Originally Published: 4/26/2006
THE USA PATRIOT ACT
By The Issue Wonk
The acronym “USA Patriot Act” stands for United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. It was past shortly after the attacks of September 11, 2001 and was designed to enhance federal investigations so that terrorists could be found and caught by giving federal law enforcement unprecedented power. The USA Patriot Act is Public Law 107-56. [text] Congress approved the bill hastily and, realizing this, set 16 of the most aggressive provisions to expire on December 31, 2005, probably to ensure that a future Congress would be able to take the time to consider and deliberate all ramifications. On December 22, 2005 the Act was not renewed but it was extended to February 3, 2006. It was extended again on February 1, 2006 to March 10, 2006. On March 9, 2006, 14 of the 16 sections were made permanent, and the two (2) most contentious were extended for four (4) years.
In general, the USA Patriot Act amends, by addition or expansion, various sections of the United States Code: Title 8, Aliens and Nationality; Title 12, Banks and Banking; Title 15, Commerce and Trade; Title 18, Crimes and Criminal Procedure; Title 20, Education; Title 31, Money and Finance; and Title 50, War and National Defense. The Congressional Research Service (CRS) issued a report in April, 2002 that it calls a “sketch” of the USA Patriot Act.1 It describes the five (5) categories of changes: Criminal Investigations: Tracking and Gathering Communications, Foreign Intelligence Investigations, Money Laundering, Alien Terrorists and Victims, and Other Crimes, Penalties, & Procedures.
The CRS Sketch describes federal communications privacy law as a “three tiered system, erected for the dual purpose of protecting the confidentiality of private telephone, face-to-face, and computer communications while enabling authorities to identify and intercept criminal communications.” It describes the first tier as Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2510 et seq.), which “prohibits electronic eavesdropping . . . in most instances. . . [but] gives authorities a narrowly defined process for electronic surveillance to be used as a last resort in serious criminal cases.” The second tier “covers telephone records, e-mail held in third party storage, and the like.” (18 U.S.C. § 2701-2709) The third tier “is the procedure that governs court orders approving the government’s use of trap and trace devices and pen registers . . .” (18 U.S.C. § 3121-3127) The USA Patriot Act modifies the procedures in each of the three tiers.
Following are the provisions that are the most controversial.
National Security Letters: The original Section 505 of the USA Patriot Act expanded the government’s power to obtain citizens’ records through the use of National Security Letters (NSLs). NSLs were created by FISA to combat espionage and terrorism. They were devised as an exception to privacy law. Initially, they enabled the FBI to review, in secret, records of suspected foreign agents. NSLs, unlike traditional search warrants, do not need to be approved by a judge. The FBI issues them on their own initiative. Originally it was required that they be issued by FBI senior officials. Now they may be issued by supervisors. NSLs are issued to places like libraries, doctors’ offices, banks, and Internet service providers. The USA Patriot Act changed the use of NSLs as investigatory tools by expanding them from being used against “foreign agents” to being used against U.S. residents and visitors suspected to be terrorists or spies. In an effort to identify terrorists, the FBI can now obtain information on Americans who may have had only casual contact with a suspected terrorist. (For instance, a terrorist mis-dials a phone number and gets your phone.) In November, 2005, the Washington Post reported that the FBI now issues more than 30,000 NSLs a year.2 Under the original USA Patriot Act, there was a provision known as the “gag rule,” which made it a crime for recipients, like libraries, to tell anyone about the request except their own lawyers, but only after they had first informed law enforcement authorities that they were consulting a lawyer and the name of that lawyer. Under the latest revision of the Act, this was changed and recipients now are able to consult a lawyer without first informing law enforcement authorities. Because of this secrecy provision, we have no way of knowing whether our doctors or ISPs or anyone else is handing over our confidential records to the government. This means that people whose privacy has been invaded will never be provided the opportunity to rectify any mistake or seek redress in the courts for any abuse. According to the Washington Post:2
“A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.”
The fact that NSLs can be issued by FBI field supervisors with no oversight, for any reason whatsoever, has been criticized as an abuse of power. Because of their sweeping range, they are scooping up records, such as telephone calls, e-mails, and financial and medical records, of ordinary Americans. Much of the criticism has been directed at the depositing of all this information into government data banks, which can be shared among government agencies and private companies. In 2003 President Bush reversed a long-standing policy requiring agents to destroy the files on innocent American citizens, companies, and residents when the investigations have been concluded. (See LexisNexis) And in 2005 he signed Executive Order 13388 which expands access of those files for “state, local and tribal” governments and for “appropriate private sector entities,” which are not defined.
Sneak and Peek Searches: Section 213 of the Patriot Act allows for “sneak and peek” warrants, authorized by the Foreign Intelligence Surveillance Act (FISA), to be extended to any criminal search, not just for foreign intelligence. This allows for secret searches of private homes and property and places of business without prior notice and without owners knowing about it until weeks or months later, if ever. Police used to have to knock on your door and announce their intention to enter and search before executing the warrant. FISA changed the law to allow “sneak and peek” in cases where “foreign owners or their agents” were suspected of terrorism. The Patriot Act expanded the use if “immediate notification of the execution of the warrant may have an adverse result.” Such warrants are no longer limited to terrorism investigations but now extend to include any federal criminal investigation. And the notice needs to be given of the search or wiretap “within a reasonable period of its execution,” which is not specified and which can be extended “for good cause.” This means notification can be delayed indefinitely.
