Patriot Act Summary
Section 215 – Record searches- Third-party holders of financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without one’s knowledge or consent.- The government needs to go to a judge, but the judge has no authority to reject the search. The government does need to certify (though does not have to offer evidence) that the end goal of the search is to protect against international terrorism – the subject of the search does not have to be suspected of terrorism themselves- Previously such searches were allowed but did require a warrant or that the search was related to “foreign intelligence” and the target was linked to “foreign espionage.”- This section sunsets in 2005 Section 218 – Use of secret court expanded- Expands the use a secret court that was established in 1978 to grant search warrants for searches and wiretaps. Originally established for only the gathering of foreign intelligence, The Patriot Act expands the use of this court to now being able to grant warrants if the search has a “significant purpose” in intelligence gathering.- This court is not open to the public and does not maintain oversight over the surveillance. The court has only denied 5 out of 14,000 warrant applications before 2001.- The number of warrants issued by the court rose to 1,228 in 2002, from 934 in 2001, and 1,012 in 200.- This section sunsets in 2005 Section 213 – Sneak and peak searches-Allows secret searches of home and property without prior notice if court approves-Such searches were allowed before only if the subject of the search was a “foreign power or their agent” suspected of terrorism. The searches are now allowed for any criminal investigation where prior notification would have an “adverse result.” The subject of the search does need to be eventually told of the search “within a reasonable period,” but can be extended by the court for “good cause shown.”- The DOJ has conducted 47 such searches since the Patriot Act has been passed and delayed notification from one to 90 days.- The section does not sunset Section 214 – pen taps- The government can trace the source of incoming and outgoing calls without a warrant. The content of these conversations is not recording, just the source of them.- The government needs to certify to a judge that the trace is “relevant to an ongoing investigation.” This is a much lower standard than probable cause and the courts are not allowed to inquire into the truthfulness of allegations. - Such traces have been legal since 1978, but now applies to criminal cases as well as intelligence operations- The section sunsets in 2005. Section 216 – Internet surveillance- Similar to 214 in that “dialing, routing, and signaling” of a subject’s Internet activity can be traced with a court certification (similar to 214). The content of that activity is still protected.- Actually may expand privacy because the rules with the internet were a lot more ambiguous before this. Some judges had previously ruled that Internet content could be viewed by authorities without a full-fledged warrant. Section 216 clears up this ambiguity.- This section does not sunset Section 206 - roving wire taps- Judges may now authorize roving wiretaps: taps specific to no single phone or computer but to every phone or computer a target may use. Previously courts granted taps to only specific phones.- These national wiretaps are not limited to a specific judge’s jurisdiction, raising questions about oversight. - The section sunsets in 2005. Section 505 – personal records
- Authorizes the government to compel holders of your personal records (like telephone logs, email logs, financial records, credit reports) to turn them over to the government, simply by writing a letter asserting they are relevant to an ongoing terrorism investigation.- Letter can be used against anyone, even if they themselves are not suspected of espionage or criminal activity. Previously the subject needed to be suspected of espionage.- Those forced to turn over records are gagged from disclosing the demand- No judicial oversight, but cannot be used in criminal proceedings- This section does not sunset Section 802- Creates a crime called ‘domestic terrorism’ that penalizes actions that violate criminal law and endanger life if the intent is to ‘influence the policy of a government by intimidation or coercion.’- No one has been prosecuted under this section- The section sunsets in 2005. Sections 411 and 412-Makes even unknowing association with terrorists a deportable offense-Allows attorney general to order a brief detention of aliens without any prior showing or court ruling that the person is dangerous- Hardly ever used by administration – if they detain or deport, they do it under other exemptions under the law- These sections sunset in 2005. Source: Dahlia Lithwick and Julia Turner at slate.com
Patriot Act Summary
National Security Letters (2001 version)- Third-party holders of Internet, financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without one’s knowledge or consent. The holders of the records could not tell the target of the inquiry about the demand for records. There was some question whether that prohibition extended to whether the holder of the records could contact their attorney on the matter. - The government needs to go to a judge, but the judge has no authority to reject the search. The government does need to certify (though does not have to offer evidence) that the end goal of the search is to protect against international terrorism – the subject of the search does not have to be suspected of terrorism themselves- Previously such searches were allowed but did require a warrant or that the search was related to “foreign intelligence” and the target was linked to “foreign espionage.”- This section was amended in 2005 to clarify that the holders of the records could contact attorneys and created the ability to challenge the request in court. In addition the applications for records now need to be signed by either the Deputy Director or Director of the FBI.