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A Guide to the Patriot Act, Part 1
Should you be scared of the Patriot Act?

By Dahlia Lithwick and Julia Turner
Posted Monday, Sept. 8, 2003, at 8:06 AM PT

What's hot for fall of 2003?

Well, the USA Patriot Act, for one thing. Although it passed in Congress almost without dissent in the aftermath of Sept. 11, it's suddenly being revisited, and this time around some of the folks holding opinions have actually read the thing. Among its detractors are 152 communities, including several major cities and three states, that have now passed resolutions denouncing the Patriot Act as an assault on civil liberties. More than one member of Congress has introduced legislation taking the teeth out of its most invasive provisions. And in a huge shock to the Justice Department, in July the so-called "Otter Amendment"—which de-funded the act's "sneak-and-peek" provision—passed in the House by a vote of 309-118. Introduced by a conservative Republican congressman from Idaho, C.L. "Butch" Otter, the amendment revealed the extent to which the Patriot Act engenders jitters across the political spectrum. Then there are the lawsuits, including one filed recently by the ACLU, urging the court to invalidate provisions of the act that threaten privacy or due process. All these reforms are wending their way through the system and the national consciousness as Americans start to take a sober second look at what the act really unleashed.

On the other hand, there's the John Ashcroft "Patriot Rocks" concert tour, launched last month, which has him visiting 18 cities and talking up the act to local law enforcement officials. The DOJ also unloosed a new Web site last month, designed to shore up support for the act. Ashcroft contends that had the Patriot Act been in place earlier, 9/11 wouldn't have happened and that absent a Patriot Act, the country may have seen more 9/11s over the past two years—a double-double negative that's unprovable, but enough to scare you witless. There have also been a raft of op-eds and articles—some evidently written by Ashcroft's U.S. attorneys at knifepoint—simultaneously making the point that the act has staved off unspeakable acts of terror while maintaining that it made only tiny infinitesimal changes to the existing laws.

Part of the impetus for all the new activity is that some of the really great bits of the act are set to sunset in 2005, and some Republican senators are planning to introduce legislation to repeal the sunset provisions altogether. Copies of "Patriot II"—the act that was intended to follow Patriot and grant the government even broader powers—were leaked to the press last winter, and while the ensuing ruckus ensured that Patriot II is dead, much of it will evidently rise again this fall in the guise of the VICTORY Act, Orrin Hatch's attempt to deploy Patriot powers in the war on drugs. One of the reasons that Patriot is fighting for its life, then, is so that its creepy progeny may someday live as well.

How bad is Patriot, really? Hard to tell. The ACLU, in a new fact sheet challenging the DOJ Web site, wants you to believe that the act threatens our most basic civil liberties. Ashcroft and his roadies call the changes in law "modest and incremental." Since almost nobody has read the legislation, much of what we think we know about it comes third-hand and spun. Both advocates and opponents are guilty of fear-mongering and distortion in some instances.

The truth of the matter seems to be that while some portions of the Patriot Act are truly radical, others are benign. Parts of the act formalize and regulate government conduct that was unregulated—and potentially even more terrifying—before. Other parts clearly expand government powers and allow it to spy on ordinary citizens in new ways. But what is most frightening about the act is exacerbated by the lack of government candor in describing its implementation. FOIA requests have been half-answered, queries from the judiciary committee are blown off or classified. In the absence of any knowledge about how the act has been used, one isn't wrong to fear it in the abstract—to worry about its potential, since that is all we can know.

Ashcroft and his supporters on the stump cite a July 31 Fox News/Opinion Dynamics Poll showing that 91 percent of registered voters say the act had not affected their civil liberties. One follow-up question for them: How could they know?

If you haven't read all 300-plus pages of the legislation by now, you should. If you can't, in the following four-part series, Slate has attempted to summarize and synthesize the most controversial portions of the act so you can decide for yourself whether you want Patriot, and the Patriots that may follow, to be a part of your world. Part 1 tackles Section 215, the law dealing with private records. Part 2 will address changes to the Foreign Intelligence Surveillance Act, or FISA, and "sneak and peek" warrants. Part 3 will discuss new electronic surveillance, and Part 4 will discuss miscellaneous provisions, including alien detentions.

Section 215, aka "Attack of the Angry Librarians"

Section 215 is one of the surprising lightning rods of the Patriot Act, engendering more protest, lawsuits, and congressional amendments than any other. In part this is because this section authorizes the government to march into a library and demand a list of everyone who's ever checked out a copy of My Secret Garden but also because those librarians are tough.

What it does: Section 215 modifies the rules on records searches. Post-Patriot Act, third-party holders of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without your knowledge or consent, providing the government says it's trying to protect against terrorism.

The law before and how it changed: Previously the government needed at least a warrant and probable cause to access private records. The Fourth Amendment, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and case law provided that if the state wished to search you, it needed to show probable cause that a crime had been committed and to obtain a warrant from a neutral judge. Under FISA—the 1978 act authorizing warrantless surveillance so long as the primary purpose was to obtain foreign intelligence information—that was somewhat eroded, but there remained judicial oversight. And under FISA, records could be sought only "for purposes of conducting foreign intelligence" and the target "linked to foreign espionage" and an "agent of a foreign power." Now the FBI needs only to certify to a FISA judge—(no need for evidence or probable cause) that the search protects against terrorism. The judge has no authority to reject this application. DOJ calls this "seeking a court order," but it's much closer to a rubber stamp. Also, now the target of a search needn't be a terror suspect herself, so long as the government's purpose is "an authorized investigation ... to protect against international terrorism."

Downplaying the extent of these changes, the DOJ argued to Congress that 215 is no big deal, since grand juries could always subpoena private records in the past. The difference they don't acknowledge is that investigators may now do so secretly, and these orders cannot be contested in court. While the new DOJ Web site asserts that searches under 215 are limited to "business records," the act on its face allows scrutiny of "any tangible thing" including books, records, papers, documents, and anything else. The site also says U.S. citizens may not be subject to search, but the act does not differentiate. How can it, when a library or doctor's office is simply asked to produce a list of names? And here is where the Justice Department hedges: It claims that a citizen cannot be searched "solely on the basis of activities protected by the First Amendment to the Constitution." That means you can't have your records searched solely because you wrote an article criticizing the Patriot Act. But if you are originally from India and write that article, well, that's not "solely" anymore is it? To be sure, the ACLU is doing a bit of fearmongering when it says the DOJ can rifle through your records if they don't like what you're reading. If you're a U.S. citizen and not otherwise suspicious, you're probably safe, so long as all you do is read.

