USA PATRIOT Act, Title II - Commentary - Electronic Frontier Foundation

Electronic Frontier Foundation

The EFF has been scathing in its criticism of the Patriot Act. They have stated that "while containing some sections that seem appropriate—providing for victims of the September 11 attacks, increasing translation facilities and increasing forensic cybercrime capabilities—it seems clear that the vast majority of the sections included were not carefully studied by Congress, nor was sufficient time taken to debate it or to hear testimony from experts outside of law enforcement in the fields where it makes major changes" and that " are aimed at nonviolent, domestic crime... although many of the provisions facially appear aimed at terrorism, the Government made no showing that the reasons they failed to detect the planning of the recent attacks or any other terrorist attacks were the civil liberties compromised with the passage of PATRIOT." They have also criticised the addition of computer crimes to the list of acts deemed to be terrorist related.

The EFF have criticised:

• Section 201, in combination with section 805 which deals with the material support of terrorism. The EFF believes that U.S. citizens should be allowed to support an organisation deemed as terrorist, if only to support them in non-terrorist activities. One example they cite of potential problems with section 805 is that citizens would not have been able to support the African National Congress (ANC) during apartheid, as they believe they would be classed as a terrorist organisation. Further examples are of a humanitarian social worker being unable to train Hamas members how to care for civilian children orphaned in the conflict between Israelis and Palestinians or a lawyer could not teach IRA members about international law, or peace workers offering training in effective peace negotiations or how to petition the United Nations regarding human rights abuses. The EFF, however, does not oppose section 201 on its own and believes that the section that should be repealed is section 805.
• Section 202 and section 217, which both deal with the approval of intercept orders for the investigation of computer crimes. The EFF believes that this section should sunset because the Congress passed the section without having to "cite even a single instance in which a computer-crime investigation—much less a terrorism investigation—had been hindered due to lack of surveillance authority."
• Section 204, which amended FISA to allow the acquisition of foreign intelligence information from non-U.S. source via a variety of measures, has been criticised as removing safeguards against unchecked surveillance. The EFF has stated that "Congress forgot to clarify that the US could also ignore pen-trap laws when the information is gathered outside the country". They hold that it shows that "204 really clarified was just how bad the rest of the law was even before the USA PATRIOT Act passed, and how government surveillance of international communications is dangerously unregulated", and cite ECHELON as an example of a system out of control. Section 204 modified 18 U.S.C. § 2511(2)(f) to include chapter 206 of the US Code (which deals with the regulation of pen registers and trap and trace devices) and includes electronic devices in the list of devices that agencies can intercept communications. The section in contention states that:

  Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934 shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

The EFF believe that the Patriot Act should be repealed to fix what they say are abuses in the system. They believe that "strong public opposition to Section 204's expansion of international surveillance authority could send a message to Congress that the rest of the law needs fixing."

• Section 206, which allows for the roving surveillance of targets, and allows a government agency to require full assistance to perform such surveillance. The EFF objects to the law because they believe it "gives the FBI a 'blank check' to violate the communications privacy of countless innocent Americans". They believe that because there is a lower legal standard for FISA wiretaps it will lead to abuses of the fourth amendment rights of U.S. citizens. The EFF states that "the FBI can wiretap every single phone line, mobile communications device or Internet connection that a suspect might be using, without ever having to identify the suspect by name... for up to a year." The section in question, 205, amended 50 U.S.C. § 1805(c)(2)(B) by inserting 'or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after 'specified person'. It now reads:

  that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance

Section 207 is the section that allows for extensions of up to a year for surveillance of agents of a foreign power (and not U.S. citizens).

• Section 207 extended the duration of surveillance orders against agents of a foreign power from 45 days to 90 days, and physical search orders to up to 120 days, with court extensions for up to a period of one year. The EFF believe that criminal wiretaps were generous enough already, and there was no need to increase the duration of surveillance. They also believe that there is a lower legal standard for probable cause for FISA based surveillance orders and that the section dangerously removes safeguards against the abuse of such orders. However, the extensions to the duration of FISA surveillance orders detailed in section 207 only applies to orders taken out against foreign agents, and not to U.S. citizens. The EFF believes that:

PATRIOT 207's extension of the FISA time limits is an unnecessary expansion of power with only one clear "benefit": it reduces the amount of paperwork the FBI has to do in order to maintain continuous surveillance. However, that paperwork is far from busy work—it's a procedural check on government surveillance required by the Constitution. Needlessly reducing such checks on secret police power doesn't make us safer from terrorism. Instead, it makes us less safe from government abuse of that power.

• Section 209, which removed the need for the government to apply for a Title III wiretap order to open voicemail. The EFF points out that to gain access to voicemail an order will now be based on the Electronic Communications Privacy Act (ECPA), which they say gives much less "protection from government spying". They state the following:

  • Before PATRIOT, the FBI could gain access to your voice mail only by showing facts to a judge that demonstrate "probable cause" to believe that you are committing a crime. Now it need only demonstrate "reasonable grounds" for the search to get a court order—or, if it uses a subpoena, mere "relevance" to an investigation.
  • Before PATRIOT, the FBI eventually had to notify you if it listened to your voice mail messages. Now if they use a search warrant, the only way you'll find out is if the FBI uses your voice mail against you in court.
  • Before PATRIOT, the FBI could listen to your voice mail only if you were suspected of one of a limited number of serious crimes. Now it can gain access to your voice mail messages for any kind of criminal investigation whatsoever.
  • Before PATRIOT, if the FBI listened to your voice mail illegally, it couldn't use the messages as evidence against you—this is the so-called exclusionary rule. But the ECPA has no such rule, so even if the FBI gains access to your voice mail in violation of the statute, it can freely use it as evidence against you.

