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 governments surveillance powers in four
areas
The Patriot Act
increases the governments surveillance powers in four
areas:
- 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)
- Secret searches. It
expands the government's ability to search private property
without notice to the owner. (Section 213)
- Intelligence
searches. It expands a narrow exception to the Fourth
Amendment that had been created for the collection of
foreign intelligence information (Section 218).
- "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.
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.
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.
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.