The Patriot Act & Privacy
ITS 351
Fall 2009
November 16, 2009
Cory Harrington
Jason Presutti
John Stewart
There has been much speculation as to whether the privacy issues directly and/or indirectly addressed by the 1st and 4th amendments, Freedom of speech and search and seizure issues (respectively) can be appropriately defended from intrusions enacted by the FBI through NSLs (National Security Orders) with renewed power granted them by the Patriot Act. The subject matter that I attempt to cover in this section of our group essay is thus: Can the 1st and 4th Amendments offer ample protection for citizens against the often seen as overzealous privacy invasions of the FBI due to the Patriot Act? In particular what powers and policy have been extended by the Patriot Act to allow for this. Are there any avenues of redress?
To begin National Security Letters (NSLs) are similar to subpoenas, but they pertain to requesting online information. According to a press release on the FBI’s website:
“ National Security Letter (NSL) is a letter request for information from a third party that is issued by the FBI or by other government agencies with authority to conduct national security investigations.”
I’d like to say good definition boys but I think you might have missed a couple things. Like exactly what this might actually imply. What this really represents is a way that the FBI can circumvent the need to issue a warrant or subpoena for information. Pre-Patriot Act NSLs had to be authorized by a senior FBI official located at the FBI Headquarters, Now Post-Patriot Act any head of an FBI field office can approve such a letter.[1] The FBI website lists links to webpage’s for 56 FBI field offices. Not to mention the fact that 1 National Security Letter can request information for thousands of customers (like yourself) alone. All an FBI agent must do is certify that the information to be retrieved pending the NSL is relevant to an investigation. There have been attempts made to restrict the usage of NSLs and all have been revoked.[2] Also there is no requirement of pending warrant or that they be supported by probably cause; As quoted by Judge Marrero in a U.S. District Court Case involving a National Security Letter, in a discussion for administrative subpoenas, such as National Security Letters:
“ However, because administrative subpoenas are “at best, constructive searches,” there is no requirement that they be issued pursuant to a warrant or that they be supported by probably cause. Instead, an administrative subpoena needs only to be “reasonable, “ which the Supreme Court has interpreted to mean that (1) the administrative subpoena is “within the authority of the agency;” (2) that the demand is “not too indefinite;” and (3) that the information sought is “reasonably relevant” to a proper inquiry.” ”[3]
It is also a curious note that they do not explicitly define what is meant by reasonable and ‘not too indefinite.’ Also the (1) clause “within the authority of the agency”, so basically what it tells me is that its okay as long as they can be granted power from legislation, anywhere.
There also exist other post-investigation issues that are also affected by the deployment of Post-Patriot Act National Security Letters. If we apply the policy as set forth and interpreted by the several Supreme Court cases of the 1st amendment we can see a plain intrusion on a very basic and powerful civil liberty, all in the name of “National Security.” According to a 2007 article written by Massachusetts ‘technology tort’ attorney Dr. Ronald B. Standler that the Supreme Court has inferred it provisioned by the 1st amendment that no governmental body should prohibit the disclosure of information.[4]
Until mid 2007 there was another stipulation of a post-NSL investigation there is a lingering ‘gag-order.’ Where those individuals or companies involved in relinquishing the information requested by the NSL are prohibited from speaking of the matter outside of its own context. The only ‘benefit’ that the revised nondisclosure clause affords is to make the ‘gag order’ challengeable.[5]
To briefly exemplify using one case of special interest, a NSL was used to request information from The Library Connection consortium in Connecticut. This led to a court challenge made by the Civil Liberties Union in 2005, which after a years time the “FBI abandoned their request for information.”[6] However there is still one more case involving the gag order that has not been rescinded from. In particular where the civil liberties unions filed for the unconstitutionality of the nondisclosure:
“JOHN DOE, AMERICAN CIVIL LIBERTIES UNION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs, - against - ERIC HOLDER, in his official capacity as Attorney General of the United States et al., Defendants.”
In this case the plaintiffs requested a partial summary judgment ruling that the nondisclosure provisions of the NSLs are unconstitutional. The Courts found that it is justified that the plaintiff follow the nondisclosure provision given that the Government has adequately bore its burden. In a previous case Doe vs. Ashcroft where the courts ruled that section 2709 of the Patriot Act was unconstitutional in the face of the 1st amendment in regards to freedom of speech versus the gag imposed by said provision. However, the government being over ominous while implementation of the decision was still pending the sect. 2709 was modified to the extent that the FBI official bear the burden of certifying the risk of undue harm given the absence of nondisclosure.[7] Therein setting the stage where sect. 2709 (nondisclosure) does remain challengeable but cannot be defeated on the grounds of violating 1st amendment rights given that the FBI official provide the burden of risk. This to this day remains only in stipulation that the information requested can put an individual or individuals at risk and that the official certify it pertains to the investigation. Neither needing to show pending warrant or the relevance of the information requested.
To conclude I would like to add a brief note concerning the area of contention that arises with provisions in Section 213 of the Patriot Act that seek to circumvent privacy protections as set forth by the 4th Amendment. These actions are labeled as delayed-notification ‘sneak-and-peak’ and ‘sneak-and-steal’ searches. They allow agents & law enforcement to enter your home while your not there and have a delayed notification obligation that can be given up to 30 days prior to the entrance. Also in the case of ‘sneak-and-steal’ law enforcement have the privilege of removing items as long as they deem them evidentiary.[8] Coupled with the ability to give notification after the fact this has several applications in Title II wiretap & surveillance. As well as the fact that it is contradictory in the face of the 4th amendment ‘search and seizure’ provision.
