THE PATRIOT ACT

Politics

The Patriot Act: Key Controversies

LAST UPDATE: Feb. 16, 2006 -- The USA Patriot Act seems headed for long-term renewal. Key senators have reached a deal with the White House that allays the civil liberties concerns of some critics of the law.

Passed in the weeks after the Sept. 11 attacks, the law expanded the government's powers in anti-terrorism investigations. Controversial surveillance provisions were set to expire at the end of last year; attempts to reauthorize them long-term were filibustered last December. The compromise reached last week has the support of both House Speaker Dennis Hastert and Senate Minority Leader Harry Reid. It makes three major changes to the law:

-- It gives recipients of court-approved subpoenas and administrative subpoenas in terrorism investigations the right to challenge a requirement that they refrain from telling anyone about the subpoena (though they must wait a year before making their challenge).
-- It removes the requirement that recipients of a National Security Letter -- a type of administrative subpoena for records that's issued by the FBI -- tell the FBI the name of any attorney consulted about the letter.
-- It clarifies that most libraries will not be subject to National Security Letters demanding information about suspected terrorists.

These changes would come on top of others included in a House-Senate conference last year. The reauthorized Patriot Act would:

-- Require that the FBI explain why it is seeking business records under Section 215, the so-called "Library Provision."
-- Require the FBI to limit retention of information about U.S. citizens and permanent residents.
--Clarifies that recipients of these orders can consult with a lawyer.
-- Requires that the director of the FBI or other top FBI official approve requests for sensitive information, such as library records, medical records or gun ownership information.
--Requires more public reporting to Congress on how the Patriot Act is being used.
-- Requires notice to the target of a "sneak and peek" search within 30 days, unless the facts justify a longer period.
-- Requires the FBI to provide more information about targets of roving wiretaps, which follow the suspect from phone to phone.
-- Clarifies that recipients of National Security Letters can consult with an attorney, and can challenge these orders in court.

Civil liberties group say most of these changes are cosmetic, and that they still allow the FBI to go search through the records of people with no proven link to terrorism. They say that many of these limitations allow challenges after the fact, but don't restrict the government's access to records in the first place. They also note that Internet service providers, banks and other "third parties" have little incentive to fight government search orders -- the amendments to the Patriot Act do not allow the actual targets of these orders to mount a court challenge. Below, NPR examines the act's most controversial provisions:

Information Sharing

Sec. 203(b) and (d): Allows information from criminal probes to be shared with intelligence agencies and other parts of the government. Would be permanently renewed under deal.

Pro:

Supporters say the provisions have greatly enhanced information sharing within the FBI, and with the intelligence community at large.

Con:

Critics warn that unrestricted sharing could lead to the development of massive databases about citizens who are not the targets of criminal investigations.

 

Roving Wiretaps

Sec. 206: Allows one wiretap authorization to cover multiple devices, eliminating the need for separate court authorizations for a suspect's cell phone, PC and Blackberry, for example. Would expire in 4 years under deal.

Pro:

The government says roving wiretaps are needed to deal with technologically sophisticated terrorists.

Con:

Critics say the language of the act could lead to privacy violations of anyone who comes into casual contact with a suspect.

 

Access to Records

Sec. 215: Allows easier access to business records in foreign intelligence investigations. Would expire in 4 years under deal.

Pro:

The provision allows investigators to obtain books, records, papers, documents and other items sought "in connection with" a terror investigation.

Con:

Critics attack the breadth of the provision, saying the law could be used to demand the reading records of library or bookstore patrons.

 

Foreign Intelligence Wiretaps and Searches

Sec. 218: Lowers the bar for launching foreign intelligence wiretaps and searches. Would be permanently renewed under deal.

Pro:

Allows investigators to get a foreign intelligence wiretap or search order, even if they end up bringing criminal charges instead.

Con:

Because foreign intelligence probes are conducted in secret, with little oversight, critics say abuses could be difficult to uncover.

 

“Sneak & Peek” Warrants

Sec. 213: Allows "Sneak and peek" search warrants, which let authorities search a home or business without immediately notifying the target of a probe. Does not expire.

Pro:

Supporters say this provision has already allowed investigators to search the houses of drug dealers and other criminals without providing notice that might have jeopardized an investigation.

Con:

Critics say the provision allows the use of "sneak and peek" warrants for even minor crimes, not just terror and espionage cases.

 

Material Support

Sec. 805: Expands the existing ban on giving "material support" to terrorists to include "expert advice or assistance." Does not expire.

Pro:

Supporters say it helps cut off the support networks that make terrorism possible.

