PATRIOT Section 212 allows your ISP or phone company to share your private communications with the government even if it isn't served with a search warrant. This tramples on your rights by allowing the Department of Justice to do an end-run around laws that safeguard the privacy of your personal communications.
Section 212 is a special case because it has been replaced by subsequent legislation -- namely Section 225 of the Homeland Security Act (HSA) of 2002.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 HSA Section 225 is now the law at issue, and as explained below, it should be repealed.
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 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, so 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 done 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.
Communications providers now need only a "good faith" belief that there is a life-threatening emergency to justify the disclosure of your 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 pushed Congress to expand its powers under PATRIOT. By pushing for additional provisions in often-obscure bills, it has worked to ensure that its 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.
HSA Section 225 takes away your rights by allowing the Department of Justice to do an end-run around laws intended to 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.
