Patriot Act Emergency Disclosure Prompts Concerns

Gretchen Gallen
WASHINGTON, D.C. – As sections of the Patriot Act face expiration by the end of the year, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security has been holding hearings to determine which sections, if any, should be renewed.

On May 5, the subcommittee focused its review on Section 212 of the Act that allows the government to obtain email and other electronic communications without a subpoena in "emergency" situations. The section allows the government to request that Internet service providers disclose either customer records or the content of customers' communications in any situation that involves "immediate danger of death or serious physical injury."

The Bush administration wants all the sections of the Patriot Act to be made permanent, but many Democrats on the judiciary committee are concerned over potential abuses, in particular Rep. Jeff Flake, R-Ariz., who feels that many of the more controversial parts of the Act should be reformed but not repealed.

James Dempsey, executive director of the Center for Democracy and Technology, said he supported renewal of Section 212 but that certain "checks and balances" should be added, although the Bush Administration has been vague in agreeing to any kind of congressional involvement in enforcing sections of the Act.

Dempsey recommended that Congress establish a remedy for abuse, barring the government from using information if it misleads the service provider into believing there was an emergency.

Rep. Sheila Jackson-Lee, D-Texas, said during the review that the term "emergency" could be used too broadly by government officials, and another representative, Rep. Dan Lungren R-Calif., said he was not concerned about the scope of Section 212, but he wondered why there should not be some kind of judicial review of information turned over to the government.

"What would be the harm in requiring some review by courts after the fact?" Lungren said.

Assistant Attorney General William Moschella said the administration was open to looking at any recommended changes to the Patriot Act, but he did not endorse any specific proposals.

According to a statement given by Moschella to the subcommittee, Section 212 has aided law enforcers in life and death situations, including in the case of an 88-year-old Wisconsin woman who was kidnapped and held for ransom in February 2003. Section 212 and other Patriot Act provisions were used to gather information, including communications provided by ISPs, that helped to identify several suspects in the case.

In his written testimony, Moschella stated that "precious time would be wasted" in emergency situations if the government had to wait for a court order or grand jury subpoena to obtain information under Section 212.

"Requiring such a time-consuming procedure would eliminate the vital benefits provided by Section 212, because, in some emergency situations, even a matter of minutes may mean the difference between life and death," he said.

Moschella said the administration would "certainly be concerned if the committee went in that direction."