- The court issued about 9,000 National Security Letters in 2000 and roughly 50,000 such letters in 2005. A 2006 internal audit by the FBI found that thousands of those letters probably violated the privacy of us citizens or internal FBI procedures.- This section, which wound have sunset in 2005 is now extended to 2009.In 2007, a New York District Judge ruled that the limitations on speaking about the letters amounted to a violation of free speech (an ISP had sued arguing it was a violation of their free speech rights) and a violation of separation of powers (because there is no court review of the issuance of the letters).Sneak and peak searches (2001 version)-Allows secret searches of home and property without prior notice if court approves-Such searches were allowed before only if the subject of the search was a “foreign power or their agent” suspected of terrorism. The searches are now allowed for any criminal investigation where prior notification would have an “adverse result.” The subject of the search does need to be eventually told of the search “within a reasonable period,” but can be extended by the court for “good cause shown.”- A 2005 amendment now sets a presumptive limit of 30 days to delay notification with possible extensions of up to 90 days.- The section does not sunset In 2007, Portland District Judge Aiken ruled that when the FBI searched the home of Brandon Mayfield with a sneak and peak warrant, it violated his fourth amendment rights Section 218 – Use of secret Foreign Intelligence Surveillance Act court expanded (2001 version)- Expands the use a the FISA court that was established in 1978 to grant search warrants for searches and wiretaps. Originally established for only the gathering of foreign intelligence, The Patriot Act expands the use of this court to now being able to grant warrants if the search has a “significant purpose” in intelligence gathering.- This court is not open to the public and does not maintain oversight over the surveillance. The court has only denied 5 out of 14,000 warrant applications before 2001.- The number of warrants issued by the court rose to 1,228 in 2002, from 934 in 2001, and 1,012 in 200.- This section would have sunset in 2005, but has now been made permanent - The Bush Administration has argued that the FISA court is an obstacle in its efforts to fight terrorism and soon after 9/11 began wire tapping those people associated with terrorism without a warrant of any kind. After the New York Times revealed the practice, Congress in 2007 passed a law allowing the warrant less wire tapping to continue for one year. In 2007, Portland District Judge Aiken ruled that when the FBI searched the home of Brandon Mayfield with a FISA warrant, it violated his fourth amendment rights.Section 206 - roving wire taps (2001 version)- Judges may now authorize roving wiretaps: taps specific to no single phone or computer but to every phone or computer a target may use. Previously courts granted taps to only specific phones.- These national wiretaps are not limited to a specific judge’s jurisdiction, raising questions about oversight. - A 2005 amendment stated that the court must be notified within 10 days that surveillance is at a new location.- This section, which wound have sunset in 2005 is now extended to 2009.Section 214 – pen taps- The government can trace the source of incoming and outgoing calls without a warrant. The content of these conversations is not recording, just the source of them.- The government needs to certify to a judge that the trace is “relevant to an ongoing investigation.” This is a much lower standard than probable cause and the courts are not allowed to inquire into the truthfulness of allegations. - Such traces have been legal since 1978, but now applies to criminal cases as well as intelligence operations- This section would have sunset in 2005, but has now been made permanent Section 216 – Internet surveillance- Similar to 214 in that “dialing, routing, and signaling” of a subject’s Internet activity can be traced with a court certification (similar to 214). The content of that activity is still protected.- Actually may expand privacy because the rules with the internet were a lot more ambiguous before this. Some judges had previously ruled that Internet content could be viewed by authorities without a full-fledged warrant. Section 216 clears up this ambiguity.- This section does not sunsetSection 802- Creates a crime called ‘domestic terrorism’ that penalizes actions that violate criminal law and endanger life if the intent is to ‘influence the policy of a government by intimidation or coercion.’- No one has been prosecuted under this section- This section would have sunset in 2005, but has now been made permanent Sections 411 and 412-Makes even unknowing association with terrorists a deportable offense-Allows attorney general to order a brief detention of aliens without any prior showing or court ruling that the person is dangerous- Hardly ever used by administration – if they detain or deport, they do it under other exemptions under the law- This section would have sunset in 2005, but has now been made permanent Section 505 – personal records (2001 version)
- Authorizes the government to compel holders of your personal records (like telephone logs, email logs, financial records, credit reports) to turn them over to the government, simply by writing a letter asserting they are relevant to an ongoing terrorism investigation.- Letter can be used against anyone, even if they themselves are not suspected of espionage or criminal activity. Previously the subject needed to be suspected of espionage.- Those forced to turn over records are gagged from disclosing the demand- No judicial oversight, but cannot be used in criminal proceedings- This section does not sunset Source: Dahlia Lithwick and Julia Turner at slate.com, The Department of Justice Fact Sheet on the reauthorization act.