Con:

Critics say the provision could lead to guilt by association.

 

National Security Letters (NSLs)

Sec. 505: Expands the FBI's authority to use NSLs, a type of administrative subpoena that does not require judicial approval. The FBI can use NSLs to request sensitive records so long as the information sought is "relevant" to a national security probe. Does not expire.

Pro:

Supporters say the expanded use of National Security Letters allows the FBI to cast a much wider net to generate leads about potential terrorists plots and to pursue them.

Con:

Critics say these subpoenas can be used to demand the private records of people who are not suspected terrorists or spies. And they note that the FBI does not need a judge's permission to make these requests.

 

The 'Lone Wolf' Provision

Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 allows intelligence investigations of lone terrorists not connected to a foreign nation or organization.

While not part of the Patriot Act, this provision also sunsets on Dec. 31 and is under review. Civil liberties groups say the provision could sweep in protesters and those suspected of involvement in domestic terrorism. Under the deal reached by the White House and Senate Republicans, this provision would be up for renewal in four years.

Information Sharing

Sections 203(b) and 203(d) of the Patriot Act are at the heart of the effort to break down the "wall" that used to separate criminal and intelligence investigations. The Justice Department has frequently blamed the wall for the failure to find and detain Sept. 11 hijackers Nawaf al-Hazmi and Khalid al-Midhar prior to the attacks. CIA agents had information that both men were in the United States and were suspected terrorists, but the FBI says it did not receive that information until August 2001.

U.S. officials also blame the wall for the failure to fully investigate Zacarias Moussaoui, who has since pleaded guilty in connection with the Sept. 11 plot. The government says that existing procedures made investigators afraid of sharing information between the intelligence and criminal sides of the probe. Supporters say these provisions have greatly enhanced information sharing within the FBI, and with the intelligence community at large.

Civil libertarians say the failure to share information was largely a result of incompetence and misunderstanding of the law. They say investigators were always allowed to share grand jury information, which is specifically authorized by this section. They warn that the scope of the Patriot Act language is far too broad and encourages unlimited sharing of information, regardless of the need.

Critics say that investigators should have to explain why information is being shared, and that only information related to terrorism or espionage should be released. They warn that unrestricted sharing could lead to the development of massive databases about innocent citizens.

Roving Wiretaps

The Justice Department has long complained about restrictions that required separate court authorizations for each device used by the target of an investigation, whether it's a computer terminal, a cell phone or a Blackberry. This provision of the Patriot Act specifically allows "roving wiretaps" against suspected spies and terrorists. The government says it has long had this type of flexibility in criminal cases, and that such authority is needed in dealing with technologically sophisticated terrorists.

Surveillance experts point out, however, that criminal wiretaps must "ascertain" whether the person under investigation is going to be using the device before the tap takes place. Civil liberties groups say the language of the Patriot Act could lead to privacy violations of anyone who comes into casual contact with the suspect. They want Congress to require investigators to specify just which device is going to be tapped, or that the suspect be clearly identified, in order to protect the innocent from unwarranted snooping.

Under the terms of the deal reached by Senate negotiators and the White House, law-enforcement officials filing an application for a roving wiretap would need to provide the identity of the specific target, or if their identity is unknown, a description of the target.

Access to Records

Probably the most hotly debated provision of the law, Section 215 has come to be known as the "libraries provision," even though it never mentions libraries or bookstores. Civil liberties groups attack the breadth of this section -- which allows investigators to obtain "any tangible thing (including books, records, papers, documents and other items)," as long as the records are sought "in connection with" a terror investigation.

Library groups said the law could be used to demand the reading records of patrons. But the government points out that the First Amendment activities of Americans are specifically protected by the law. The Justice Department has released previously classified statistics to show the law has never been used against libraries or bookstores. But the act's critics argue that there's no protection against future abuse.

Civil liberties groups have proposed numerous amendments: special protections for libraries and bookstores; a requirement that investigators explain the reason the records are sought; and an end to the "gag rule" that prohibits people who receive a 215 order from talking about it with anyone. The Justice Department has agreed that recipients can consult with an attorney and is open to an amendment that specifies this right. But the government says the controversy over this provision is an overreaction, and that this section merely expands longstanding access to certain business records.

Under the deal reached by Senate negotiators and the White House, recipients of Section 215 subpoenas now have the right to challenge a requirement that they refrain from telling anyone. However, recipients must wait a year before challenging the gag order.

