Surveillance Under the USA PATRIOT Act (ACLU)

Surveillance
Under the USA PATRIOT Act (ACLU)


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:

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+orient...

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.