When the judiciary committee, inquiring into the civil liberties implications of Patriot, asked about 215, the DOJ said in July 2002: "Such an order could conceivably be served on a public library, bookstore, or newspaper, although it is unlikely that such entities maintain those types of records. If the FBI were authorized to obtain the information the more appropriate tool for requesting electronic communication transactional records would be a National Security Letter." But as we will explain in Part 4, the government's NSL authority was also beefed up by the Patriot Act. In other words, the government may simply have a more effective means of conducting warrantless searches than the one everyone's riled up about.

How it's been implemented: The DOJ is playing this one particularly close to the vest. The act itself mandates semiannual reporting by the attorney general to Congress, but the only thing he must report is the number of applications sought and granted. Not very helpful unless that number is zero …

When asked by the House Committee on the Judiciary to detail whether and how many times Section 215 has been used "to obtain records from a public library, bookstore, or newspaper," the DOJ said it would send classified answers to the House Permanent Select Committee on Intelligence. The judiciary committee had what it called "reasonable limited access" to those responses, and it reported in October 2002 that its review had "not given any rise to concern that the authority is being misused or abused."

Wanting to learn more, the ACLU and some other civil rights groups filed a FOIA request, arguing that the DOJ was classifying its answers unnecessarily. But this May, a federal judge in U.S. district court in Washington ruled that the DOJ had the right to keep the specifics hush-hush under FOIA's national security exemption. The next day, at a judiciary committee hearing, Assistant Attorney General Viet Dinh did throw a bone to librarians, noting that in "an informal survey of the field offices," Justice learned "that libraries have been contacted approximately 50 times, based on articulable suspicion or voluntary calls from librarians regarding suspicious activity." He noted that most such visits were in the context of ordinary criminal investigations and did not rely on the powers granted by Section 215.* He did not give specifics on searches of any other establishments.

Independent attempts to chronicle the frequency of records searches have proved inconclusive. Within months after Sept. 11, federal or local officials visited nearly 10 percent of the nation's public libraries "seeking Sept. 11-related information about patron reading habits," according to a University of Illinois survey. But since librarians are gagged under the act, it's not clear that these reports are accurate. In any event, the same study suggests that about 13.8 percent of the nation's libraries received similar requests in the year before Sept. 11, so it's impossible to say that the problem was exacerbated by the new law.

Would you know if Section 215 had been used on you? Nope. The person made to turn over the records is gagged and cannot disclose the search to anyone.

Sunsets in 2005: Yes.

Prognosis: The first lawsuit against the Patriot Act was filed by the ACLU on July 30 this year, targeting Section 215. The suit has six mostly Arab and Muslim American groups as plaintiffs. Their claim is that 215 violates the Constitution and "vastly expands the power of the [FBI] to obtain records and other 'tangible things' of people not suspected of criminal activity."

In Congress, Rep. Bernard Sanders has proposed the Freedom to Read Protection Act to repeal provisions that subvert library patrons' privacy, and in July 2003 Sens. Lisa Murkowski and Ron Wyden introduced the Protecting the Rights of Individuals Act, requiring FBI agents to convince a judge of the merits of their suspicions before obtaining an individual's medical or Internet records. Similarly, Sen. Russ Feingold's Library, Bookseller and Personal Records Privacy Act would allow FBI access to business records pertaining to suspected terrorists or spies only. Feingold's bill would restore the pre-Patriot requirement that the FBI make a factual, individualized showing that the records sought pertain to a specific suspected terrorist.

Enough to get you through a cocktail party: 215 does extend FBI power to conduct essentially warrantless records searches, especially on people who are not themselves terror suspects, with little or no judicial oversight. The government sees this as an incremental change in the law, but the lack of meaningful judicial oversight and expanded scope of possible suspects is pretty dramatic.

Correction, Sept. 7, 2003: This article originally neglected to note that most of the 50 library visits the Department of Justice reported to Congress occurred in the course of ordinary criminal investigations and did not rely on the powers granted by Section 215. (Return to corrected sentence.)

A Guide to the Patriot Act, Part 2
Should you be scared of the Patriot Act?

By Dahlia Lithwick and Julia Turner
Posted Tuesday, Sept. 9, 2003, at 3:30 PM PT

This is the second of a 4-part series about what's really in the USA Patriot Act. (Read Part 1 here.)

Section 218 aka "FISA: It's everywhere you don't want to be"

Section 218 amends the Foreign Intelligence Surveillance Act, a "bargain" struck in 1978 wherein the usual requirements for a police search—probable cause to believe a criminal act had occurred and a warrant—would be unnecessary in a teeny, tiny number of cases. That teeny, tiny number of cases just expanded dramatically.

What it does: Secret searches can now be authorized by a secret court without public knowledge or Department of Justice accountability, so long as the government can allege there is any foreign intelligence basis for the search.

The law before and how it changed: In 1978 the Foreign Intelligence Surveillance Act created an exception to the Fourth Amendment's "probable cause requirement" for physical searches, wiretaps, and subpoenas of business records. FISA created a secret court that granted search warrants so long as a pleading before a closed court asserted that the "primary purpose" of the search or wire tap was to gather foreign intelligence. The warrant needn't be based on a suspicion of criminal behavior. But the target had to be "linked to foreign espionage." In theory, American citizens were safe unless they were suspected "agents of a foreign power." A good indicator of the objectivity of the FISA court: It rejected only five of the 14,000 warrant applications it received before 2001, although it recently became clear that many of those warrants were based on false allegations. The FISA court is not supposed to second-guess the government. These are not adversarial proceedings. Nor does the FISA court maintain ongoing oversight over the surveillance. Patriot amends FISA to allow searches when "a significant purpose" is intelligence-gathering. Not "primary," but significant. Now you can be subject to secret searches authorized by a secret court so long as there is any foreign intelligence component (and increasingly, drug-related offenses are deemed to have a terrorist component). Moreover, the party to be searched need not be connected to foreign espionage anymore. It's enough that the government may merely learn something about a terror investigation. Section 207 of the act lengthens the durations of FISA warrants to as long as 120 days in some cases. Finally, under the pre-Patriot FISA and Title III, fruits of FISA search warrants could be used only for information-gathering, not for prosecution. But now intelligence information obtained using FISA's lower standards for probable cause can be passed along for prosecution purposes.

