COUNTY OF SAN MATEO

COUNTY MANAGER'S OFFICE

DATE:

HEARING DATE:

May 1, 2003

May 6, 2003

TO:

Honorable Board of Supervisors

FROM:

John L. Maltbie, County Manager

SUBJECT:

County Manager's Legislative Report # 8

State Budget Update

On May 1, 2003, as a result of bipartisan agreement Legislative Leaders put forth a $3.6 billion reduction package that includes $1.85 in Pension Obligation Bonds and $1.7 billion in additional reductions necessary to erase the $34.6 billion shortfall. The package contains six measures that both houses will take up in the coming days. The package includes:

_ $1.85 billion Pension Obligation Bond to fund state CalPERS contribution for the budget year with a five-year pay back;

_ $1.2 billion in statutory adjustments;

_ $316.9 million savings to health programs including: $42.5 million from semi-annual Medi-Cal reporting, $25 million savings in IHSS wage adjustment, $50 million reduction from dental services, $194,000 reduction from Medi-Cal county administration accountability;

_ $327 million savings in K-12 education;

_ $113.2 million prior year savings;

_ $48.7 in deferrals;

_ $18.4 million savings by phasing out the Scholarshare program; and

_ $595 million administrative reductions.

You will recall that a month ago (March) the Legislature approved $8.3 billion of reductions; and also acknowledged that the trigger to increase the vehicle license fee will be pulled to raise another $4 billion.

Details of the bipartisan deal are attached. Please note that this package does not include the $500 million "unallocated city and county reduction."

The California Supreme Court ruled in White v. Davis that the State Controller is not allowed to pay the salaries of state employees without a Budget. However, federal law requires those employees governed by the Minimum Wage and Standards Act to be paid for their work in a timely fashion, the Court concluded that state employees may only be paid minimum wage level for their work until a Budget is approved.

USA Patriot Act

H.R. 3162
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USAPA) of 2001

Background

In just weeks of terrorist attacks the Congress enacted the USA Patriot Act. H.R. 3162, a 342-page law that made sweeping changes to more than 15 different statutes including the Foreign Intelligence Surveillance Act (FISA) of 1978. Just 45-days after the tragic events of September 11, on October 26, 2001, President George W. Bush signed the USA Patriot Act into law. Drawing praise from law enforcement, the measure expands the ability to tap telephones and monitor internet usage in the pursuit of terrorists. Civil libertarians, on the other hand, hailed the measure as a threat to personal liberties and an assault on privacy, free speech and freedom of information.

The complex provisions were enacted with speed, without inter-agency review and suspension of the normal committee and public hearing process. In fact, the Senate Judiciary Committee had a brief one-and-a-half hour hearing on the Act at which Attorney General Ashcroft testified but took no questions. The fast-tracked provisions included the September 11 victims' assistance. The measure was overwhelmingly approved by the House of Representatives 356-66; and by the Senate 98-1.

Brief Summary

The Patriot Act expands federal powers to search and conduct surveillance. Ostensibly, the measure was enacted to enhance domestic security against terrorism. The Patriot Act expands surveillance procedures, monitoring of international money exchanges, removes obstacles to investigating terrorism, provides for increased information sharing capabilities among law enforcement and creates a counter terrorism fund.

USA Patriot Act increases the authority of the Attorney General to detain and deport non-citizens with little or no judicial review; and the Attorney General and Secretary of State are also given the authority to designate domestic groups as terrorist organizations and deport any non-citizen who belongs to them. The Act increases the penalties of the Computer Fraud and Abuse Act and defines certain computer crimes as "cyber-terrorist."

The measure also provides funds to states and local government for homeland security. San Mateo County and its cities received funds from the Act.

Surveillance

USAPA expands all areas of surveillance including wiretaps, search warrants, orders and subpoenas; expands the definition of "domestic terrorism"; and expands the scope and penalties for Computer Fraud. Allows nationwide roving wiretaps; allows for the disclosure of customer records by Internet Service Providers (ISPs) and telecommunications services; and creates a nationwide DNA database of terrorist and non-terrorist category of "any crime of violence." Allows law enforcement to get voicemail and other stored wire communications without an intercept order. And provides relief of up to $10,000 for those who discover that law enforcement or the foreign intelligence authorities have disclosed information about them improperly.

The measure expands the federal government's power to eavesdrop and have access to financial and computer records as "tools to track terrorists."

It was reported to the administrative office of the U.S. Courts on May 1, 2003 by U.S. Attorney General John Ashcroft that the government had requested and won approval for a record 1,228 warrants last year for secret wiretaps and searches of suspected terrorists and spies. In 2001 the number of approved warrants was 934; and 1,003 in 2000.

Sunset

Several of the surveillance provisions of USAPA expire on December 31, 2005.

The following provisions are not subject to the sunset provision:

_ the Grand Jury sharing of information,

_ scope of subpoenas for records of electronic communications,

_ telecommunications privacy provisions; and

_ single jurisdiction search warrants for terrorism.

