December 7, 2007, 7:25 pm; posted by
Filed under Articles, Featured, Steve  | 1 Comment

Misunderstood and misinterpreted, perhaps no piece of legislation in the history of our nation has been more vilified than the USA PATRIOT Act. Liberals and libertarians alike assail and revile it, with overblown claims of its supposedly horrifying effect on the privacy rights of American citizens, painting the picture of nosy, moralistic government agents, hunched over in a small room a la The Lives of Others, keeping dutiful tabs on each and every telephone call or email critical of Laura Bush’s earrings.

Imagine my surprise when I read the bill.

Or — to be accurate — read the bills. See, the USA PATRIOT Act (it’s an acronym, and that’s the proper title) isn’t a single bill per se. It’s mostly a series of amendments to existing bills, designed to make America’s intelligence-gathering and prosecution more flexible in light of the recent and vast changes in technology and the growing threat of international terrorism.

Here’s another surprise. Rather than being a wholesale Cheney-spawned attack on privacy, many of the changes it wrought actually increased the privacy rights of American citizens. Let me give you some examples.

Section 223 created civil liability, where none had existed, for unauthorized disclosures of the material collected in electronic surveillance. Section 218 requires a “significant purpose” of a FISA search or surveillance, which already requires the target to be labeled an ‘agent of a foreign power,’ to be the collection of “foreign intelligence information,” which has a clear definition in the law, and cannot be somehow twisted to include your plans this weekend. This was a change from the original requirement (“the purpose”), but more stringent than the administration sought (“a purpose”). Section 215 (discussed further below) requires a court order to obtain information that the police can get right now without a warrant — to ensure there’s a paper trail and someone responsible. Section 109 of the reauthorization requires congressional oversight and reporting over most, if not all, of the new features.

Know what else? Most, if not all, of the more controversial sections have sunset provisions, which require repeated approvals by Congress, to ensure they are not being misused.

Section 206 allowed roving surveillance under FISA, which meant that rather than having to stick to tapping static phone lines while all the terrorists bought cell phones to plot attacks, we could allow investigators to tap a number or numbers. This requires a court order, and only applies to “agents of a foreign power,” but because of the possibility that an innocent bystander could use a tapped number or device, this still has a sunset provision, set to expire in 2009 (as best I know). Additional requirements added by Congress include specific facts and notice regarding each place or number, requiring government justification for every use.

The infamous section 215, regarding business records (including libraries and the like), is limited — you might not know this — to investigations designed to “protect against international terrorism or clandestine intelligence activities” or to get “foreign intelligence information not concerning U.S. persons.” No investigation of an American can be based solely on information protected by the First Amendment either. Anyway, all this section did was allow intelligence gatherers, with a court order, to look at the same information the police already could — there is no constitutional right to privacy, after all, in your library books. And there’s still a sunset provision, expiring in 2009 — plus extra amendments that allow challenges. Oh, and as of April 2005, DOJ had never used it in a library or bookstore.

I forgot — section 106 of the reauthorization added a whole host of additional requirements for this section too — facts about relevance to the investigation, enumeration of minimization factors, and a description of the specific tangible things being sought in the search — plus a provision for review by a three-judge panel, and oversight by the Attorney General and Inspector General.

And no. There’s nothing about making any US citizen disappear, or detaining any US citizen without a trial. That’s nothing but groundless nonsense, with no textual support whatsoever. In the first appeal heard from a FISA case, by the way, the appeals court imposed restrictions that were not in the law or the Constitution — requiring that law enforcement officers not make recommendations to intelligence officers about the initiation or operation of FISA searches or surveillances, and (erroneously, by the text of the law) claiming that applications for electronic surveillance could be approved only where the government’s objective was not primarily directed toward criminal prosecution of foreign agents for foreign intelligence activity.

Trouble understanding? What that means is that even in cases under FISA — which are limited to people under the control and direction of foreign powers, defined in such a way that the nature of their affiliation is a crime — we have to keep criminal law and intelligence-gathering separate. And when it comes to US citizens, the wall is fully intact. FISA laws have strict requirements about American citizens — if there’s a chance a tap or search will affect a US person, at the very least, the information must be “to protect against international terrorism or clandestine intelligence activities.”

You’re thinking — they’ll define that to include my local Ron Paul meetup! But they can’t! They have to go before a court originally with a long list of requirements, get an order that is very specific in what they can and cannot do, and then get re-authorized every 90 days after that. A few of these requirements don’t exist if American citizens aren’t involved, but courts are still involved, and the fruits of the search become a matter of record for the judge to consider in extending the time. The only time that there’s no court order requirement is when the wiretap is meant to intercept communications between actual foreign powers — overseas (or, I suppose, in their embassies).

These laws were not designed to decrease privacy, and on balance, they don’t do so for American citizens. What they do accomplish is to update the law in the area to include new technology, and allow some information about terrorists to be shared between law enforcement and intelligence agencies (although, as we’ve seen, this has been limited by the courts).

And I’ll repeat it one more time. There is absolutely ZERO chance that any of these changes could be used to arrest and detain an American citizen in the United States without due process. Enemy combatants in foreign lands are not American citizens, and although we could debate this, I don’t think they deserve any of our legal or constitutional protections. The Fourth Amendment requires a certain level of protection in our criminal law, and it’s been defined to require probable cause that you or I have committed a crime. The FISA laws and others like it, amended by the USA PATRIOT Act, actually require a higher standard — probable cause that the target is an agent of a foreign power, or that the information is to protect against international terrorism. Determined by a judge.

This was too long. But I had to say it.


1 Comment to “USA PATRIOT Act”

  1. Jesse on December 9th, 2007 7:57 pm


    Thank you for this post. It was enlightening since I am admittedly pretty ignorant about what the USA PATRIOT Act actually says. I only have the talking points I hear on the television and radio. While I certainly agree information needs to be shared between law enforcement and intelligence personnel I can also understand why people are nervous. It is the slippery slope concept. This could very well be the first step toward restricting our freedoms as citizens. I do not personally believe this but I do try to stay on top of things lest our country starts to resemble a 1984- or V for Vendetta-inspired state. Although I disagree that the USA PATRIOT Act is ultimately a negative thing I think people are right in questioning it to make sure nothing slips through the system without the public being aware.

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