How it's been implemented: Since Patriot expanded the small number of cases in which a FISA court might authorize a search warrant, the number of warrants issued has, unsurprisingly, risen slightly. The FISA court approved 1,228 applications for warrants in 2002, up from 934 in 2001 and 1,012 in 2000. (The number of warrants issued was consistently below 1,000 throughout the '90s.) When asked by the House Judiciary Committee in 2002 how many of these warrants met the "significant purpose" standard but would have failed to meet the "primary purpose" standard, the DOJ hedged, saying they'd kept no statistics on the distinction.

But the DOJ consistently argues that the principal impact of Section 218 lies not in the expanded applicability of the warrants, but in the way it has facilitated intelligence sharing. As the DOJ paints it, the pre-Patriot era was an icy one; criminal prosecutors and intelligence experts toiled away, rarely communicating with one another. There were protocols for sharing some information, but for the most part, "the metaphorical 'wall' between the intelligence community and federal law enforcement often precluded effective and indeed vital information sharing, perversely creating higher barriers in the most serious cases," as the DOJ told the House Judiciary Committee in May. Making no mention of the possible benefits of this divide—such as prohibiting prosecutors from building their case on warrantless searches—the DOJ crowed in the May report that Sections 218 and 504(a) brought this "artificial dichotomy" to an end, citing the February indictment of Sami Al-Arian—the University of South Florida professor alleged to be a leader of a Palestinian Islamic Jihad cell—as a prime example of what can be achieved when intelligence types and law enforcement officials log a few hours on a ropes course and really start working together. The allegations in the Al-Arian indictment were based on information collected pursuant to FISA but before the passage of Patriot. In those days, FISA protocols allowed for some information sharing. But criminal prosecutors and investigators were denied "full access to information obtained through FISA," according to the DOJ, and criminal and intelligence personnel were prevented "from coordinating their parallel investigations." Post-Patriot, once the wall was down, the Tampa prosecutors accessed information "which existed in the FBI's intelligence—but not criminal—files" and used it "to document the decade-long conspiracy that is alleged."

Eager to find similar prosecutorial applications for information gleaned in terrorism and intelligence investigations, Attorney General John Ashcroft asked U.S. Attorneys after Sept. 11 to review almost 4,500 intelligence files, and the DOJ reported to the House Judiciary Committee in May that "evidence or information from this review has been incorporated in numerous cases." Again, this allows prosecutors free range over materials obtained without a traditional warrant.

Would you know if Section 218 had been used on you? Only if you were later prosecuted using information gathered pursuant to a FISA warrant. Then you'd have the opportunity to try to suppress that evidence in a regular court proceeding.

Sunsets in 2005: Yes.

Prognosis: Last year, in a dramatic refusal to grant a DOJ request, the FISA court declined to implement the Patriot provision allowing for information sharing between prosecutors and investigators. But in November 2002, the secret FISA appeals court, which had never before been convened, found that the lower FISA court had erred in refusing to lower the wall between prosecutors and investigators. Only the government had been represented at oral argument, and only the government has the right of appeal under the law.

Enough to get you through a cocktail party: FISA was a constitutional "bargain" struck by a Congress concerned that the Executive branch needed some special leeway for foreign intelligence surveillance without undermining American criminal procedures as laid out in the Constitution. Broadening FISA so that it may be used against Americans, with searches initiated by the prosecutorial arm of the government, against ordinary criminals, subverts that bargain.

Section 213 aka "Sneak and Peek-a-boo"

Section 213 is another extremely controversial part of the Patriot Act, engendering protest from across the political spectrum. By allowing the state to rummage first and let you know later (sometimes much later), the act upends the traditional requirement that the state advise you in advance that you are being searched.

What it does: "Sneak and Peek" warrants extend sneak-and-peek authority from FISA searches to any criminal search. This allows for secret searches of your home and property without prior notice.

The law before and how it changed: Police used to have to "knock and announce" their intention of searching before executing any warrant. This gave the person being searched advance notice and a clear picture of what authorities were looking for. In 1978 FISA changed the law, allowing the FISA court to authorize sneak-and-peek warrants but only in cases where "foreign powers or their agents" were suspected of terrorism. The Patriot Act expands the use of these warrants if "immediate notification of the execution of the warrant may have an adverse result." Under Patriot, such warrants are no longer limited to terrorism investigations but now extend to include any criminal investigation at all. Moreover, the act requires only that notice be given of the search or wiretap "within a reasonable period of its execution," which may be extended by the court for "good cause shown."

Supporters of the act argue that courts have always allowed officers to delay notification of a warrant if knowledge of the warrant would risk witness intimidation, the destruction of evidence, the impossibility of prosecution, or flight of the suspect. And the Supreme Court has held that these warrants are constitutional. Ashcroft also contends that the act limits the use of sneak-and-peek warrants to specific circumstances, so that its use might actually decline. But it's undeniable that the government can almost always argue that later notification would be helpful. And because the standard under 213 is low, sneak-and-peeks will be authorized anytime notification jeopardizes an investigation. Since few criminal suspects really help the state during searches, this looks to be an exception that might swallow the rule. And ultimately, the best check against the police ransacking your property indiscriminately (rather than sticking to the particulars of their warrant) continues to be your glowering presence nearby.

How it's been implemented: The Department of Justice reported to the House Judiciary committee in May that it had "requested a judicial order delaying notice of the execution of a warrant under section 213 forty-seven times, and the courts have granted every request." Courts can also permit seizure of tangible property if there's "reasonable necessity" for doing so; they've granted seizure requests on 14 occasions and rejected only one request, ruling that "photos of the relevant items would be sufficient."

The delays in notification have been of varying durations, some as short as one day, some as long as 90. The DOJ can request extensions of these periods repeatedly and indefinitely, and it has so far done so 248 times. Some courts have also "permitted delays of unspecified duration lasting until the indictment was unsealed," according to the DOJ's report.

