The Proposal to Reauthorize and Expand Parts of the USA PATRIOT Act: Why It's Unnecessary and, In Some Respects, Dangerous

Currently, the U.S. Senate Intelligence Committee is currently considering a draft bill that would reauthorize some of the most controversial provisions of the USA PATRIOT Act. (I will refer to the bill as the PATRIOT Reauthorization Act (PAREA)).

The reasons why these provisions are controversial - they trample on Fourth Amendment and privacy rights, as I discussed in a prior column - are reasons not to renew them. At a minimum, if they must be renewed, they should be renewed with a "sunset" provision, allowing Congress to once again consider whether they are necessary

In addition to reauthorizing these controversial provisions, the bill, if enacted into law, would also expand the government's power to secretly - and without getting a court's approval - demand people's private records, even though they aren't suspected of terrorist acts.

Overall, the result of PAREA's becoming law would be to further enlarge the government's surveillance powers -- without any requirement that it link individuals to particular suspected crimes before using these powers. Yet the government has not made a compelling case that such extraordinarily broad powers are necessary - as it ought to, when precious civil liberties are involved.

The proposal - which is likely to be considered in a closed-door meeting of the Senate Intelligence Committee - should be rejected or, at the very least, dramatically modified to require independent judicial review prior to subpoena issuance.

The Bid to Reauthorize Section 215: The Librarian's Nightmare With Tiny Changes

One of the controversial PATRIOT Act provisions PAREA would make permanent is Section 215. As I discussed in a previous column, this Section currently allows intelligence investigators to demand all kinds of records about citizens, even though they are not suspected of spying or terrorism.

It allows the FBI to gain records or other "tangible items" from any person or organization, if the FBI claims a link to an ongoing terrorist or foreign intelligence investigation. Secrecy is the key here: Section 215 gags those who receive an order to produce such records

Prior to the PATRIOT Act, the FBI had access to only a few types of records that were of particular use in investigating terrorists and spies: those belonging to hotels, motels, car and truck rental agencies, and storage rental facilities. But Section 215 now allows the FBI to seek any tangible item -- "including books, records, papers, documents, and other items" -- regardless of who holds it. This could include sensitive medical records or membership lists from clubs or religious organizations.

Also, prior to the PATRIOT Act, in order to get even the limited categories of records that were eligible, the FBI had to present to the Foreign Intelligence Surveillance Act (FISA) court "specific and particularly facts giving reason to believe that the person to whom the records pertain[ed]" was an agent of a foreign power (i.e. some sort of spy). But now the FBI need not show a link between the people whose records it is accessing, and any crime -- let alone a crime of terrorism.

Granted, Section 211 of PAREA would now require that the items that the government seeks are "relevant" to that investigation. But with reasonable minds disagreeing about what is "relevant," the addition of this word means little.

Surely, lists of people who worship at a particular mosque may be relevant to an investigation of possible terrorist connections of one among the worshippers. But is each member's identity relevant? The whole point of the law is that totally innocent non-suspects can be subjected to searches; that the search must, at least, be "relevant" to the investigation, provides little, if any, comfort.

A much more palatable amendment than Section 211, is the one provided in the bipartisan Security and Freedom Enhancement Act (SAFE Act). The SAFE Act is meant to curtail some of the more intrusive portions of the PATRIOT Act while recognizing the importance of the government's need for strong investigative tools. It would modify Section 215 to require the FBI to establish "specific and particularly facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power."

In layman's terms, the SAFE Act would require that the government would have to establish that individual suspects were in fact connected to spying or terrorism. It is fairer for the government to have to show that someone is individually connected with terrorist acts, before gaining access to all sorts of records about him.

And granted, PAREA would also require semi-annual reporting for orders that relate to booksellers, firearm purchases, medical records and tax information - presumably because such records are especially sensitive or personal.

That's a good idea - but what about the sensitive, personal information relating to membership in religious, political or social organizations? Why is this information left out of the reporting requirement? Certainly, what gun one buys is less private than where one chooses to worship!

Section 218 and the Continued Erosion of the Fourth Amendment

PAREA would also make permanent another controversial PATRIOT Act provision: Section 218. Section 218 allows the government to obtain search warrants using the FISA court, without having to respect Fourth Amendment standards -- even when the evidence may be later used in a criminal prosecution that has nothing to do with foreign intelligence.

As I have noted previously, prior to the PATRIOT Act, the U.S. government kept our justice system in a state of equilibrium by creating a wall. This sacred division separated, on the one hand, criminal law enforcement (where individual suspicion of criminal activity was required to investigate) and, on the other, foreign intelligence (where data was sought broadly, to help prevent terrorism that might occur in the future.).

But under the USA PATRIOT Act, the wall has been broken down.

From 1978 until the PATRIOT Act was passed, the FISA Court's power to issue secret warrants was limited solely intelligence-gathering, with a view toward preventing espionage and terrorism. Thus, to procure such a warrant, the government had to convince the FISA court there was "probable cause" that the surveillance target was a foreign power or an agent of a foreign power. Meanwhile, in other federal courts, and in and state courts, under the Fourth Amendment, a warrant to intercept a communication, or a search warrant, had to be based on "probable cause" to believe that a crime has been or is being committed.

