Does the PATRIOT Act Allow the Government to Conduct Secret Searches and Access Records of Individuals Held by Third Parties, without Providing Sufficient Judicial Overview?
The American Civil Liberties Union wrote in its July 2003 report “Seeking Truth From Justice – PATRIOT Propaganda: The Justice Department’s Campaign to Mislead the Public About the USA PATRIOT Act”:
“[T]he statute makes it clear that an ‘investigation of a United States person’ can be conducted, so long as it is not based solely on activity protected by the First Amendment…
Under the PATRIOT Act, the FBI can obtain records – including library circulation records – merely by specifying to a court that the records are ‘sought for’ an ongoing investigation. That standard (sometimes called a ‘relevance’ standard) is much lower than the standard required by the Fourth Amendment, which ordinarily prohibits the government from conducting intrusive searches unless it has probable cause to believe that the target of the investigation is engaged in criminal activity…
All the government needs to do to conduct a search under Section 215 is ‘specify’ that the records are ‘sought for’ an ongoing terrorism or foreign intelligence investigation. The government need not show that the target of the Section 215 order is engaged in terrorism or criminal activity of any kind.”July 2003
Anita Ramasastry, JD, wrote in the Aug. 6, 2003 article “Why the ACLU Is Right to Challenge the FBI’s Access to Library, Bookstore, and Business Records Under the USA PATRIOT Act” for Findlaw’s Writ & Legal Commentary:
“Under Section 215, [the] searches and seizures [of ‘tangible things’] can occur not only without notice to the target, but also without a warrant, without a criminal subpoena, and without any showing of probable cause that a crime has been committed…
Prior law only allowed such broad search powers when the FBI was investigating suspected spies. Now, under Section 215, literally anyone can be subjected to such searches.”Aug. 6, 2003
Bob Barr, JD, Former US Congressman (R-GA), said in his Dec. 6, 2005 statement “Problems With the USA Patriot Act”:
“[Section 215 of] The USA PATRIOT Act… greatly loosened the standard under which the government could obtain secret court orders to gather evidence from third parties on any individual. Thus, under the Act, the government now can obtain records of a person’s library records, firearms records, medical records, or any other type of ‘tangible evidence’ without showing the court any suspicion that the person has violated the law or is an agent of a foreign power. So long as the government agent tells a federal judge it wants the records because they are relevant to some undefined national security or foreign intelligence investigation, the judge must issue the order.
This is far too loose a standard, made worse because the law also provides that a person who receives such an order cannot tell anyone they have received the order to turn over records, and if they do, they can be prosecuted for doing so.”Dec. 6, 2005
John Podesta, JD, in the 2002 article “USA Patriot Act – the Good, the Bad, the Sunset” for Human Rights Magazine of the American Bar Association’s Section of Individual Rights and Responsibilities, wrote:
“A common problem running through many of the new authorities contained in the Patriot Act is the reliance on executive branch supervision rather than meaningful review by a neutral magistrate of the potentially highly intrusive surveillance techniques that are authorized.”2002
The United States Department Of Justice, in “Dispelling Some of the Major Myths about the USA PATRIOT Act” posted on the “Preserving Life and Liberty,” section of its website (accessed on Aug. 3, 2006), stated:
“In national security cases where use of the grand jury process was not appropriate, investigators previously had limited tools at their disposal to obtain certain business records. Under the Patriot Act, the government can now ask a federal court (the Foreign Intelligence Surveillance Court), if needed to aid an investigation, to order production of the same type of records available through grand jury subpoenas.
This federal court, however, can issue these orders only after the government demonstrates the records concerned are sought for an authorized investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a U.S. person is not conducted solely on the basis of activities protected by the First Amendment.”Aug. 3, 2006
Edwin J. Feulner, PhD, President of the Heritage Foundation, wrote “Checking out the Patriot Act” for the Feb. 12, 2004 Press Room commentary for the Heritage Foundation, which stated:
“Of course, before the Patriot Act, the government would have needed both to obtain a warrant and to show probable cause that a crime had been committed before it could look at most financial records, library records, phone logs, etc. Now, under Section 215 of the Patriot Act, if the government is involved in an authorized investigation of international terrorism – and only under such circumstances – it needs simply a judge’s warrant to see those records.
This makes sense. Before Sept. 11, there were too many restrictions on the FBI’s intelligence gathering.”Feb. 12, 2004
The Washington Times, in its Aug. 26, 2003 editorial “Hype, Hysteria and the Patriot Act,” stated:
“One of the most unfairly maligned provisions of the 2001 Patriot Act is section 215, which permits the FBI to apply for a court order requiring production of library and business records in the course of a terrorism investigation…
Before the FBI can obtain such information, it must first convince the Foreign Intelligence Surveillance Act (FISA) court which oversees these investigations, that the documents sought are relevant to combating international terrorism or secret intelligence activities…
In order to investigate an American citizen under FISA, the government must show that he is knowingly engaged in terrorism or espionage.”Aug. 26, 2003
Claudia Winkler, managing editor of the Weekly Standard, wrote the Apr. 28, 2004 “Who’s Afraid of the Patriot Act?” for The Daily Standard, which stated:
“[FBI’s application for a court order under Section 215 to request records] ‘for an investigation to protect against international terrorism or clandestine intelligence activies’… must be authorized by a federal court–the FISA court, specialized in foreign intelligence matters…
Just in case neither the FBI nor the authorizing court does its job properly, there is an oversight measure built into Section 215: Every six months, the attorney general must report to Congress how many requests for court orders have been made and how many granted. So far the number of searches of library and bookstore records reported under the Patriot Act: zero.”Apr. 28, 2004