Would you know if Section 213 had been used on you? Eventually—they do still have to tell you that you've been searched, although the law provides that the period of time may be extended indefinitely for good cause.

Sunsets in 2005: No.

Prognosis: In July 2003 the "Otter Amendment," which would de-fund federal power to conduct sneak-and-peeks, passed the House by a vote of 309-118 The issue has yet to be taken up by the Senate, but the administration threatens to veto it should it pass.

In July 2003, Sens. Lisa Murkowski and Ron Wyden introduced a bill, Protecting the Rights of Individuals Act, that would provide, among other things, that sneak-and-peek authority only be available in the limited number of cases enumerated above (risk of flight, destruction of evidence, etc.). The act would also build in a reporting requirement for the attorney general.

Enough to get you through a cocktail party: Sneak-and-peek warrants are neither radical nor per se unconstitutional. However, what was a very limited exception for their use has now grown rather substantially. It's hard to think of a situation in which a criminal investigation wouldn't be better served by announcing the search or wiretap after the fact. And if that's the new rule, "knock and announce" is dead.

A Guide to the Patriot Act, Part 3
Should you be scared of the Patriot Act?

By Dahlia Lithwick and Julia Turner
Posted Wednesday, Sept. 10, 2003, at 5:01 PM PT

This is the third in a four-part series about what's really in the USA Patriot Act. Click here to read Part 1 and here to read Part 2.

Section 214, aka "Can I borrow a pen register?"

What it does: "Pen registers" ascertain phone numbers dialed from a suspect's telephone; "Trap and trace" devices monitor the source of all incoming calls. Neither reveals the content of communication. Patriot removes the warrant requirement for these taps so long as the government can certify that the information likely to be obtained is "relevant" to an ongoing investigation against international terrorism.

The law before and how it changed: Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, a traditional phone wiretap could be obtained on a showing of probable cause that one of an enumerated list of crimes had been committed. Warrants were valid for only 30 days, and the government needed to report back to the court. Under the 1978 Foreign Intelligence Surveillance Act the requirements for a wiretap order were more minimal: The FBI didn't need probable cause or even reasonable suspicion to install a tap, but only had to certify to a judge that information resulting from such a warrant would be "relevant" to an ongoing criminal investigation. Section 214 doesn't change this standard but broadens the reach—making the FISA pen register/trap-and-trace power available in both criminal and foreign intelligence investigations, so long as the government merely certifies that the information obtained would be "relevant to an ongoing investigation." The probable-cause requirement in criminal cases is gone. Courts may not inquire into the truthfulness of the allegations before authorizing a tap.

How it's been implemented: In July 2002 the attorney general's office told the House Committee on the Judiciary that the number of times the tools in Section 214 had been used against Americans was classified and would be provided only to intelligence committees. In August 2002 the DOJ also noted that 214's "streamlining" of the pen/trap request process "has made these less intrusive tools of FISA more reasonable tools of investigation and more available as alternatives to other tools of the Act." Not clear how that's supposed to be reassuring.

Would you know if Section 214 had been used on you? Only if the information obtained was someday used against you in a proceeding; otherwise it's kept secret.

Sunsets in 2005: Yes.

Prognosis: In July 2003 Sens. Lisa Murkowski and Ron Wyden introduced S 1552, the "Protecting the Rights of Individuals Act," which would toughen judicial review for some telephone and Internet monitoring. The bill requires the government to be more specific about targets of wiretaps obtained under the law.

Enough to get you through a cocktail party: While Patriot certainly lowers the standard for obtaining wiretaps to an assertion of mere "relevance" in an ongoing investigation, those standards were awfully low to begin with. It's hard to see how Patriot made life much worse than FISA.

Section 216, aka "Your friendly neighborhood Carnivore"

Section 216 clarifies that pen register/trap-and-trace authority applies to Internet surveillance. Until now, it was at the whim of judges and the Justice Department whether the rules for phone taps applied to the Internet as well.

What it does: Patriot changes the language that was drafted contemplating only telephonic surveillance to include Internet monitoring, specifically information about: "dialing, routing, and signaling." It also broadens such monitoring to any information "relevant to an ongoing criminal investigation."

The law before and how it changed: Before the Patriot Act, Internet surveillance by the feds was essentially unregulated. The availability of an Internet tap turned on whether a judge would apply phone tap rules to the Internet. While the act broadens the use of tapping devices from telephone numbers to Internet and e-mail origins, it actually sets up higher standards for the government to meet. For instance, wiretaps may not be used to intercept "the content" of Internet communications (although the act does not specify what "content" means, which worries civil libertarians).The provision requires that the feds report back on how the wiretap was used. However, warrants can now be sought for any suspected crimes, not merely for terrorism-related acts. Also, judges have no authority to reject these applications.

It was widely reported that the Patriot Act expressly authorized the use of "Carnivore"—the federal Internet surveillance tool. However, Patriot never mentions Carnivore, and the only section that implicates Carnivore requires that the government file a detailed report whenever it installs its own surveillance device on an ISP.

How it's been implemented: The DOJ says it has used the Patriot-amended pen/trap provisions to track the communications of a host of ne'er-do-wells. [The greatest-hits list it sent the House Judiciary Committee in May includes: "(1) terrorist conspirators, (2) at least one major drug distributor, (3) identity thieves who obtained victims' bank account information and stole the money, (4) a four-time murderer, and (5) a fugitive who fled on the eve of trial using a fake passport." They also say the new authority helped them investigate the murder of Daniel Pearl.]

In May 2002 the attorney general sent field offices a memo warning agents against "overcollection," the inadvertent collection of content when using a pen/trap device. The memo mandated that agents must use "reasonably available technology" to avoid capturing content. If content is accidentally captured "no affirmative investigative use may be made of that content"—"except in a rare case in order to prevent an immediate danger of death, serious physical injury, or harm to the national security." Asked at a May congressional hearing how the DOJ defines "content" when it comes to electronic communications, Assistant Attorney General Viet Dinh reported, "We consider non-content to be the 'to' and the 'from.' The subject line is content." Nice that they're paying attention, but it does appear that the DOJ acts as the only check on itself, here.