Now, as a result of Section 218 of the PATRIOT Act, intelligence gathering need only be "a significant purpose" of FISA-authorized surveillance. And, as I pointed out in an earlier column, the result is to open the door to an end run around Americans' Fourth Amendment rights - for another purpose of the surveillance, could well be domestic law enforcement.

And it has been: Not just CIA agents, but FBI agents as well -- or even state law enforcement, cooperating with the CIA and FBI - now have, and have used, the ability to utilize FISA's secrecy and its lower legal standards for warrants and wiretaps.

This "significant purpose" standard should be removed, or clearly limited by the requirement of a nexus to terrorism on the domestic side. But that is not what PAREA does.

Indeed, Section 203 of PAREA not only will make Section 218 permanent, it will also broaden the section. It states that that "foreign intelligence information" includes a need to gather information for criminal law enforcement related to terrorism

What counts as "law enforcement related to terrorism"? "International terrorism" need not be involved, according to PAREA's sponsors' memorandum summarizing the bill. It is enough if the law enforcement involves "sabotage, clandestine actives and other " 'grave hostile acts.'"

The drafters of PAREA suggest this revision merely makes the law consistent with the first-ever opinion of the FISA Review Court -- which ratified the Justice Department's approach in 2003, as I discussed in a column about this historic decision. But the FISA Review Court was careful to limit the application of its decision, and PAREA flouts those limits.

In particular, the FISA Court stated that the government could only break down barriers between the FBI and local criminal authorities with respect to crimes that are related to foreign intelligence -- not ordinary crimes. As the Court of Review noted, "the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes." (Emphasis added)

And PAREA, as noted above, does not reflect this limitation. Rather, it makes explicit that the FBI can use the FISA process to investigate terrorist-related crimes. PAREA does not, however, state that the FISA process may only be used for terrorist related crimes.

The New Proposal That Would Expand Secret Subpoena Powers

In addition to making these provisions permanent, PAREA Section 213 would also introduce a new type of "administrative" - read: not court-approved - subpoena in national security cases. The government could use such subpoenas to secretly demand all sorts of records from businesses and other institutions, without first receiving a court's permission.

All that would be required would be for the investigators themselves to declare that the material they seek is needed as part of a national security investigation. But that leaves room for exactly the kind of excessive prosecutorial zeal that inspires the typical Fourth Amendment requirement of a "neutral magistrate." Judges provide important checks and balances in the criminal justice system - especially in the federal system, where life tenure guarantees their independence.

Administrative subpoenas are fine when it comes to civil administrative proceedings, in which law enforcement may fear that records may be destroyed, or may seek the convenience of such a process when they have lots of administrative records to gather. For instance, the Occupational Safety and Health Administration (OSHA) has administrative subpoena authority. But it uses the data it gathers to issue civil fines or citations - not to prosecute alleged violators.

According to James Dempsey, the Deputy Director of the Center for Democracy and Technology, current law authorizes administrative subpoenas in 335 contexts. But a whopping 330 of these involve the use of such subpoenas by administrative agencies in the context of regulatory programs.

In contrast, a meager five of these contexts involves the authorization of administrative subpoenas for use primarily in criminal investigations - and even there, the subpoenas are not secret, as in PAREA: The target often learns of the subpoena after a 90 day period expires, or when he is indicted.

As Dempsey notes: "The [administrative subpoena programs] are subject to various checks and balances. They often issue directly to the subjects of investigations. In other words, the target of the investigation gets notice of the subpoena because they receive the subpoena. They are generally not subject to secrecy rules."

Also, unlike in PAREA, the basis for the subpoena must be a clear, specific allegation that evidence shows, for instance, a doctor engaged in health care fraud, or a person believed to be trafficking in child pornography.

With the new PAREA subpoenas, however, the target may be investigated and never know that he was a government target. Without his knowledge, the results of the search may go into his dossier.

In the context of anti-terrorism efforts, these no-probable-cause searches may well target searchees based on race, national origin, or religion. Yet because they are secret, they may never be challenged in court. And the possibility these searches may occur will doubtless chill free speech - when any public remark may lead to a secret search on one's private documents, for which there is no recourse or remedy.

Third Parties' Option to Challenge Subpoenas Is Not Much of a Safeguard

As a safeguard, PAREA proposes to allow the third party from who the records are sought - say, your Internet Service Provider (ISP) to challenge the administrative subpoena in court. But there's no guarantee the ISP would bother to do so.

Going to court is costly, and if the third-parties don't bother, the customer will never know. (Indeed, the business is prohibited from notifying its customer of the existence of the subpoena.) So, as Dempsey asked in his testimony before Congress, why would the third parties - "airlines, hotels chains," and others -- "go to the expense of challenging a 215 order or administrative subpoena?"

In sum, PAREA should be rejected, or substantially modified to allow review by a neutral judge (a federal judge, not an administrative judge).

The government has obtained a broad range of powers in intelligence investigations -- especially against foreigners, but also against U.S. citizens. Given the secrecy with which these investigations are conducted, their wide scope, and the lack of checks and balances, independent judicial review - requiring a factual premise and particularized suspicion for a subpoena to be authorized -- are the very minimum required to safeguard our liberty.