April 23, 2004

Rachel Brand's Friday Lunch Keynote

If you're listening to Rachel Brand's defense of the Patriot Act you might want to read EFF's analysis of the Act. It's my hope that Kevin Bankston of EFF is still in the audience to ask the tough questions of Brand. He's spent the last year or more studying the Act, speaking about it, and searching for avenues by which to mount a legal challenge.

Update: Now I can see he was the first to stand up. Also, Ann Brick of the ACLU of Northern California hopped up and got the first shot. Makes the good point about the difference between a grand jury subpoena and a Patriot Act section 215 one. With the grand jury, both sides get a hearing and it could be quashed, as happened with the NLG subpoena in Iowa in February. With the Patriot Act, the subject of the subpoena gets no hearing and the judge has no discretion to deny the request.

Brand won't talk about the FISA court with Kevin. So he tries to get the answer no one will offer: Under 216 of Patriot can the Feds collect URLs during a wiretap? Brand's not answering this really either. All we get is "It's my understanding that this hasn't happened yet." and "No court has ruled on that."

The unfortunate part of this is that the office of "Legal Policy" of the DOJ is here defending the Patriot Act. While Brand billed the talk as educational and as an attempt to correct factual misunderstandings of the Bill, that simply wasn't what we got. Besides, this is not a group that is suffering from misunderstandings of the Act. The problem with her defending the Act is that once we've set up the adversarial structure, in a discussion with lawyers, we've lost. I had hoped that the office of Legal Policy would be more interested in entering into a discussion of policy concerns, interested in listening. Once lawyers dig in, the discussion of policy choices is over.

Posted by brianwc at April 23, 2004 12:57 PM
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