As for Carnivore, the DOJ reported in August 2002 that federal investigators had filed only two notices detailing the installation of surveillance devices on an ISP. Only one of the two was related to a terror investigation. Dinh noted in May that agents retain information about such installations—"including information relating to how it was used, what information was gathered by the device, and ultimately whether or not it was successful in gathering such information"—and make it available to the court that issued the warrant within 30 days.

Would you know if Section 216 had been used on you? Not unless you were someday prosecuted based on information obtained pursuant to this statute.

Sunsets in 2005: No.

Enough to get you through a cocktail party: Section 216 is one of the provisions that may actually protect privacy. By codifying wiretapping law as it's applied to the Internet, Patriot removes a lot of the ambiguity from the prior rules. But as the laundry list above suggests, Patriot authorized this surveillance for a lot more than the war on terror. Which seems a little opportunistic, no?

Section 206, aka "Here, Rover"

Section 206 authorizes roving wiretaps: taps specific to no single phone or computer but to every phone or computer the target may use. It doesn't get as much attention as it should. If the government decides to tap a computer at the UCLA library, every communication by every user can theoretically be intercepted.

What it does: Expands FISA to permit surveillance of any communications made to or by an intelligence target without specifying the particular phone line or computer to be monitored.

The law before and how it changed: Taps were formerly applicable only to specific phones. Under Patriot, the FISA court can authorize taps or intercepts on any phones or computers that the target may use. The foreign intelligence authorities can require anyone to help them wiretap. Previously, they could only serve such orders on common carriers, landlords, or other specified persons. Along with Section 220, which allows a judge to authorize national wiretaps rather than ones limited to her jurisdiction, this severely undercuts a judge's ability to monitor whether taps are being used appropriately and erodes the "particularity" requirement of the Fourth Amendment.

How it's been implemented: When asked in May to detail provisions of the Patriot Act that had helped federal authorities dismantle terrorist networks, the DOJ made no specific mention of section 206. (They also skipped 214.) That's slightly odd, since the DOJ has often used such open-ended questions to grandstand about renewing sunsetted provisions. The DOJ did tell the House Judiciary Committee in July 2002 that the number of roving wiretaps issued is classified, noting that we can "assure the committee that the Department's request for use of such authority … has been limited to those cases where the surveillance ordered by the Court would otherwise be, or would otherwise likely be, impossible." So, at least there's that.

Would you know if Section 206 had been used on you? Not unless the information was someday used to prosecute you.

Sunsets in 2005: Yes.

Enough to get you through a cocktail party: The vast expansion of warrant power is worrisome. The check on the use of wiretapping authority for government fishing expeditions was judicial oversight. Such oversight is impossible when taps are issued nationwide and to a range of phones and computers.

A Guide to the Patriot Act, Part 4
Should you be scared of the Patriot Act?

By Dahlia Lithwick and Julia Turner
Posted Thursday, Sept. 11, 2003, at 5:24 PM PT

Section 505, aka "National Insecurity-Complex Letters"

This section authorizes the attorney general or a delegate to compel holders of your personal records to turn them over to the government, simply by writing a "national security" letter. Section 505 has garnered a lot less national attention than Section 215—the library records section of the act—which may be why it is invoked a lot more often.

What it does: Section 505 authorizes the use of what's essentially an administrative subpoena of personal records. The subpoenas require no probable cause or judicial oversight.

The law before and how it changed: Before Patriot, these letters could only be issued against individuals who were reasonably suspected of espionage. But Patriot loosened the standard by allowing the letters to be used against anyone, including U.S. citizens, even if they themselves are not suspected of espionage or criminal activity. These letters may now be issued independently by FBI field offices, rather than by senior officials. And unlike Section 215 warrants, they are not subject to even perfunctory judicial review or oversight.

The records that can be obtained through the letters under Patriot include telephone logs, e-mail logs, certain financial and bank records, and credit reports, on the assertion that such information would be "relevant" to an ongoing terrorism investigation. They cannot be used in ordinary criminal investigations. Unlike 215, no court order—not even a rubber-stamped order—is required. Those forced to turn over records are gagged from disclosing the demand.

How it's been implemented: According to documents turned over to the American Civil Liberties Union as part of their FOIA lawsuit, the FBI issued enough national security letters since October 2001 to fill more than five pages of logs. What precisely those letters compelled is unknowable, since virtually every page of those logs were blacked out, ostensibly for security reasons. The government has refused to provide further information on how the letters were used.

A November 2001 memorandum prepared by FBI attorneys warned that the letters "must be used judiciously" to appease Congress, since they expire in 2005, along with other Patriot provisions.

Would you know if Section 505 had been used on you: Not unless some action was brought against you based on the information produced.

Sunsets in 2005: No.*

Prognosis: Sen. Barbara Boxer, D-Calif., introduced the Library and Bookseller Protection Act, S 1158, in May 2003, which exempts libraries and booksellers from having to produce records pursuant to National Security letters. The Protecting the Rights of Individuals Act, S 1552, introduced by Sens. Lisa Murkowski, R-Alaska,* and Ron Wyden, D-Ore., does the same thing.

Enough to get you through a cocktail party: While few Americans seem to be getting exercised over Section 505, it's actually a good deal scarier than 215—the angry librarian provision—in some ways. Why? Because there is no check on the attorney general's discretion, not even a toothless judge. Add to this the government's refusal to disclose how these letters have been used, and there are some grounds for paranoia over this provision.

Section 802, aka "Tree-Hugging Terrorists"

This section has received a lot of attention and is almost single-handedly responsible for alienating right-wing groups like the Eagle Forum, as well as fundamentalist Christians across the land. Why? Because it creates a new crime and could, critics say, be used someday to prosecute Operation Rescue protesters.

What it does: Section 802 creates a category of crime called "domestic terrorism," penalizing activities that "involve acts dangerous to human life that are a violation of the criminal laws of the United States," if the actor's intent is to "influence the policy of a government by intimidation or coercion."

The law before and how it changed: There was no law like this before.

How it's been implemented: The ACLU has conceded that despite the scary hypothetical applications, it knows of no abortion protester or environmental activist who has been prosecuted under the law.

Would you know if Section 802 had been used on you: You'd likely figure it out right quick as they were hauling you away in handcuffs.

Sunsets in 2005: Yes.