Discussion

Since the enactment of the Patriot Act, several states and local governments have initiated critical reviews of its provisions. It is reported that 90 cities and counties, including San Francisco, Mill Valley, Oakland, Berkeley, Baltimore and Detroit have approved resolutions expressing concern and opposition to provisions of the Patriot Act.

Additionally, civil libertarians and constitutional rights advocates including the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Center (EPIC) have brought suits.

When the measure passed many moderates and civil libertarians in Congress agreed to support it, if it contained a sunset, making many of the critical provisions temporary. Reportedly, Democrats have grown increasingly concerned with the lack of information coming from the Justice Department on how its agents are using the new and expanded powers. Until such review and information is forthcoming, they have maintained strong opposition to any repeal of the sunset as proposed by Senator Orin Hatch.

Opponents

According to Jerry Berman, Executive Director for the Center for Democracy and Technology, the trouble with the bill [H.R. 3162] is that it's very sweeping and it can apply not just to suspected terrorists but people and organizations that may be engaged in lawful action. The Patriot Act was enacted directly in response to terrorist attacks on the World

Trade Center and the Pentagon. Civil rights advocates have consistently cautioned against expanding surveillance powers unnecessarily arguing that there is little evidence that tougher surveillance could have prevented the September 11 tragedies.

"The passage of this broad legislation is by no means the end of the story," ACLU Executive Director Anthony Romero said in a statement. "We will now work with ACLU affiliates around the country to monitor its implementation.

The ACLU has rolled out a multimillion-dollar national campaign to challenge government anti-terror policies, dubbed Keep America Safe and Free. "The Bush administration has presented Americans with a false dichotomy that we must choose between being safe or free," said ACLU national spokes woman Emily Whitfield. "We're saying there doesn't have to be a choice. We can stay safe and free at the same time."

The ACLU has filed more than 24 lawsuits for civil liberties violations since September 11 attacks, including several on behalf of airline passengers who claim they were victims of racial profiling.

Serra High School/Midcoast Council/Green Party and ACLU

Serra High School students Justin Alley, James Latimer, and Nathan Visconti have requested your Board oppose provisions of the Patriot Act. "The scary thing about this is, if the war on terrorism never ends, a generation of people are never going to know what it's like to have freedom," said Latimer. Specifically, the students are asking that police departments not engage in racial profiling or spying; that libraries throw out circulation records after a minimal amount of time; and that libraries post signs that warn people that USAPA allows governments to find out what books they are reading. Further, the students hope that your Board will ask the local congressional delegation to fight for the repeal of the Act.

The Green Party of San Mateo County, the MidCoast Community Council and Peace Action of San Mateo County have all requested the Board of Supervisors oppose provisions of the Patriot Act. Copies of their correspondence are attached.

Application of the Law

According to federal officials and public records, the Justice Department and the Federal Bureau of Investigation have issued hundreds of "national security letters" that require business to turn over electronic records about finances, telephone calls, e-mail and other personal information. These letters, a type of administrative subpoena, may be issued independently and are not subject to judicial review, unless a case comes to court. In 2002, United States Attorney General John Ashcroft personally signed 170 "emergency foreign intelligence warrants" and the Justice Department made more than 1,000 applications for warrants. Moreover, it is reported that the Justice Department and FBI refuse to provide summary data about how often the letters are used. Legislation has been introduced to require the Department to provide the data.

Senator Patrick Leahy, one of the authors of the Patriot Act, makes the case that before the Department of Justice asks Congress for more powers or to make Patriot Act permanent, it needs to disclose how its using its current powers. Thus far, the Department has balked at Freedom of Information Act requests from the press and the public, as well as Congressional requests for more detailed reporting.

Related Legislation

H.R. 1157, "Freedom to Read Protection Act of 2003." Would amend the Foreign Intelligence Surveillance Act to exempt bookstores and libraries from the Patriot Act. Among the most controversial provisions of the Patriot Act is the requirement that libraries and bookstores provide the federal government with records of its patrons' reading habits. This measure would restore privacy protections to library and bookstore patrons. Some libraries routinely destroy records of what patrons check out, thus leaving no documentation. H.R.1157 has 73 co-sponsors.

Recommendation

Your Board's Legislative Committee recommends you approve a resolution that supports the enactment of H.R. 1157, the "Freedom to Read Protection Act of 2003;" and sunset provisions in H.R. 3162.

H.R. 1157 would amend the Foreign Intelligence Surveillance Act to prohibit search or seizure of personal information from a bookseller or library. Additionally, this measure would require the Attorney General to regularly provide information to the appropriate congressional oversight committee on the numbers of letters of request for information that have been made.

A resolution in support of H.R. 1157 the "Freedom to Read Protection Act of 2003" and of the sunset provision contained in H.R. 3162 USA Patriot Act is attached for your consideration and approval.