Patriot Act


The Patriot Act is legislation passed in 2001 to improve the abilities of U.S. law enforcement to detect and deter terrorism. The act’s official title is, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” or USA-PATRIOT. Though the Patriot Act was modified in 2015 to help ensure the Constitutional rights of ordinary Americans, some provisions of the law remain controversial.


Details of the Patriot Act

Many of the Patriot Act’s requirements were slated to expire in 2005. Whether to renew the act was passionately argued in the U.S. House of Representatives and the Senate. Many only voted for it because it was set to expire.

Despite continued civil liberties and privacy concerns, President Bush signed the USA Patriot and Terrorism Reauthorization Act on March 9, 2006.

Patriot Act Facts


Last night(?), despite a strong majority vote in favor of the bill, the House of Representatives fell seven votes short of the two-thirds they needed to suspend the rules and pass three key counter terrorism amendments to the Foreign Intelligence Surveillance Act (FISA). Many of the headlines you will read today will say things like “ Patriot Act Extension Fails in House,” but the reality is that much of the PATRIOT Act was already permanently enacted. Of the three amendments to FISA at issue in last night's vote, two were part of the original PATRIOT Act, one was part of the Intelligence Reform and Terrorism Prevention Act of 2004, and all are set to expire at the end of this month.


Eight of the 26 Republican no votes came from freshmen who, Politico reports, “felt completely uninformed by their leadership.” Representative Todd Rokita (R‑IN), who voted for the bill, even told Politico that he “didn't know anything about [the vote] until today.” The three amendments voted on last night have been extensively modified over the years and now include significant new safeguards, including substantial court oversight. They include:


Roving Surveillance Authority: Roving wiretaps have been used routinely by domestic law enforcement in standard criminal cases since the mid-1980s. However, national security agents did not have this garden-variety investigative tool until the passage of the PATRIOT Act in 2001. Section 206 of the PATRIOT Act allows law enforcement, after approval from the FISA court, to track a suspect as he moves from cell phone to cell phone. The government must first prove that there is “probable cause” to believe that the target is a foreign power or an agent of a foreign power. It further requires continuous monitoring by the FISA court and substantial reporting requirements to that Court by the government.


Business Record Orders: Domestic law enforcement, working with local prosecutors, routinely rely on business records through the course of their investigations, oftentimes through the use of a subpoena. However, national security agents did not have the same authority to acquire similar evidence prior to the passage of Section 215 of the PATRIOT Act. This provision allows law enforcement, with approval from the FISA court, to require disclosure of documents and other records from businesses and other institutions (third parties) without a suspect's knowledge. The third-party recipients of 215 orders can even appeal any order to the FISA court.


The Lone Wolf Provision: Section 6001 of the Intelligence Reform and Terrorism Prevention Act allows law enforcement to track non-U.S. citizens acting alone to commit acts of terrorism that are not connected to an organized terrorist group or other foreign power. While the FBI has confirmed that this section has never actually been used, it needs to be available if the situation arises where a lone individual may seek to do harm to the United States.


At least 36 known terrorist plots have been foiled since 9/11. The United States continues to face a serious threat of terrorism. National security investigators continue to need the above authorities to track down terror leads and dismantle plots before the public is any danger. Opponents of these provisions have produced little evidence of any PATRIOT Act misuse. All of the provisions above are subject to routine oversight by both the FISA court and Congress, and no single provision of the PATRIOT Act has ever been found unconstitutional. Congress should not let the sunset provisions expire and should instead seek permanent authorization.


But what have you lost? There is now an agency that is not restricted by the Bill of Rights. Good if it is used against “bad guys” and bad if it is used against “you.” Throughout history draconian acts have been put in place to “protect” people and throughout history they are eventually turned to use “against” the people by nefarious individuals to gain power. Do you really think it won't happen here? This could easily be a planned step toward globalism. With no personal rights, whoever is in charge can do what they want.



