is applicable right now in the telephone context so it also includes the Internet.

ABRAMSON: Kerr spent three years investigating computer crimes for the Justice Department. He says the emergency disclosure provision has long been on the list of powers that investigators have wanted. That's because the government is heavily dependent on third parties when doing Internet investigations.

Prof. KERR: The big difference between physical crime investigations and Internet crime investigations is that most of the Internet crime investigations happen through an Internet service provider or some--you know, what the law calls a third party, basically somebody who is not the government or the defendant, not the person who's being investigated.

ABRAMSON: Kerr is among a handful of surveillance cognoscente who can understand all this stuff. They've been following the Patriot debate closely, contributing to online debates about the earth-shaking impact of hair-splitting semantic changes. Civil liberties groups have long complained that Congress acted in haste when the Patriot Act passed initially just weeks after 9/11. Kerr says now that parts of the law are up for renewal, things are clearly different.

Prof. KERR: I don't think people realize how carefully Congress is thinking about these questions. And they're very important questions. I mean, it's e-mail privacy. What should the rules be that govern access to your e-mail? And people are interested and want to know more about it.

ABRAMSON: Kerr doubts that lawmakers will adopt his proposed change this time around. He says attention is focused on other Patriot Act provisions that have become hot-button issues. But he'll send his language over to the House Judiciary Committee, see what happens and keep a copy for himself for the next time anyone is interested. Larry Abramson, NPR News, Washington.

BLOCK: You're listening to ALL THINGS CONSIDERED from NPR News. Transcript provided by NPR, Copyright NPR.

Larry Abramson is NPR's National Security Correspondent. He covers the Pentagon, as well as issues relating to the thousands of vets returning home from the wars in Afghanistan and Iraq.