I have been thinking about this a lot recently. And since I mentioned in a comment on another blog that I would write a blog about the Patriot Act, here it goes. I think that the United States Patriot Act is one of the most tyrannical pieces of legislation ever passed in the history of the United States. Shortly after 9/11, a panicked Congress decided to pass the Patriot Act, and then reauthorized it in 2006. This piece of legislation gives the FBI power to secretly invade the American people’s privacy – which actually violates the 4th Amendment of the Constitution.
The Patriot Act increases the governments surveillance powers in four areas:
- Records searches. It expands the government’s ability to look at records on an individual’s activity being held by a third parties. (Section 215)
- Secret searches. It expands the government’s ability to search private property without notice to the owner. (Section 213)
- Intelligence searches. It expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information (Section 218).
- “Trap and trace” searches. It expands another Fourth Amendment exception for spying that collects “addressing” information about the origin and destination of communications, as opposed to the content (Section 214).
Why is the Patriot Act’s expansion of records searches unconstitutional?
- Violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.
- Violates the First Amendment’s guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy.
- Violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.
- Violates the Fourth Amendmentby failing to provide notice – even after the fact – to persons whose privacy has been compromised. Notice is also a key element of due process, which is guaranteed by the Fifth Amendment.
More Secret Searches?
- The Patriot Act, however, unconstitutionally amends the Federal Rules of Criminal Procedure to allow the government to conduct searches without notifying the subjects, at least until long after the search has been executed. This means that the government can enter a house, apartment or office with a search warrant when the occupants are away, search through their property, take photographs, and in some cases even seize property – and not tell them until later.
Expansion of the intelligence exception in wiretap law
- Under the Patriot Act, the FBI can secretly conduct a physical search or wiretap on American citizens to obtain evidence of crime without proving probable cause, as the Fourth Amendment explicitly requires.
Expansion of the “pen register” exception in wiretap law
- Another exception to the normal requirement for probable cause in wiretap law is also expanded by the Patriot Act. Years ago, when the law governing telephone wiretaps was written, a distinction was created between two types of surveillance. The first allows surveillance of the content or meaning of a communication, and the second only allows monitoring of the transactional or addressing information attached to a communication. It is like the difference between reading the address printed on the outside of a letter, and reading the letter inside, or listening to a phone conversation and merely recording the phone numbers dialed and received.
- Wiretaps limited to transactional or addressing information are known as “Pen register/trap and trace” searches (for the devices that were used on telephones to collect telephone numbers). The requirements for getting a PR/TT warrant are essentially non-existent: the FBI need not show probable cause or even reasonable suspicion of criminal activity. It must only certify to a judge – without having to prove it – that such a warrant would be “relevant” to an ongoing criminal investigation. And the judge does not even have the authority to reject the application.
The Patriot Act broadens the pen register exception in two ways:
- “Nationwide” pen register warrants
Under the Patriot Act PR/TT orders issued by a judge are no longer valid only in that judge’s jurisdiction, but can be made valid anywhere in the United States. This “nationwide service” further marginalizes the role of the judiciary, because a judge cannot meaningfully monitor the extent to which his or her order is being used. In addition, this provision authorizes the equivalent of a blank warrant: the court issues the order, and the law enforcement agent fills in the places to be searched. That is a direct violation of the Fourth Amendment’s explicit requirement that warrants be written “particularly describing the place to be searched.”
- Pen register searches applied to the Internet
The Patriot Act applies the distinction between transactional and content-oriented wiretaps to the Internet. The problem is that it takes the weak standards for access to transactional data and applies them to communications that are far more than addresses. On an e-mail message, for example, law enforcement has interpreted the “header” of a message to be transactional information accessible with a PR/TT warrant. But in addition to routing information, e-mail headers include the subject line, which is part of the substance of a communication – on a letter, for example, it would clearly be inside the envelope.
(some of my information came American Civil Liberties Union)