9 Liberties Lost Since 9/11


1. The liberty to not be spied upon: Essential to a free society — at least as the founders of the United States saw it — was the freedom to be left alone. In the not too distant past, government agencies suspicious of citizens had to obtain warrants to investigate private citizens. They had to prove to a judge why they deserved to violate a person's sacrosanct privacy from the State. Though surveillance programs were in place long before 9/11, the tragedy enabled much more far-reaching impositions. Multiple federal agencies — most notably the NSA — are enabled to surveil citizens, all the time — all around the world. The government's paranoid desire for total surveillance has only grown since 9/11. The FBI, which built the NSA's foundation for dragnet spying, continuously throws temper tantrums over its inability to spy on encrypted communications. The Department of “Justice” argued that it should have access to all Americans' emails. A separate court recently ruled that a case challenging NSA bulk data collection could not move forward because the plaintiff could not prove — due to government secrecy — that he was being surveilled.

2. The liberty to not be harassed by law enforcement: The federal government's total surveillance state is a direct consequence of 9/11 — or rather, the political exploitation of it. However, at the local level, police departments not only conduct their own invasive spying with secret technology provided by the federal government — they pose a far greater danger. Where police officers were once trusted to protect life, they now threaten it. Currently, the risk of being killed by a police officer is anywhere from eight to 55 times greater than being killed by a terrorist. In 2015, police are on track to kill 1,100 Americans — and since 9/11, have killed more than died that day. This year, it was revealed that Chicago's Homan Square operated as a black site without due process but replete with torture. Other violations by police, constitutionally speaking, include a basic protection against unwarranted searches and seizures. This makes unauthorized cavity searches on the side of the road and civil asset forfeiture — a policy by which police have stolen millions of dollars from unaccused citizens — an egregious seizure of the freedoms Americans still drunkenly celebrate on national holidays. Checkpoints, anyone?

3. The freedom of movement and travel without being treated like a criminal: Considering how traumatized the collective American populace continues to be by incessant, repeated clips of two planes flying into the World Trade Center, it is unsurprising that the Transportation Security Administration (TSA), formed after 9/11, is accepted as a vital element of modern society. Millions of Americans routinely huddle in cramped airport security lines, removing their shoes and flashing their private parts to security agents via X-ray machines so as to avoid more invasive gropings. Recently, two agents were caught tag-teaming to grope attractive women. Theft of passenger belongings runs rampant among officers. Racial profiling is allowed by the Department of Homeland Security, which oversees the TSA. Unsurprisingly, these practices fail to find terrorists 95% of the time. Meanwhile, children in wheelchairs, the elderly, and otherwise innocent Americans are forced to endure what would amount to sexual harassment in any other environment. But rest assured, if travelers pay a special fee, they can bypass security lines. For your safety.


4. Freedom of Speech: While no one (that the government admits to) has been black-bagged for criticizing the government yet, the State has spent years incrementally criminalizing this fundamental right. In addition to designating anti-government activists, hippie communes, and Americans with seed libraries as potential terrorists, the federal government has made a habit of punishing individuals who attempt to shed light on the government's crimes. From Bradley (Chelsea) Manning to Edward Snowden and countless others, those who attempt to inform the American people of the atrocities their government commits are promptly silenced. Though the story received little mainstream attention, the military's new operating procedures condone killing journalists. Further, the people's right to free speech has been widely suppressed. During the Bush years, protesters were cordoned off into “free speech zones” to air their grievances. Today, protests are heavily patrolled by police, who do not shy away from pestering — if not abusing — people peacefully exercising their most essential constitutional right.


5. The liberty to simply know what the government does: When President Obama campaigned for the presidency in 2008, he decried George W. Bush's cloak of secrecy shrouding government actions. Obama vowed to be more transparent, to make the government truly work for the people by allowing them to know what it does. His presidency is almost over, but any echo of that sentiment has been silenced. His administration, self-designated the “most transparent in history,” is one of the least transparent and denies more Freedom of Information Act requests than ever. Lawmakers refuse to reveal details of foreign policy, surveillance, and more, citing “national security” as a blanket excuse. This justification is how they perpetuated continued warrantless spying even after the Patriot Act expired. It is how they have instigated perpetual war with little explanation beyond “grave threats” to the American people. To say more would be to endanger the people further, of course. Whenever politicians feel threatened by real questions, they need only parrot the need for “public safety” and drum up memories of 9/11 to shirk accountability.


