18 May Discuss the advent and evolution of the U.S.A. Patriot Act. Also, discuss the constitutionality of the legislation as well as any concerns that have been voiced with the legisla

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SURVEILLANCE UNDER THE USA/PATRIOT ACT

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What is the "USA/Patriot" Act?

Just six weeks after the September 11 attacks, a panicked Congress passed the "USA/Patriot Act," an overnight revision of the nation's surveillance laws that vastly expanded the government's authority to spy on its own citizens, while simultaneously reducing checks and balances on those powers like judicial oversight, public accountability, and the ability to challenge government searches in court. 

Why Congress passed the Patriot Act

Most of the changes to surveillance law made by the Patriot Act were part of a longstanding law enforcement wish list that had been previously rejected by Congress, in some cases repeatedly.  Congress reversed course because it was bullied into it by the Bush Administration in the frightening weeks after the September 11 attack. 

The Senate version of the Patriot Act, which closely resembled the legislation requested by Attorney General John Ashcroft, was sent straight to the floor with no discussion, debate, or hearings.  Many Senators complained that they had little chance to read it, much less analyze it, before having to vote.  In the House, hearings were held, and a carefully constructed compromise bill emerged from the Judiciary Committee. But then, with no debate or consultation with rank-and-file members, the House leadership threw out the compromise bill and replaced it with legislation that mirrored the Senate version.  Neither discussion nor amendments were permitted, and once again members barely had time to read the thick bill before they were forced to cast an up-or-down vote on it.  The Bush Administration implied that members who voted against it would be blamed for any further attacks – a powerful threat at a time when the nation was expecting a second attack to come any moment and when reports of new anthrax letters were appearing daily. 

Congress and the Administration acted without any careful or systematic effort to determine whether weaknesses in our surveillance laws had contributed to the attacks, or whether the changes they were making would help prevent further attacks.  Indeed, many of the act's provisions have nothing at all to do with terrorism.

The Patriot Act increases the government's power to spy in four areas

The Patriot Act increases the governments surveillance powers in four areas:

1. Records searches.  It expands the government's ability to look at records on an individual's activity being held by a third parties. (Section 215) 

2. Secret searches.  It expands the government's ability to search private property without notice to the owner. (Section 213) 

3. Intelligence searches.  It expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information (Section 218). 

4. "Trap and trace" searches.  It expands another Fourth Amendment exception for spying that collects "addressing" information about the origin and destination of communications, as opposed to the content (Section 214).

1.  Expanded access to personal records held by third parties

One of the most significant provisions of the Patriot Act makes it far easier for the authorities to gain access to records of citizens' activities being held by a third party.  At a time when computerization is leading to the creation of more and more such records, Section 215 of the Patriot Act allows the FBI to force anyone at all – including doctors, libraries, bookstores, universities, and Internet service providers – to turn over records on their clients or customers.

Unchecked power The result is unchecked government power to rifle through individuals' financial records, medical histories, Internet usage, bookstore purchases, library usage, travel patterns, or any other activity that leaves a record.  Making matters worse:

· The government no longer has to show evidence that the subjects of search orders are an "agent of a foreign power," a requirement that previously protected Americans against abuse of this authority. 

· The FBI does not even have to show a reasonable suspicion that the records are related to criminal activity, much less the requirement for "probable cause" that is listed in the Fourth Amendment to the Constitution.  All the government needs to do is make the broad assertion that the request is related to an ongoing terrorism or foreign intelligence investigation. 

· Judicial oversight of these new powers is essentially non-existent.  The government must only certify to a judge – with no need for evidence or proof – that such a search meets the statute's broad criteria, and the judge does not even have the authority to reject the application. 

· Surveillance orders can be based in part on a person's First Amendment activities, such as the books they read, the Web sites they visit, or a letter to the editor they have written.  

· A person or organization forced to turn over records is prohibited from disclosing the search to anyone.  As a result of this gag order, the subjects of surveillance never even find out that their personal records have been examined by the government.  That undercuts an important check and balance on this power: the ability of individuals to challenge illegitimate searches. 

	The law before the Patriot Act	The law under the Patriot Act
When can the Patriot Act be used?	To gather foreign intelligence or investigate international terrorism	To gather foreign intelligence or protect against international terrorism
What can the FBI demand be turned over?	"records"	"any tangible things (including books, records, papers, documents, and other items)"
Who can they demand information about?	Only people who the FBI has evidence are an "agent of a foreign power"	Anyone
Who can they demand it from?	Only common carriers, public accommodation facilities, physical storage facilities, or vehicle rental facilities	Any entity (including bookstores and libraries)

 

Why the Patriot Act's expansion of records searches is unconstitutional Section 215 of the Patriot Act violates the Constitution in several ways.  It:

· Violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.   