EPIC is the Electronic Privacy Information Center and it is a public interest research center that was founded in 1994. EPIC is a group that has taken a strong stance against many of the rules and amendments of the USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), particularly in the area of online privacy and personal information. Almost immediately after the Patriot Act was passed, EPIC released an analysis of the act that criticized and questioned the Act based on five main points: law enforcement agencies already possess broad powers of investigation, expansion of those powers should be based on need, new powers need to be created with a narrow and specific scope in order to protect the privacy of average citizens, the distinction between domestic law enforcement and foreign intelligence must be maintained, and expanded investigative powers should be limited to the investigation of terrorism and not made generally applicable to all criminal investigations. EPIC has criticized the Patriot Act on five sections related specifically to privacy and has rated the Obama administration thus far on its handling of privacy related issues.
The Patriot Act began as two documents, the Mobilization Against Terrorism Act [MATA] and the Anti-Terrorism Act [ATA]. After the combination, the Patriot Act itself is broken down into ten Titles, and there are many sections and subsections within each title. As discussed elsewhere in this paper, reforming those Titles has been a difficult task. EPIC has suggested several sections that they see as needing to be revised or removed in order to uphold people’s privacy. Section 101 deals with the government’s use of pen register, the ability to tap and trace, and the program Carnivore. Pen register had always been used in the collection of data regarding phone records, but the expansion of the Patriot Act allows it to include most Internet activity, such as e-mail and web history. These pieces of electronic information are so much more complex than phone numbers and cannot be viewed in the same light. As for the use of Carnivore, “because Carnivore provides the FBI with access to the communications of all subscribers of a monitored Internet Service Provider (and not just those of the court-designated target), it raises substantial privacy issues for millions of law-abiding American citizens” (EPIC). Section 106 deals with intercepting communications from “computer trespassers” on “protected computers.” This section, like many others, creates problems because of its breadth, loose definitions, and numerous exceptions. A “protected computer” is defined as one that is used in interstate commerce or communication, so it could theoretically mean any computer connected to the Internet. Section 107 expands the scope of subpoenas for records of electronic communications. IP addresses, session lengths, and methods of payment are a few of the records that are now included as able to be subpoenaed for investigations. These records are available for all investigations, not just those related to terrorism. Section 152 expands the powers of FISA, the Foreign Intelligence Surveillance Act. This sections deals particularly with roving wiretaps and potentially allow the government to breach the privacy of anyone that uses public Internet facilities at libraries or Internet cafes. Most privacy organizations agree that there must be disclosure to users when information is being monitored or recorded, but this section prohibits the provider from disclosing when monitoring is taking place. This section also contradicts the fourth amendment, as it does not “particularly describe the place to be searched.” Section 157 amends the Electronic Privacy Communications Act to allow the government access to electronic records such as banking, credit, educational, and any other records deemed necessary for counterintelligence purposes. This section is an obvious compromise of personal privacy for the sake of national security. These sections only scratch the surface of the deep privacy implications of the Patriot Act.
President Bush passed the Patriot Act in 2001. It is now eight years later and President Obama and his administration has “inherited” the existing policies of the previous administrations. On September 9, 2009, EPIC released their Privacy Report Card, which scored the Obama administration thus far on the areas of consumer privacy, medical privacy, civil liberties, and cyber security. (It should be dully noted that EPIC also conducted a poll on these same categories. The user poll came back with the Obama administration scoring an F in all four areas, with the percentages of 65%, 61%, 83%, and 68% people voting F in the respective categories). EPIC gave Obama an Incomplete for consumer privacy as the new FTC commissioners had not been announced at the time the report card was created. Obama received an A- in medical privacy for including specific language about privacy in the HI-TECH Act (Health Information Technology for Economic and Clinical Health) and for its advocacy of the creation of a national medical health information network. They received a C+ for civil liberties, as “watch lists” and no-fly lists still exist and it is yet to be fully seen what will become of the Patriot Act. Finally, Obama’s administration received a B in cyber security. This grade is because Obama has taken a pro net neutrality stance and has said [that] “cyber security will not involve mass collection or monitoring of Internet communications.” It is, however, still early in President Obama’s term of election and it is likely that many policy changes will be made in terms of Internet and personal information privacy.
A few of the biggest arguments about The PATRIOT Act stem from Title II. Title II addresses the surveillance of agents of foreign powers. Many of the sections in Title II are amendments to the Foreign Intelligence Surveillance Act (FISA). The rules for information sharing, wiretapping, search warrants, new technologies and may other surveillance techniques or laws changed.
Before 9/11 law enforcement agencies had what were called walls between them. One example is how the CIA and the FBI did not share information. The CIA had the intelligence and the FBI followed the criminals but did not have the information for the criminals that the CIA had. Many of the sections in Title II allowed information to be more
freely shared between law enforcement organizations.
Several of the concerns about the ability of the agencies sharing information are that they will share intelligence that is not relevant to terrorist activity. The PATRIOT Act was created to stifle terrorist activity, any other uses are considered abusive to the act. The reason this is a concern is the language in the section is very broad, so like any law it can be interpreted a certain way. The problem with broad language arises many times throughout the PATRIOT Act.