Prognosis: The Murkowski and Wyden Protecting the Rights of Individuals Act would narrow the definition of "terrorism," so the law's expanded enforcement tools could not be used against domestic political protesters.

Enough to get you through a cocktail party: The fears over this provision are almost entirely hypothetical. Maybe Greenpeace activists really are on the hook, but that sounds a bit overheated in light of the text of the act. And while fearmongers in the press have suggested that you can now be jailed for a bar fight, the statute requires both endangering of life and an intent to influence the government. This provision is more bark than bite.

Sections 411 and 412, aka "Alien and Sedition Acts"

It's important to note from the outset that virtually all of the administration's unprecedented abuse of aliens—the indefinite detentions, the blanket secrecy, the lack of charges, and the removal of aliens to secret military brigs—have happened absent any legislative authority. While some provisions of Patriot make it easier for the government to treat aliens poorly, Patriot in no way authorized the worst reported abuses.

What they do: Section 411 makes even unknowing association with terrorists a deportable offense. Section 412 allows the attorney general to order a brief detention of aliens without any prior showing or court ruling that the person is dangerous.

The law before and how it changed: 411 makes aliens deportable for associating, even unknowingly, with a "terrorist organization." 412 gives the attorney general new power to order detentions based on a certification that he has "reasonable grounds to believe" that a noncitizen endangers national security. No judicial review is provided except for habeas corpus—a most basic and unlikely avenue of appeal. And the attorney general may continue to hold the alien indefinitely. If an alien does not have a country willing to accept him, he may now be detained indefinitely without trial. Moreover, the act allows for aliens to be held for seven days without being charged with a crime. The act requires a biannual report to Congress but the report need not contain information including the names of those held, when they were seized, where they were detained, or the nature of the charges against them.

How it's been implemented: Sparingly. The DOJ noted in May that the INS has denied admission to all of three aliens (including one who was believed to be a money-launderer) on the security grounds expanded in Section 411. As for Section 412, it hadn't yet been used as of March.

Which is not to say that the INS hasn't detained, deported, or denied admission to bushels of aliens since Sept. 11. But it's generally a big old hassle to deport someone on "security-related" grounds like the ones expanded in Section 411. As the DOJ gingerly put it in May, "security-related grounds of removal may generate more litigation." Through March, every time the INS deported an alien it wasn't keen on, it did so on non-security-related grounds to expedite the removal. Still, the DOJ would like this sunsetted provision to stick around in case any terrorists show up with their visas in perfect order.

Would you know if Sections 411 and 412 had been used on you: Well, if you're one of those three excluded aliens, you're probably aware that you're not in the United States right now. Otherwise, it hasn't.

Sunsets in 2005: Yes for both.

Enough to get you through a cocktail party: These provisions, permitting possibly lengthy detentions based on little more than a John Ashcroft sniff test, would be far more disturbing if aliens weren't subject to far worse abuses at the hands of the administration.

Conclusion:

In studying and reporting on the most controversial aspects of the Patriot Act, we have attempted to be as evenhanded as possible. It bears repeating that the Bush administration has fostered a good deal of national anxiety by its simple refusal to release information allaying public fears about how the act is being implemented.

Immediately after Sept. 11, many Americans seemed to fall victim to an understandable fallacy: We believed that by surrendering our freedoms, we were buying national security. Slowly the haze of fear has cleared, and Americans have begun to demand that the freedoms we surrender correspond directly to national security. The parts of the Patriot Act that rankle most are those provisions that sweep normal criminal law enforcement under the looser procedural standards for fighting terror. It's important that the state be able to fight terror. No one disputes this. But it's equally important that the state not use the war on terror to gut the warrant requirement or undermine the First Amendment.

The best check on such encroachments should be a free and objective judiciary. But as we have noted several times in this series, many of the most disturbing Patriot provisions do away with judicial oversight altogether, while others permit judges to act as rubber stamps in ex parte proceedings—that is, hearings where only the government side is represented.

The next best check on such encroachments is public scrutiny, and, as we've suggested, that scrutiny is only beginning to be as demanding and impatient as it ought. But most Americans still do not believe that Patriot has in any way affected them. So it's worth noting that many of these provisions are used frequently—even if details are blacked out. Go back and look at the sections that ask whether you'd know if Patriot has been used against you. In most cases the answer is no.

We really can be safe without being afraid of our government. It simply requires that security measures be narrowly tailored to fit national security needs. Some parts of the USA Patriot Act meet this test. Some do not. And some are purely opportunistic. Before President Bush convinces Congress to "untie the hands of our law enforcement officials" by expanding the Patriot Act, as he proposed Wednesday, Americans need to begin a national conversation about which is which.

Correction, Sept. 12, 2003: Due to a copy-editing error, this piece originally and incorrectly said that Sen. Lisa Murkowski represents Arkansas. (Return to the corrected sentence.) July 21, 2004: In this article as originally published, Section 505 was said to sunset in 2005. In fact the provision does not sunset. Return to the corrected item.

http://www.eff.org/Privacy/Surveillance/Terrorism/PATRIOT/

The USA PATRIOT Act

The USA PATRIOT Act broadly expands law enforcement's surveillance and investigative powers and represents one of the most significant threats to civil liberties, privacy and democratic traditions in U.S. history.

What is PATRIOT?

The USA PATRIOT Act (officially the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) was quickly developed as anti-terrorism legislation in response to the September 11, 2001 attacks. The large and complex law received little Congressional oversight and debate, and was signed into law by President Bush Oct. 26, 2001.

PATRIOT gives sweeping anti-privacy powers to domestic law enforcement and international intelligence agencies and eliminates checks and balances that previously gave courts the opportunity to ensure that those powers were not abused. PATRIOT and follow-up legislation now in development threaten the basic rights of millions of Americans.

Why should I care?

Under PATRIOT, civil liberties, especially privacy rights, have taken a severe blow:

The law dramatically expands the ability of states and the Federal Government to conduct surveillance of American citizens. The Government can monitor an individual's web surfing records, use roving wiretaps to monitor phone calls made by individuals "proximate" to the primary person being tapped, access Internet Service Provider records, and monitor the private records of people involved in legitimate protests.