6. The liberty to not be harassed by the military in your own home: Many people view the third amendment as archaic. The Revolutionary War is long over and soldiers are no longer “quartered.” However, one specific program — mutated after 9/11 — allows this violation on a daily basis. Following last year's protests in Ferguson against police brutality, the Pentagon's 1033 program has faced intense scrutiny for arming local police with high-powered military gear, from armored vehicles to battle regalia. This program has emboldened SWAT teams and other local police — paramilitary wings of law enforcement armed to the teeth — to increasingly raid the homes of private citizens. “But they're criminals!” loyalists might cry. But what about when they aren't? Often, SWAT teams raid the wrong addresses, but even when they are in the right place, they inflict everything from beatings and murder on non-violent, often innocent citizens to shooting family pets. The 1033 program, intended to help fight the Drug War, increased in power after 9/11 — when its stated goal shifted toward preventing terrorism.


7. The right to a fair trial: When the near-mythical “founding fathers” crafted the Constitution, one of their greatest revolutions was ensuring fair trials to the accused. This banned cruel and unusual punishment while ensuring a speedy trial where the defendant was considered innocent until proven guilty — not the other way around, as had been practiced by despotic regimes throughout human history. However, this right to a fair trial has been increasingly eroded by autocratic elements within the so-called justice system, especially since 9/11. An Irish judge recently refused to extradite a terror suspect to the United States, citing fears he would endure cruel and unusual punishment. “Death by firing squad!” many patriots mourning 9/11 might chant. He is a terrorist, after all, and “innocent until proven guilty” is a moniker of the weak and those hell-bent on seeing Americans murdered.


But what about the American citizens presumed guilty before an actual verdict is reached? Prosecutors have been criticized for exercising racism in jury selection, biasing courts in favor of conviction. One mentally ill black man died languishing away in prison for months — awaiting a (non-speedy) trial for allegedly stealing less than five dollars worth of snacks from a convenience store. In more high-profile cases, the government and media go out of their way to ensure defendants are presumed guilty long before their trials start. Such was the case with Ross Ulbricht (where FBI agents were found to have committed criminal acts during investigations and key evidence was suppressed). Chelsea Manning and others have faced similar fates. The government also actively campaigns against activists attempting to educate jurors about their rights. None of these violations of due process compete with the indefinite detention provision of the 2012-present National Defense Authorization Act (NDAA). Language found in Section 1021(b)(2) of the NDAA allows the president to order the indefinite detention of U.S. citizens without charge or trial, merely for being suspected of being a threat to national security.


8. The liberty of owning your body: Though not codified in the Constitution, a basic premise of liberty is self-ownership — that free individuals may choose what they want to do with and put in their bodies. Though the Drug War has been in full swing for decades, the events of 9/11 allowed the government to regulate people's body chemistry more heavily. While the Patriot Act is widely associated with unwarranted surveillance — as it should be — it was used overwhelmingly to prosecute non-violent drug “crimes” and has helped to create the world's largest prison population, because…freedom?


9. Economic liberty: While the state places many restrictions on economic freedom, it has done so for centuries through taxation, fees, fines, and regulations that favor corporations (such as the recent Trans-Pacific Partnership). Still, these policies have not been contingent on the 9/11 terror attacks. What 9/11 has allowed, however, are increased piles of tax dollars to fund military adventures throughout the world. Though the military chronically eats up trillions of dollars, every year it demands more money — and nearly every year it gets it. Without the jarring images of 9/11 branded into Americans' brains, the military would have a much more difficult time securing funding. Those who disagree with such expenditures (whether out of fiscal responsibility or outrage at endless violence) must square off with the IRS — an entity more terrifying to most Americans than the government's more murderous agencies.


While the events that transpired on 9/11 should never be forgotten — and should be commemorated — often, the nationalistic grandstanding that comes along with mourning the dead removes any possibility to mourn the freedoms lost — or the very literal lost and tortured lives of individuals around the world subjected to the aggressive foreign policy enabled by 9/11. While the government is categorically to blame for these violations, it is an unfortunate fact that Americans are guilty of creating an environment where crimes against humanity go unchecked and nearly every element of American life is regulated and surveilled. By allowing themselves to be manipulated by constant fear-mongering, Americans have allowed — if not applauded — this confiscation of their freedoms.


