"By expanding the government's authority to secretly search private records and monitor communications, often without any evidence of wrongdoing, the Patriot Act has violated our most basic right--the freedom from unwarranted government intrusion into our private lives--and thwarted constitutional checks and balances," said Michael German, ACLU senior policy counsel and former FBI special agent, in his testimony. "Under the Patriot Act, the government has the right to know what you're doing, but you have no right to know what it's doing."
The provisions of the Patriot Act that are due to expire next month are the John Doe roving wiretap provision, which allows law enforcement to conduct surveillance without identifying the person or location to be wiretapped; Section 215, or the "library records" provision, which allows the government to gain access to "any tangible thing" during investigations; and the "lone wolf" provision, which permits surveillance of non-U.S. persons who are not affiliated with a terrorist group. All three provisions lack proper and fundamental privacy safeguards.
A number of inherently flawed Patriot Act provisions are not expiring this year and also need reform, including the National Security Letter (NSL) provision. The NSL provision greatly expands the FBI's ability to secretly demand sensitive and private customer records from Internet Service Providers without prior judicial approval and to impose gag orders on record demand recipients. The FBI's gross misuse and abuse of the NSL statute led to consecutive and embarrassing reports by the Department of Justice's Office of the Inspector General.
The ACLU has successfully challenged the constitutionality of the amended NSL statute's gag provisions in a lawsuit called Doe v. Holder. A lower court ruled in 2007 that NSL gag provisions were unconstitutional and in December 2008, the U.S. Court of Appeals for the Second Circuit upheld that ruling in part, agreeing that the portions of the NSL statute's gag provisions violated the First Amendment. In August 2010, as a result of a settlement in the case, the FBI partially lifted the gag on the ACLU's client and the first NSL recipient to challenge the records demand, Nick Merrill, who is now publicly able to identify himself.
"It is time for Congress to act," German's testimony concluded. "Lawmakers should take this opportunity to examine thoroughly all Patriot Act powers, and indeed all national security and intelligence programs, and bring an end to any government activities that are illegal, ineffective or prone to abuse.... Serving as an effective check against the abuse of executive power is more than just Congress' responsibility; it is its patriotic duty."