· Violates the First Amendment's guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy. 

· Violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech. 

· Violates the Fourth Amendmentby failing to provide notice – even after the fact – to persons whose privacy has been compromised.  Notice is also a key element of due process, which is guaranteed by the Fifth Amendment.

2. More secret searches

For centuries, common law has required that the government can't go into your property without telling you, and must therefore give you notice before it executes a search.   That "knock and announce" principle has long been recognized as a part of the Fourth Amendment to the Constitution. 

The Patriot Act, however, unconstitutionally amends the Federal Rules of Criminal Procedure to allow the government to conduct searches without notifying the subjects, at least until long after the search has been executed.  This means that the government can enter a house, apartment or office with a search warrant when the occupants are away, search through their property, take photographs, and in some cases even seize property – and not tell them until later. 

Notice is a crucial check on the government's power because it forces the authorities to operate in the open, and allows the subject of searches to protect their Fourth Amendment rights.  For example, it allows them to point out irregularities in a warrant, such as the fact that the police are at the wrong address, or that the scope of the warrant is being exceeded (for example, by rifling through dresser drawers in a search for a stolen car).  Search warrants often contain limits on what may be searched, but when the searching officers have complete and unsupervised discretion over a search, a property owner cannot defend his or her rights.

Finally, this new "sneak and peek" power can be applied as part of normal criminal investigations; it has nothing to do with fighting terrorism or collecting foreign intelligence. 

3. Expansion of the intelligence exception in wiretap law

Under the Patriot Act, the FBI can secretly conduct a physical search or wiretap on American citizens to obtain evidence of crime without proving probable cause, as the Fourth Amendment explicitly requires.

A 1978 law called the Foreign Intelligence Surveillance Act (FISA) created an exception to the Fourth Amendment's requirement for probable cause when the purpose of a wiretap or search was to gather foreign intelligence.  The rationale was that since the search was not conducted for the purpose of gathering evidence to put someone on trial, the standards could be loosened.  In a stark demonstration of why it can be dangerous to create exceptions to fundamental rights, however, the Patriot Act expanded this once-narrow exception to cover wiretaps and searches that DO collect evidence for regular domestic criminal cases.  FISA previously allowed searches only if the primary purpose was to gather foreign intelligence.  But the Patriot Act changes the law to allow searches when "a significant purpose" is intelligence.  That lets the government circumvent the Constitution's probable cause requirement even when its main goal is ordinary law enforcement.

The eagerness of many in law enforcement to dispense with the requirements of the Fourth Amendment was revealed in August 2002 by the secret court that oversees domestic intelligence spying (the "FISA Court").  Making public one of its opinions for the first time in history, the court revealed that it had rejected an attempt by the Bush Administration to allow criminal prosecutors to use intelligence warrants to evade the Fourth Amendment entirely.  The court also noted that agents applying for warrants had regularly filed false and misleading information.  That opinion is now on appeal. [link to FISA page]

4. Expansion of the "pen register" exception in wiretap law

Another exception to the normal requirement for probable cause in wiretap law is also expanded by the Patriot Act.  Years ago, when the law governing telephone wiretaps was written, a distinction was created between two types of surveillance.  The first allows surveillance of the content or meaning of a communication, and the second only allows monitoring of the transactional or addressing information attached to a communication. It is like the difference between reading the address printed on the outside of a letter, and reading the letter inside, or listening to a phone conversation and merely recording the phone numbers dialed and received.

Wiretaps limited to transactional or addressing information are known as "Pen register/trap and trace" searches (for the devices that were used on telephones to collect telephone numbers).  The requirements for getting a PR/TT warrant are essentially non-existent:  the FBI need not show probable cause or even reasonable suspicion of criminal activity.  It must only certify to a judge – without having to prove it – that such a warrant would be "relevant" to an ongoing criminal investigation. And the judge does not even have the authority to reject the application.

The Patriot Act broadens the pen register exception in two ways:

"Nationwide" pen register warrants Under the Patriot Act PR/TT orders issued by a judge are no longer valid only in that judge's jurisdiction, but can be made valid anywhere in the United States.  This "nationwide service" further marginalizes the role of the judiciary, because a judge cannot meaningfully monitor the extent to which his or her order is being used.  In addition, this provision authorizes the equivalent of a blank warrant: the court issues the order, and the law enforcement agent fills in the places to be searched. That is a direct violation of the Fourth Amendment's explicit requirement that warrants be written "particularly describing the place to be searched."

