The Sun
Also Sets:
Understanding the Patriot Act “Sunsets”
The Patriot Act contains more than 150 separate sections
in 10 major titles. About a tenth of the law expires or "sunsets" this
year unless Congress votes to reauthorize it. The sections
discussed and listed below are the most significant provisions
that Congress must examine as it deliberates again on the
Patriot Act.
Even though all of the sections listed below raise civil
liberties concerns, the Patriot Act contained a handful of
truly radical expansions of criminal and intelligence search
and surveillance authority, only some of which sunset. These
changes represent the most dangerous sections of the law.
These provisions also embody the ACLU's broader concern
post-9/11 that the White House has demanded and received
an unwarranted amount of power, which weakens the checks
and balances that maintain our system of limited government
and preserve our constitutional liberties.
Congress should use the debate over the sunsets to highlight
these provisions in particular, but should also take the
opportunity to deliberate more broadly on the state of our
freedoms in the "war on terrorism."
Priority sections include:
- Section 213, which expands the government's ability to
execute criminal search warrants (which need not involve
terrorism) and seize property without telling the target
for weeks or months.
- Section 215, which allows the FBI to seize a vast array
of sensitive personal information and belongings – including
medical, library and business records – using secret intelligence
tools that do not require individual criminal activity.
Although the records can only be seized pursuant to a court
order, judges are compelled to issue these orders, making
such judicial review nothing more than a rubber stamp.
- Section 505, which lowers the evidentiary standard for "national
security letters," or NSLs, which are issued at the sole
discretion of the Justice Department, impose a blanket
gag order on recipients and are not subject to judicial
review. NSLs can be used to seize a wide variety of business
and financial records, and in certain instances could be
used to access the membership lists of organizations that
provide even very limited Internet services (message boards
on the ACLU's website for instance).
Background on Title II of the Patriot Act and the Foreign
Intelligence Surveillance Act
The Patriot Act "sunsets" are, primarily, a small group
of provisions in Title II of the law. Title II was the main
vehicle by which the White House and Justice Department set
about making radical changes to criminal and intelligence
laws that permit the authorities more authority to surveil,
monitor and investigate Americans with fewer checks on abuse.
The sunseted Title II sections will expire on Dec. 31, 2005,
unless Congress affirmatively votes to renew them. The ACLU
believes Congress should use the debate over the sunsets
to examine the poor condition of checks and balances and
the separation of powers in our political system and to bring
the Patriot Act back into line with the Constitution. Without
a robust system of checks and balances, we run the risk of
centralizing too much authority in any one branch of government
or individual. As the Constitution's framers understood so
well, centralizing authority poses the greatest danger to
invidividual civil liberties.
The ACLU also urges Congress to examine other provisions
in the Patriot Act, like Section 802, which allows prosecutors
to extend the definition of "domestic terrorism" to protesters
who engage in civil disobedience. These are listed below.
Without Congressional action, much of Title II and the Patriot
Act will remain permanent. Under section 224, all of Title
II will expire, with the exception of 11 sections that are
permanent. Also, a grandfather clause allows the authorities
to continue to use expired powers after the sunset date so
long as they are being used in a specific investigation launched
before that date.
In order to understand precisely what much of Title II is about, once must understand how federal law, and in particular the Foreign Intelligence Surveillance Act (or "FISA"), maintain control over America's intelligence and law enforcement agencies. After Watergate and the revelations that the National Security Agency, the FBI, and other federal agencies had been wiretapping innocent Americans in the name of national security, Congress passed FISA to require judicial oversight electronic surveillance and other secret search powers in foreign intelligence and counter-intelligence investigations.
FISA, passed in 1978, imposed certain standards and created a special, top-secret intelligence court to enforce those standards in intelligence investigations. The primary function of the problem sections of the Patriot Act was to weaken this oversight, which makes it more likely that the government, either accidentally or deliberately, will abuse its authority.
Troubling Sections That Sunset
Sec. 201 Expands wiretap-eligible federal criminal offenses.
Sec. 202 New wiretap authority relating to computer crime.
Sec. 203(b) Allows disclosure of information gathered in
criminal investigation, including wiretaps, to intelligence,
immigration and "national security" officials.
Sec. 203(d) Same as subsection 203(b) above.
Sec. 206 Creates roving wiretap authority (that is, the
court order follows the target, not the phone) under FISA;
did not include a requirement (which is included in other
roving wiretap laws) that the eavesdropper make sure the
target is actually using the device being monitored.
Sec. 207 Permits FISA wiretaps to continue for as long as
a year; expands duration of physical search orders.
Sec. 212 Government can demand records and content from
communications providers without consent, notice or judicial
review in an emergency.
Sec. 214 Permits the government to get the telephone numbers
dialed to and from a particular phone as well as Internet "routing" information
that may contain some substantive content of the communications,
with minimal judicial review under FISA.
Sec. 215 Allows the FBI to use FISA court orders to seize
any "tangible thing," including highly sensitive medical,
library, business and travel records, from a wide variety
of institutions under an extremely weak standard of judicial
review.
Sec. 217 Interception of "computer trespasser" communications
without a judge's assent.
Sec. 218 Allows criminal investigators to use espionage
powers, which require little evidence of criminal wrongdoing,
even if gathering foreign intelligence is only a "significant
purpose" of the investigation, instead of the more demanding "primary
purpose" that was the law before this provision passed.
Sec. 220 Establishes nationwide service of search warrants
for electronic evidence, opening the door to judge-shopping.
Permanent But Problematic Patriot Act Sections
Permanent Provisions that Still Pose Problems for Civil
Liberties
Sec. 213 Authorizes and expands “sneak and peek” delayed-notice
search warrants.
Sec. 216 Permits the seizure of Internet "routing" information
(e.g., website links, addressing information) in criminal
cases under a low standard of proof, without protections
against the unwarranted seizure of possible content.
Sec. 219 Establishes nationwide service of search warrants
for physical evidence.
Sec. 411 Expanded grounds for deportation and exclusion
from the country for alleged support of terrorist groups
or causes.
Sec. 412 Permits the attorney general to unilaterally detain
non-citizen terrorist suspects for seven days without charges;
requires judicial review at six month intervals for indefinite
detention.
Sec. 505 Authorizes the government to seize financial, Internet,
credit and telephone records without prior judicial review
and without articulable suspicion that the target is a terrorist
or spy.
Sec. 507 Expands access to student records without individual
suspicion.
Sec. 508 Same as Sec. 507.
Sec. 802 Defines "domestic terrorism" to include any act
that is "dangerous to human life," involves a violation of
any state or federal law and is intended to influence government
policy or coerce a civilian population. The ACLU fears protesters
will be targeted under this section.
Sec. 901 Permits the head of the the intelligence community
to set "requirements and priorities" for domestic spying,
which could put the CIA back in the business of monitoring
Americans' lawful activities.
Title III – International Money Laundering Abatement and
Anti-Terrorist Financing
Under section 303, all of Title III, which obligates banks
and other financial institutions to furnish a great deal
of customer information to the government, is now permanent.
Congress could have passed a joint resolution before the
beginning of fiscal year 2005 (which started in October 2004)
to sunset the title, but did not do so, and instead repealed
that special review provision instead. Title III also imposes
strict and expensive new identity verification requirements
on financial institutions.
See www.aclu.org/patriot for
the full text of Title III.
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