PATRIOT is not limited to terrorism. The Government can add samples to DNA databases for individuals convicted of "any crime of violence." Government spying on suspected computer trespassers (not just terrorist suspects) requires no court order. Wiretaps are now allowed for any suspected violation of the Computer Fraud and Abuse Act, offering possibilities for Government spying on any computer user.

Foreign and domestic intelligence agencies can more easily spy on Americans. Powers under the existing Foreign Intelligence Surveillance Act (FISA) have been broadened to allow for increased surveillance opportunities. FISA standards are lower than the constitutional standard applied by the courts in regular investigations. PATRIOT partially repeals legislation enacted in the 1970s that prohibited pervasive surveillance of Americans.

PATRIOT eliminates Government accountability. While PATRIOT freely eliminates privacy rights for individual Americans, it creates more secrecy for Government activities, making it extremely difficult to know about actions the Government is taking.

PATRIOT authorizes the use of "sneak and peek" search warrants in connection with any federal crime, including misdemeanors. A "sneak and peek" warrant authorizes law enforcement officers to enter private premises without the occupant's permission or knowledge and without informing the occupant that such a search was conducted.

The Department of Justice, with little input from Congress and the American people, is developing follow-on legislation - the Domestic Security Enhancement Act (nicknamed Patriot II) -- which would greatly expand PATRIOT's already sweeping powers.

http://en.wikipedia.org/wiki/USA_PATRIOT_A...the_PATRIOT_Act

This law provides for indefinite imprisonment without trial of non-U.S. citizens whom the Attorney General has determined to be a threat to national security. The government is not required to provide detainees with counsel, nor is it required to make any announcement or statement regarding the arrest. The law allows a wiretap to be issued against an individual instead of a specific telephone number. It permits law enforcement agencies to obtain a warrant and search a residence without immediately informing the occupants, if the Attorney General has determined this to be an issue of national security. The act also allows intelligence gathering at religious events. With a few exceptions, provisions of the act are due to expire on December 31, 2005.

There has been strong criticism of the act on the grounds that parts of it violate the Constitution and endanger civil liberties. The American Civil Liberties Union (ACLU) alleges that its search and detention provisions violate the Fourth Amendment. Some say that the act's secret warrants resemble the general warrants which were one reason the colonists fought the American Revolutionary War.

Critics also say the law was passed without serious review in a climate of fear, and that it represents a reactionary agenda that has little to do with the 9/11 attacks. They note that there were unsuccessful attempts to pass similar laws, such as the Methamphetamine Anti-Proliferation Act of 2000, long before 9/11.

Supporters of the law argue that terrorist acts may result in the loss of thousands or millions of lives, so waiting until after the fact to hunt the perpetrators down would be a deadly mistake. They admit that the law may result in some rights abuses, but argue that the most basic civil right is the right to live without perpetual fear. They further argue that, unless the Supreme Court rules otherwise, the law is constitutional. However, since the Supreme Court does not seek out laws to countermand, the constitutionality of the Patriot Act must remain a question until someone brings the dispute before the court.

All of the candidates for the Democratic Party nomination for the U.S. presidential election, 2004 have criticized Attorney General John Ashcroft's use of the act. Among them, Ohio Congressman Dennis J. Kucinich voted against its passage in the House of Representatives.

Four states (Hawaii, Alaska, Maine and Vermont) and 331 cities (including New York City, Los Angeles, Dallas, Chicago, Eugene, Oregon, Philadelphia, Pennsylvania and Cambridge, Massachusetts) have passed resolutions condemning the USA PATRIOT Act for attacking civil liberties. Arcata, California is the first city to pass an ordinance that bars city employees (including police and librarians) from assisting or cooperating with any federal investigations under the USA PATRIOT Act that would violate civil liberties. The Bill of Rights Defense Committee is helping coordinate local efforts to pass resolutions. Pundits question the validity of these ordinances, noting that under the Constitution's supremacy clause, federal law overrides state and local laws.

The act is 342 pages long and amends over fifteen statutes. The following summarizes the new powers granted by the law:
Sec. 104: Allows the Department of Defense to share information with the Department of Justice during "emergency situations" that involve "weapons of mass destruction."
Sec. 106: Allows the President of the United States to seize property belonging to foreign nationals connected with terrorism. If the seizure is based on classified evidence, then the judge reviewing the case cannot share that evidence with the defense attorneys.
Sec. 203: Allows information collected by the police or presented to a Federal grand jury to be shared with intelligence agencies. This information sharing is limited to evidence of terrorist activities. (Section 203(a)&(B) doesn't sunset/expire).
Sec. 206: Allows a wiretap to be granted against an individual, instead of a particular phone. Previously, for example, if a person had a cell phone, a home phone, and an office phone, the government had to obtain separate warrants on each.
Sec. 207: Increases the duration of a wiretap "permitted for non-U.S. persons who are agents of a foreign power."
Sec. 208: Increases (from seven to 11) the number of district court judges designated to hear applications for and grant orders approving electronic surveillance. (Section 208 doesn't sunset/expire).
Sec. 209: Permits the seizure of voice-mail messages under a warrant.
Sec. 213: Allows FBI agents to conduct a search of a business or a place without notifying the owner that the search has been conducted until later. The agents still need a warrant, and only a Federal district court judge can issue this type of warrant. Further, this type of warrant may only be issued if notifying the owner of the search would result in "adverse consequences." (Section 213 doesn't sunset/expire).
Sec. 216: "PEN/Trap Authority." Allows law-enforcement in ordinary criminal cases to get a warrant to track which websites a person visits and collect general information about the emails a person sends and receives. Law-enforcement doesn't have to prove the need; the judge only has to determine that law-enforcement has "certified" that this relates to an ongoing investigation. In other words, the judge cannot reject an application based on the merits. Furthermore, people not-named in the warrant can be subject to the warrant if law-enforcement "certifies" that the warrant was meant to apply to those unnamed people. (Section 216 doesn't sunset/expire).
Sec. 217: Allows the government to intercept the electronic communication of a computer trespasser, i.e., a hacker, without a court order in certain circumstances if the owner of the hacked computer consents.
Sec. 402: Triples the number of Border Patrol, Customs Service, and INS personnel stationed along the U.S. borders.
Sec. 411: Expands the definition of a terrorist for the purpose of the act. Summary of Sec. 411 of the USA PATRIOT Act.
Before passage, only members of the groups designated as terrorist organizations by the State Department could be denied entry to or deported from the United States
The law extends those actions to any foreigner who publicly endorses terrorist activity, belongs to a group that does, or provides support to a group that does.
The definition of "terrorist activity" is extended to include any foreigner who uses "dangerous devices" or raises money for a terrorist group, if that person knows or reasonably should have known that the group is engaged in terrorism
Sec. 412: Extends the power of the attorney general to detain aliens.
The attorney general can order the detention of any aliens if he certifies that he has "reasonable grounds to believe" involvement in terrorism or activity that poses a danger to national security. He does not need to explain his reasoning or show evidence.
Criminal or immigration violation charges have to be brought against such people within seven days, but they can be held indefinitely.
However, they retain their right to petition the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia, or any district court with jurisdiction to entertain a habeas corpus petition.
Sec. 416: Directs the Attorney General to implement fully and expand the foreign student monitoring program to include other approved educational institutions like air flight, language training, or vocational schools.
Sec. 503: Requires DNA samples of convicted terrorists to be collected and added to a DNA database of violent convicts.
Sec. 805(a)(2): Expands the definition of 'material support' to foreign terrorist organizations to include 'expert advice and assistance'. According to an article in Reason magazine, this section has been cited by Assistant US Attorney Christopher Morvillo and by Assistant US Attorney Robin Baker as grounds for prosecuting a US lawyer who defends a terror suspect. Critics suggest that this amounts to state intimidation of defence counsel, likely to undermine the constitutionally protected due process right to counsel.
Sec. 814: allows wiretaps for suspected violations of the Computer Fraud and Abuse Act, including anyone suspected of "exceeding the authority" of a computer used in interstate commerce, causing over $5000 worth of combined damage.