Ten Years After the Patriot Act, a Look at Three of the Most Dangerous Provisions Affecting Ordinary Americans


1. SECTION 215 – “ANY TANGIBLE THING”


Under this provision, the FBI can obtain secret court orders for business records and other “tangible things” so long as the FBI says that the records are sought "for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities." The Foreign Intelligence Surveillance Court must issue the order if the FBI so certifies, even when there are no facts to back it up. These “things” can include basically anything—driver’s license records, hotel records, car-rental records, apartment-leasing records, credit card records, books, documents, Internet history, and more. Adding insult to injury, Section 215 orders come with a "gag " prohibiting the recipient from telling anyone, ever, that they received one.


As the New York Times reported, the government may now be using Section 215 orders to obtain “private information about people who have no link to a terrorism or espionage case.” The Justice Department has refused to disclose how they are interpreting the provision, but we do have some indication of how they are using Section 215. While not going into detail, Senator Mark Udall indicated the FBI believes it to allows them “unfettered” access to innocent Americans’ private data, like “a cellphone company’s phone records” in bulk form. The government’s use of these secret orders is sharply increasing -- from 21 orders in 2009 to 96 orders in 2010, an increase of over 400% -- and according to a brand new report from the Washington Post, 80% of those requests are for Internet records.


Today, EFF sued the Justice Department to turn over records related to the government’s secret interpretation and use of Section 215, regarding which Senator Ron Wyden, like Senator Udall, has offered ominous warnings: "When the American people find out about how their government has secretly interpreted the Patriot Act,” said Wyden on the Senate floor in May, “they are going to be stunned and they are going to be angry.”



2. NATIONAL SECURITY LETTERS


Among the most used -- and outright frightening -- provisions in the PATRIOT Act are those that enhanced so-called National Security Letters (NSLs). The FBI can issue NSLs itself, without a court order, and demand a variety of records, from phone records to bank account information to Internet activity. As with 215 orders, recipients are gagged from revealing the orders to anyone.


While NSLs existed prior to 2001, they were infrequently used. The PATRIOT Act lowered the standard making it easier for the FBI to use NSLs to obtain the records of innocent people with no direct link to terrorists or spies, and their use skyrocketed. According to the ACLU’s report on PATRIOT Act abuses, there were 8,500 NSLs issued in 2000 but approximately 192,000 issued between 2003-2006. All of these NSL’s led to one terror conviction, and in that case, the NSL wasn’t even needed.


Not surprisingly, EFF FOIA requests have found abuse of their NSL authority: “mistakes” that led to getting information on the wrong people, ISPs handing over extra or wrong information, and dozens of “exigent letters” that “circumvented the law and violated FBI guidelines and policies.” EFF has successfully challenged the NSL gag orders in multiple cases as unconstitutional under the First Amendment, but the overall scheme still survives to this day.



3. SNEAK AND PEEK WARRANTS


Section 213 of the PATRIOT Act normalized “sneak-and-peek” warrants. These allow law enforcement to raid a suspects house without notifying the recipient of the seizure for months. These orders usually don't authorize the government to actually seize any property — but that won't stop them from poking around your computers. Again, sneak-and-peek warrants could be used for any investigation, even if the crime was only a misdemeanor.


From 2006-2009, sneak-and-peek warrants were used a total of 1,755 times. Only fifteen of those cases—a microscopic 0.8%—involved terrorism. The rest were used in cases involving drugs or fraud.


These uses and abuses of the PATRIOT Act against ordinary Americans are only the tip of the iceberg. EFF has repeatedly documented how federal law enforcement agencies have abused our nation’s broken secrecy system to hide specific instances of illegal and unconstitutional conduct related to the PATRIOT Act. EFF’s Freedom of Information Act requests have painted a picture of “an [FBI] engaged in excessive illegal intelligence gathering.”


After ten years, it’s crystal clear that the “emergency” measure sold as a necessary step in the fight against terrorism is being used routinely to violate the privacy of regular people in non-terrorism cases, threatening the Constitutional rights of every one of us. And after ten years, EFF is even more dedicated to fighting against PATRIOT overreach, both in Congress and the courts. Help us in that fight by becoming an EFF member, so that we can work together in making the next ten years better for civil liberties than the last.


More on the Patriot Act

Less than 1% of the uses for the Patriot Act are for national security. When will it be used to imprison you?