  In stripping these key privacy protections from your voice mail, PATRIOT is in possible violation of the Fourth Amendment to the U.S. Constitution.

• Section 212, which allows the emergency disclosure of electronic communications to protect life and limb, because they believe that the an ISP or phone company should not be able hand over an individual's private records and messages, without their consent or knowledge, to any law enforcement agent on the belief that there would be immediate danger of death or serious physical injury required it to do so. They further protest section 225 of the Homeland Security Act of 2002 (otherwise known as the Cyber Security Enhancement Act of 2002, which repealed and replaced section 212 of the Patriot Act), as they believe that this expands the Patriot Act's section 212.
• Section 214, which amended the parts of FISA that deal with pen registers and trap and trace devices, because they believe that originally under FISA, court orders brought before the court were limited to the investigation of foreign threats to national security. They believe that the amendment broadens this to include U.S. citizens and "there's no way for citizens to know how often FISA pen-traps are authorized, whether and to what extent they're being used to spy on Internet communications, or how the court interprets the distinction between communications content and non-content when it comes to Internet communications." They also criticise the amendment for being too vague in specifying what can and can't be trapped (trap and trace and pen registers are only meant to determine data about the nature of communications, not the contents of the communications themselves).
• Section 215, possibly one of the most controversial sections of the Patriot Act because it expands the ability of a government agency to gain access to records and other items under FISA—though investigations must not be performed on U.S. citizens who are carrying out activities protected by the First Amendment to the Constitution of the United States. The EFF believe that it allows the U.S. government to violate the 4th amendment rights of U.S. citizens to privacy, without even having to show probable cause that the records are needed in the investigation. They have stated that:

  ...under Section 215 the FBI can investigate United States persons (citizens and legal residents) based at least in part on their exercise of First Amendment rights, and can investigate non-U.S. persons based solely on their free speech activities or religious practices. You could be investigated based on the political or religious meetings you attend, the websites you visit or even the books that you read. As a result, Americans may be chilled from exercising these Constitutional rights. Already, attendance at and donations to mosques have dropped significantly, as many Muslims reasonably fear that they will be targeted for investigation based solely on their religious beliefs.

The EFF also objects to the fact that a FISA surveillance order leaves a U.S. citizen with no means to go to court and challenge its legality.

• Section 220, which gives the power to Federal courts to issue nationwide service of search warrants for electronic surveillance. The EFF believe that it should not have been included into the Patriot Act as it deals with criminal cases as well as dealing with terrorism, something they believe that should not have been specified in the Act, "despite the fact that PATRIOT was sold to the American public as a necessary anti-terrorism measure." They believe that agencies will be able to "'shop' for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, using only those judges least likely to say no—even if the warrant doesn't satisfy the strict requirements of the Fourth Amendment to the Constitution", and that it reduces the likelihood that smaller ISPs or phone companies will try to protect the privacy of their clients by challenging the warrant in court — their reasoning is that "a small San Francisco ISP served with such a warrant is unlikely to have the resources to appear before the New York court that issued it." They believe that this is bad because only the communications provider will be able to challenge the warrant as only they will know about it—many warrants are issued ex parte, which means that the party it is made out against will not need to be present when the order is issued.
• Section 223, which allows for civil liability against those who make unauthorised disclosures of communication. According to the EFF they originally praised this section, however they now believe that it is a "a legislative trojan horse the few checks and balances that 223 obviously added to the law blinded us to the ones it subtly removed." The EFF's reasoning is as follows:

  • You can no longer sue the government for "intentional" violations of the law, like you can sue everyone else. Instead, the violation has to be "willful," a much higher standard.
  • Before, you could get a trial in front of a jury if you sued the government. Now, suits against the government are heard only by a judge.
  • Unlike with any other defendant, if you want to sue the federal government for illegal wiretapping you have to first go through an administrative procedure with the agency that did the wiretapping. That means, essentially, that you have to politely complain to the illegal wiretappers and tip them off to your legal strategy, and then wait for a while as they decide whether to do anything about it before you can sue them in court.
  • Before PATRIOT, in addition to being able to sue for money damages, you could sue for declaratory relief from a judge. For example, an Internet service provider could ask the court to declare that a particular type of wiretapping that the government wants to do on its network is illegal. One could also sue for an injunction from the court, ordering that any illegal wiretapping stop. PATRIOT section 223 significantly reduced a judge's ability to remedy unlawful surveillance, making it so you can only sue the government for money damages. This means, for example, that no one could sue the government to stop an ongoing illegal wiretap. At best, one could sue for the government to pay damages while the illegal tap continued!

• Section 225, which gives legal immunity to those who assist the government in undertaking surveillance that is in accordance with a court order or request for emergency assistance. The EFF believe that with "the lack of any procedure to challenge a FISA order, the never-ending gag order that forever bans you from telling anyone, the secret court that won't listen to your arguments—it's just another incentive for ISPs and phone companies to bend to the demands of the Justice Department or the FISA Court, even when the demand is legally questionable."