Pen register searches applied to the Internet The Patriot Act applies the distinction between transactional and content-oriented wiretaps to the Internet. The problem is that it takes the weak standards for access to transactional data and applies them to communications that are far more than addresses.  On an e-mail message, for example, law enforcement has interpreted the "header" of a message to be transactional information accessible with a PR/TT warrant.  But in addition to routing information, e-mail headers include the subject line, which is part of the substance of a communication – on a letter, for example, it would clearly be inside the envelope. 

The government also argues that the transactional data for Web surfing is a list of the URLs or Web site addresses that a person visits.  For example, it might record the fact that they visited " www.aclu.org" at 1:15 in the afternoon, and then skipped over to " www.fbi.gov" at 1:30.  This claim that URLs are just addressing data breaks down in two different ways:

· Web addresses are rich and revealing content.  The URLs or "addresses" of the Web pages we read are not really addresses, they are the titles of documents that we download from the Internet.  When we "visit" a Web page what we are really doing is downloading that page from the Internet onto our computer, where it is displayed.  Therefore, the list of URLs that we visit during a Web session is really a list of the documents we have downloaded – no different from a list of electronic books we might have purchased online.  That is much richer information than a simple list of the people we have communicated with; it is intimate information that reveals who we are and what we are thinking about – much more like the content of a phone call than the number dialed.  After all, it is often said that reading is a "conversation" with the author. 

· Web addresses contain communications sent by a surfer.  URLs themselves often have content embedded within them.  A search on the Google search engine, for example, creates a page with a custom-generated URL that contains material that is clearly private content, such as:

          http://www.google.com/search?hl=en&lr=&ie=UTF-8&oe=UTF-8&q=sexual+orientation

Similarly, if I fill out an online form – to purchase goods or register my preferences, for example – those products and preferences will often be identified in the resulting URL.

The erosion of accountability

Attempts to find out how the new surveillance powers created by the Patriot Act were implemented during their first year were in vain.  In June 2002 the House Judiciary Committee demanded that the Department of Justice answer questions about how it was using its new authority.  The Bush/Ashcroft Justice Department essentially refused to describe how it was implementing the law; it left numerous substantial questions unanswered, and classified others without justification.  In short, not only has the Bush Administration undermined judicial oversight of government spying on citizens by pushing the Patriot Act into law, but it is also undermining another crucial check and balance on surveillance powers: accountability to Congress and the public. [cite to FOIA page]

Non-surveillance provisions

Although this fact sheet focuses on the direct surveillance provisions of the Patriot Act, citizens should be aware that the act also contains a number of other provisions.  The Act:

· Puts CIA back in business of spying on Americans. The Patriot Act gives the Director of Central Intelligence the power to identify domestic intelligence requirements.  That opens the door to the same abuses that took place in the 1970s and before, when the CIA engaged in widespread spying on protest groups and other Americans. 

· Creates a new crime of "domestic terrorism." The Patriot Act transforms protesters into terrorists if they engage in conduct that "involves acts dangerous to human life" to "influence the policy of a government by intimidation or coercion."  How long will it be before an ambitious or politically motivated prosecutor uses the statute to charge members of controversial activist groups like Operation Rescue or Greenpeace with terrorism?  Under the Patriot Act, providing lodging or assistance to such "terrorists" exposes a person to surveillance or prosecution.  Furthermore, the law gives the attorney general and the secretary of state the power to detain or deport any non-citizen who belongs to or donates money to one of these broadly defined "domestic terrorist" groups. 

· Allows for the indefinite detention of non-citizens.  The Patriot Act gives the attorney general unprecedented new power to determine the fate of immigrants.  The attorney general can order detention based on a certification that he or she has "reasonable grounds to believe" a non-citizen endangers national security.  Worse, if the foreigner does not have a country that will accept them, they can be detained indefinitely without trial. 

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Jurist Legal News & Commentary

The Patriot Act and Civil Liberties

Andrew Morgan

JULY 20, 2013 10:03:35 PM

Under the auspices of combating terror, the Bush administration took many steps following 9/11 that according to some have curtailed civil rights. Chief among these was the passage of the  USA Patriot Act of 2001 , which was signed by Bush on October 26, 2001. The original legislation contained 10 titles authorizing the government to conduct a wide range of activities aimed at preventing future terror attacks.