Foreign Intelligence Wiretaps and Searches

Criminal investigators have a high bar to reach when asking for permission to wiretap or search a suspect's home. The bar is lower in counterterror or counterintelligence probes, where investigators must only prove the suspect is an "agent of a foreign power." Previously, investigators had to show that the "primary purpose" of the order was to gather foreign intelligence; the Patriot Act lowered that requirement to a "significant purpose." The government said this change takes away another brick in "the wall" separating criminal and intelligence probes: It allows investigators to get a foreign intelligence wiretap or search order, even though they might end up bringing criminal charges.

Civil liberties groups insist that "the wall" rose up through misunderstandings, and that there was no hard barrier against launching a criminal probe against someone being investigated as a spy or terrorist. They point to a 2002 ruling by the Foreign Intelligence Court of Review that buttresses this point.

But critics say the Patriot Act creates a new risk in Section 218 -- that investigators will too easily use spying and terrorism as an excuse for launching foreign intelligence wiretaps and searches. They point to the fact that the number of intelligence wiretaps now exceeds the number of criminal taps. Since these probes are conducted in secret, with little oversight, abuses could be difficult to uncover. Civil liberties groups say one antidote would be to require that the Justice Department release more information about foreign intelligence investigations.

“Sneak & Peek” Warrants

This section allows for "delayed notice" of search warrants, which means the FBI can search a home or business without immediately notifying the target of the investigation. The Justice Department says this provision has already allowed investigators to search the houses of drug dealers and other criminals without providing notice that might have jeopardized an investigation. Investigators still have to explain why they want to delay notice, and must eventually tell the target about the search.

Critics say that investigators already had the power to conduct secret searches in counterterror and counterespionage probes. The Patriot Act, they say, authorized the use of this technique for any crime, no matter how minor. They say that "sneak and peek" searches should be narrowly limited to cases in which an investigation would be seriously jeopardized by immediate notice. Legislation to cut off funding for such searches passed the House in 2003.

This provision does not face a sunset as other controversial provisions do. However, under the terms of the deal reached by Senate negotiators and the White House, law-enforcement officials would be required to notify targets within 30 days of the execution of a "sneak and peak" warrant, with extensions of up to 90 days.

Material Support

The antiterrorism law passed in 1996, in the aftermath of the Oklahoma City bombing, outlawed providing "material support" to foreign terrorist organizations, and expanded the definition of support to include "personnel" and "training." Section 805 of the Patriot Act extended that ban to "expert advice or assistance."

The Justice Department has said this expansion is critical to cutting off the networks of support that make terrorism possible. But many legal scholars -- and even some judges -- contend the provision is vague. They say it will lead to guilt by association and might criminalize unwitting contact with a terrorist group.

Opponents also argue that it stifles free speech, by raising fears that any charitable contribution could somehow be linked to a terrorist group by the Justice Department, and then construed as "material support." Courts have differed on the constitutionality of these efforts to cut off the "lifeblood" of terrorism. Some have ruled they are unconstitutionally vague, others have upheld these laws. In response, Congress tried to tighten the definitions in the 2004 Intelligence Reform and Terror Prevention Act. But the language in that law is also being challenged in court.

National Security Letters

Originating in the 1970s, National Security Letters are a type of administrative subpoena designed to allow the FBI to access the records of people suspected of being foreign agents. Section 505 of the Patriot Act expanded the FBI's ability to use these subpoenas: FBI agents now only have to state that the information sought is "relevant" to a national security investigation in order to obtain sensitive financial, communications and other personal records. The letters are issued by FBI field offices and are not subject to judicial oversight. Recipients of these letters are under a gag order.

The Justice Department says National Security Letters are a vital tool in the war on terrorism, giving FBI agents the ability to quickly find and pursue leads in anti-terrorism investigations. But critics say these administrative subpoenas violate Fourth Amendment rights against unreasonable searches and seizures, allowing the FBI to collect information on citizens who are not accused of any wrongdoing.

Supporters say there is no evidence that the FBI has abused these orders. Critics note that the Justice Department does not keep detailed records on the use of NSLs, and most records that do exist are classified, so there's no way to know for sure if abuses have occurred.

The deal reached by Senate negotiators and the White House makes some modifications to the use of National Security Letters. The changes clarify that most libraries -- those that act in traditional roles, such as lending books and providing Internet access -- will not be subject to letters that demand information about suspected terrorists. However, libraries that act as an Internet service provider will still be subject to these subpoenas.

The deal also requires public reporting on the use of National Security Letters, as well as audits of their use by the Justice Department's inspector general. It establishes a right to challenge the gag orders imposed on recipients of these letters -- though only after a year has passed. In addition, the deal clarifies that people who receive a National Security Letter do not have to tell the FBI if they consult with an attorney.