Opponents and supporters of the law make claims and counterclaims:
Critics state that the PEN/Trap Authority to track Internet usage in non-terrorism cases is an invasion of privacy, and that judges should be able to reject an application for such a warrant on the merits. Judges shouldn't be forced to rubber-stamp applications for warrants to track whom a person emails and which websites the person visits. Critics would further state that the websites a person visits have a more tenuous link to the activities a person does. An example would be a person hears about a book called the Anarchist Cookbook and searches the web for it. This is markedly different than a person talking on the phone with other people about how to obtain the materials needed to make something nefarious.
Supporters reply that law-enforcement has long had analogous authority to get a list of phone numbers a person has called merely by claiming that it relates to an ongoing investigation, and for law-enforcement to be able to track which websites a person visits and whom a person emails or receives email from is modernization.
Critics state that the law expands the powers under the Foreign Intelligence Surveillance Act (FISA) to spy on Americans or foreign persons in the US (and those who communicate with them), and that it expands the authority of the Foreign Intelligence Surveillance Act, from the situations where the suspicion that the person is the agent of a foreign government is "the" purpose of the surveillance to any time that this is "a significant purpose" of the surveillance.
Supporters reply that FISA surveillance under the new law is permitted only for non-U.S. persons. While a FISA wiretap may pick up the conversation of an American citizen when he is talking to a foreigner, FISA still cannot be specifically be used to "spy" on individual American citizens, and it is not wrong to have a higher standard of rights for American citizens as opposed to guests of the country. Finally, agents of Al-Qaeda are not "agents of a foreign government," and that FISA needed to be amended in a time where stateless terrorist conspiracies can murder thousands of people wholesale.
Critics state that the law allows increased information sharing between domestic law enforcement and intelligence, repealing some of the barriers put up in the 1970s after the discovery that the FBI and CIA had been conducting joint investigations on over half a million Americans during the McCarthy era and afterwards, including Martin Luther King Jr. It allows wiretap results and grand jury information and other information collected in a criminal case to be disclosed to the intelligence agencies when the information constitutes foreign intelligence or foreign intelligence information, the latter being a broad new category created by this law.
Supporters reply that the failure of inter-agency information sharing has led to disasters in recent decades, including the failure to locate known terrorists in the past and to shut down alien smuggling and underground slavery rings.
Supporters say that the Patriot Act and the is being used with increased effectiveness against common criminals, especially drug traffickers, scam artists, and sex offenders. Increased authority to wiretap and observe suspects is enabling police to gather more detailed information that can be used against criminals after arrest.

The USA PATRIOT Act is not why the American citizens Jose Padilla and Yaser Kemal are being held; they are being held as enemy combatants, a term from the World War II era. The U.S. government is relying on a 1942 Supreme Court decision, Ex parte Quirin, to hold them indefinitely, without being able to meet with attorneys, friends, or family.

A government report has found that secret searches in the U.S. are up 85% since 2001.

Alleged abuses under the PATRIOT Act

In Las Vegas, police used a FISA warrant to monitor the activities of a strip club owner.
The FBI ordered all journalists that have ever written about computer hacker, Adrian Lamo, to turn over their information under the auspices of the Patriot Act. [5]
Beyond the above examples, in September 2003, the New York Times reported that a study by Congress showed hundreds of cases where the Patriot Act was used to investigate non-terrorist crimes. [6]
In April, 2004, a Muslim Idaho man went on trial on charges of supporting terrorism by maintaining some web sites (among many he assisted) that supported violent activities. [7] This type of "guilt by association" was resurrected by the 1996 "anti-terrorism" act signed by President Clinton, but was further expanded under the Patriot Act.
In May 2004, the FBI cordoned off the entire block of a University of Buffalo associate art professor's house, impounding his computers, manuscripts, books, equipment for further analysis and The Buffalo Health Department temporarily condemned the house as a health risk after suspicious vials and bacterial cultures were discovered at his home. The professor, whose art involves the use of biology equipment as part of a project educating the public about the politics of biotechnology was charged with violations under the Section 175 of the US Biological Weapons Anti-Terrorism Act which was expanded by the USA Patriot Act. [8] [9]
The ACLU was prevented from releasing the text of its lawsuit challenging aspects of the Patriot Act because the government claimed it would violate secrecy provisions of the act. [10]
The maintainer of a TV-show fan website was charged with copyright infringement after the MPAA directed the FBI to obtain records from the site's Internet service provider about the site under the USA Patriot Act [11] [12]