Title I contained provisions expanding funding for counterterrorism operations, allowing for military assistance in situations involving weapons of mass destruction, and expanding the president’s authority to seize the assets of any “foreign person, foreign organization, or foreign country” found to have participated in an attack on the US. Title II increased the authority of intelligence agencies to conduct surveillance against suspected terrorists. Title III dealt with bank rules, counterfeiting and smuggling, with the intention of preventing money laundering and the financing of terror organizations. Title IV enhanced security on the US-Canadian border, prevented people who had been involved with organizations endorsing acts of terrorism from entering the US and requiring the detention of any foreign citizen in the US who is engaged in activities threatening national security. Title V authorized the use of National Security Letters requiring communications companies to comply with requests for subscriber information and billing records. Title VI provided aid to the families of police and firefighters killed during the 9/11 attacks. Title VII addressed information sharing intended to counter terror activities taking place across more than one jurisdiction. Title VIII addressed attacks on public transit systems, expanded the reach of prohibitions on biological weapons and criminalized the harboring or concealment of a person suspected of committing an act of terrorism. Title IX gave the head of the CIA increased responsibility and authority over foreign intelligence information. Title X contained miscellaneous provisions dealing with charity fraud, providing assistance to first responders and authorizing funds to the Drug Enforcement Agency to conduct police training in south and central Asia. Many of these provisions were originally set to expire at the end of 2005. However, at the urging of the Bush administration, Congress  passed legislation extending  most of these expiring provisions, which was  signed  by Bush in early 2006, with some being  extended yet again in 2011 .

The Patriot Act has been the cause of significant controversy since its passage. Among its earliest and most vocal critics has been the American Civil Liberties Union (ACLU), which has brought several lawsuits challenging the constitutionality of the legislation. In 2004, a judge for the US District Court for the Southern District of New York  ruled  that the section of the Patriot Act allowing authorities to demand financial records from companies in terrorism investigations was unconstitutional. The court concluded that the section bars any effective judicial challenge because the government does not need to show a compelling need for the information, and the act does not provide process for challenges to police action.

One of the most significant cases brought by civil rights groups, however, was  Holder v. Humanitarian Law Project . In 2005, a judge for the US District Court for the Central District of California  ruled  that the provision of the act forbidding assistance to known terrorist organizations was overly vague, in violation of a 2004 ruling on the same provision. The lawsuit was filed by the Center for Constitutional Rights, which expressed concern about the possibility of the act being used to punish humanitarian aid workers in Sri Lanka or Turkey. This case was eventually  heard  by the US Supreme Court in June 2010. The court  ruled  6-3 to uphold the constitutionality of the material support ban. The court held that it did not violate plaintiffs’ First Amendment rights to free speech and association, nor was it unconstitutionally vague in violation of the Fifth Amendment. In support of the Fifth Amendment argument, the plaintiffs had alleged that the statute’s prohibition of particular types of material support, such as training and expert advice, was unconstitutionally vague. In rejecting this, the court found that the terms of the list were not like terms that had been struck down previously by the court for having subjective and ambiguous meanings. In rejecting the plaintiffs’ First Amendment claims, the court found that the statute did not criminalize the mere association with groups designated as terrorist organizations, and that even though in some instances the law interfered with free speech, this was “carefully drawn” to cover “an urgent objective of the highest order,” the combating of terrorism.

In 2005, the ACLU  filed suit  in the US District Court for the District of Connecticut against US Attorney General Alberto Gonzales and FBI Director Robert Mueller challenging the constitutionality of the government’s use of National Security Letters, which allow the FBI to demand a wide range of personal records of library patrons, including library records and the identities of public computer users, without suspecting the library user of any wrongdoing and preventing anyone in receipt of the subpoena from ever stating that the FBI made the demand. The federal court  lifted the gag order , only to be overturned on appeal in the US Court of Appeals for the Second Circuit. Later, US Supreme Court Justice Ruth Bader Ginsburg  rejected an emergency appeal  seeking to overturn appellate decision.

In March 2006,  Bush signed legislation renewing the Patriot Act , making several sunsetting provisions permanent, extending two provisions until 2009, and incorporating a number of new rights protections. Bush approved two separate bills: the  Patriot Act Improvement and Reauthorization Act of 2005  and the  Patriot Act Additional Reauthorizing Amendments Act of 2006 , a series of amendments to the renewal legislation reflecting a compromise agreement to incorporate more civil liberties protections. Prior to reauthorization, JURIST Guest Columnist  <a rel='nofollow'