Business Searches: The original Section 215 of the Patriot Act amended FISA to authorize investigators to obtain a court order from the Foreign Intelligence Surveillance Court (FISC) to seize “any tangible things (including books, records, papers, documents, and other items” that the FBI claims are needed “to protect against international terrorism or clandestine intelligence activities.” Third-party holders of financial, library, travel, video rental, telephone, medical, and church records, etc. can be searched without your knowledge or consent, providing the government says it’s trying to protect against terrorism. Previously the government needed a warrant, based on probable cause, to access private records. The Fourth Amendment to the Constitution and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provides that, if the government wants to search it, it needs to show “probable cause” that a crime has been, or is about to be, committed in order to obtain a warrant from a judge. FISA authorized warrantless surveillance on foreigners or agents of a foreign power, so long as the primary purpose was to obtain foreign intelligence information. Surveillance on citizens or legal residents, however, still requires a warrant. FISA also said that records could be obtain only “for the purposes of conducting foreign intelligence” on a target “linked to foreign espionage” and on an “agent of a foreign power.” Now, however, changes to FISA require only that the FBI certify to the FISA judge (no need for evidence or probable cause) that the search protects against terrorism. Also, the target of a search doesn’t have to be a terror suspect, so long as the government’s purpose is “an authorized investigation . . . to protect against international terrorism.” And, don’t forget, the USA Patriot Act allows these searches to be secret and, since there is the “gag” order, the order cannot be challenged in court. FISA holds that a citizen cannot be searched “solely on the basis of activities protected by the First Amendment to the Constitution.” The Act mandates that the Department of Justice report regularly to Congress but the only thing they have to report is the number of applications they sought and the number that were granted.
Unfortunately, the subject of the search need not be suspected of any involvement in terrorism. In fact, the order doesn’t even have to name any particular person but may encompass an entire collection of data related to many individuals (such as the records of an Internet service provider). The Patriot Act provision says that the application must specify that the records are “sought for” an authorized investigation, but the judge only has to determine that the FBI “says” it is for an “authorized investigation.” The applications do not have to be under oath, and it doesn’t require that they be in writing.
The latest revision to the USA Patriot Act now allows institutions to challenge whether the government acted in bad faith in demanding records, although the government cannot be forced to provide evidence connecting the demand to terrorist suspects. Also, the revision changed the applicability to libraries, so that it only applies to the use of library computers for Internet access, not to books or other reading material.
Domestic Terrorism: Section 802 of the Patriot Act creates of new category of crime called “domestic terrorism” and defines it as acts “dangerous to human life” if the actor’s intent is to “influence the policy of a government by intimidation or coercion.” It appears, on its face, to be intended to intimidate civilians. According to James Dempsey,3 “It essentially amounts to a transfer of discretion to the Executive Branch, which can pick and choose what it will treat as terrorism, not only in charging decisions but also in the selection of investigative techniques and in the questioning of individuals. This section has received a lot of attention from both right-wing groups (including fundamentalist Christians) and left-wing groups because it creates a new crime that could be used to prosecute said groups, such as Greenpeace or Operation Rescue.
Secret Searches: Section 218 of the Patriot Act amends FISA so that it is easier to perform secret searches. According to FISA, “probable cause” had to be demonstrated to get a search warrant based on the “primary purpose” of the search or wiretap for “foreign intelligence,” except in very few cases. The target had to be linked to “foreign intelligence.” American citizens would not be searched or wiretapped unless they were “agents of aa foreign power.” The Patriot Act expanded it so that FISC can approve the warrants if the purpose is “significant” rather than “primary.” Also, prior to the Patriot Act, information gathered from the secret searches could not be used for prosecution. The Patriot Act amended FISA so that the information gathered can be passed along for prosecution purposes. Indeed, the number of warrants issued has risen.
Pen Register/Trap and Trace: A pen register collects the outgoing phone numbers placed from a specific telephone line. A trap and trace device captures the incoming numbers placed to a specific telephone line. Neither reveals the content of the communication. Section 214 of the Patriot Act authorizes these tools so long as the government certifies that the information obtained is “relevant” to an ongoing investigation against international terrorism. Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, a phone wiretap could be obtained by showing a “probable cause” that one of an enumerated list of crimes had been committed. Warrants were valid for 30 days. The Patriot Act amended this FISA provision so that the requirements were lessened. The FBI didn’t need “probable cause” or even reasonable suspicion to install a tap, but had to certify that the information obtained would be “relevant” to an ongoing investigation. The Patriot Act’s FISA amendment also makes these tools available in criminal investigations, in essence ignoring the “probable cause” requirement of the Fourth Amendment. In addition, Section 216 of the Patriot Act expands the “pen register/trap and trace” authority to Internet surveillance, particularly information about “dialing, routing, and signaling,” and expands the monitoring of this information to anything that is “relevant to an ongoing criminal investigation.”
Roving Wiretaps: Section 206 of the Patriot Act authorizes “roving” wiretaps; that is, taps specific to no single phone or computer but to every phone or computer a target may use. While this sounds straightforward, it has been criticized for its broad scope. What if the government decides to target every computer at, for instance, a university or a library or a place of business? Everyone who uses those computers will be tracked, traced, monitored. Also, Section 220 allows judges to authorize national wiretaps rather than ones limited to their jurisdictions. This is in direct violation of the Fourth Amendment which states that warrants must “particularly describe the place to be searched.”
The latest revision to the USA Patriot Act also included two (2) new provisions. One is to restrict access to methamphetamine ingredients by requiring pharmacies to sell non-prescription cold medicines behind the counter. The second imposes tougher sanctions, including the death penalty, for threats to port security, including placing a device or substance in U.S. waters that could damage a vessel or cargo.
1 The CRS Sketch is very informative. It is, however, an abbreviated version of The USA Patriot Act: A Legal Analysis. Read this if you want the long version, complete with citations and footnotes.
2 Gellman, Barton. The Washington Post, November 6, 2005.
3 Dempsey, James X., Statement before the Senate Committee on the Judiciary, November 18, 2003. [See text]
© The Issue Wonk, 2006