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Fourth Amendment Loopholes and the PATRIOT Act’s Legacy

by Anthony W. Accurso

Over two decades have passed since the infamous PATRIOT Act was passed in response to the terror attacks against the U.S. on September 11, 2001. Several of the provisions of that law persist to this day, including egregious exceptions to requirements under the Fourth Amendment.

After the terror attacks on 9/11, there was great pressure on the U.S. government to respond, and part of the response involved Congress enacting legislation to change the way security agencies are empowered to detect and intervene against terror threats.

Thus followed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“USA PATRIOT”), though it would later simply be referred to as the PATRIOT Act. It was passed overwhelmingly by both chambers of Congress, with only 66 House representatives and one senator —Russ Feingold (D-WI) — voting against it. It was then signed into law on October 26, 2011, by George W. Bush.

Though the PATRIOT Act created some new provisions for combatting terrorism, many provisions were mere modifications of tools already available to law enforcement. Law enforcement groups have long lobbied to remove “inconvenient” barriers to detecting and prosecuting crimes, despite these barriers being rooted in the first ten amendments to the U.S. Constitution, also known as the Bill of Rights.

Then-Senator Joseph R. Biden — regarded as a “law and order” senator who had been pushing for various expansions to police authority since the bombing of the Oklahoma City federal building in 1995 — bragged that they “sent up ... my bill” when the PATRIOT Act was placed before Congress for a vote.

Thus, while the law was passed in response to the attacks on 9/11, many of its provisions were written well before that as a veritable wish list of expanded police authority. These expansions were criticized as violations of the Fourth Amendment’s warrant requirements and generally invasive to the privacy of ordinary Americans, forming the basis of dissent by legislators like Senator Feingold.

One of the provisions that received much coverage was referred to as new authorization for “national security letters” — warrantless demands for records relating to investigations, both bypassing courts and requiring the recipient to disclose records without notifying the subject of the request. But such letters were already in use, with various iterations authorized by the 1978 Right to Financial Privacy Act (“RFPA”), the 1986 Electronic Communications Privacy Act (“ECPA”), and the Fair Credit Reporting Act (“FCRA,” originally passed in 1968, but the provision in question was amended later). Certain other business records requests were also authorized by the 1978 Foreign Intelligence Surveillance Act (“FISA”).

Former FBI agent Michael J. Woods wrote in 2005 that, prior to passage of the PATRIOT Act, the FBI “had five separate legal authorities that addressed the need to compel production of transactional information in counterintelligence investigations,” including “three types of national security letters (under the RFPA, ECPA, and FCRA) ... and the FISA business records authority.” After its passage, the PATRIOT Act provided for additional national security letters specifically for use by the FBI under § 505.

The law further expanded the authority of agents to petition FISA courts for “business records.” This category was previously limited to records captured by common carriers (i.e., providers of public accommodation, storage, and vehicle rental operations) but afterwards included “any tangible thing,” vastly broadening the scope of records discoverable through such courts. Also, the only requirement for obtaining these records is the application must specify that “the records concerned are sought for an authorized investigation.”

Agent Woods wrote that this change to the FISA courts meant that the reviewing “judge has no meaningful discretion in considering a [records] application,” because the standard amounted to “[b]ecause
we say so.”

The standard for obtaining FISA tracking warrants was also amended, changed from tracking a foreign national being the “primary purpose” to merely a “significant purpose.” As if FISA courts were not already deferential enough to intelligence agencies, the limits on obtaining these warrants were essentially removed.

These amendments to FISA courts were especially troubling given that, though FISA warrants are supposed to target foreign nationals only, they often resulted in the surveillance of U.S. citizens who were not connected to any criminal activity. Further, these lowered requirements paved the way for rampant abuses by federal agencies, especially the FBI.

A report issued in 2006 by the Department of Justice (“DOJ”) Office of the Inspector General (“OIG”) concluded that, between 2000 and 2001, 75 “errors” were made in FISA tracking requests due to the target not actually being connected to foreign terrorist groups.

A similar report in 2007 from the same office found that “FBI agents produced a similar pattern of exceeding their authority with national security letters, including aiming them at the wrong people, taking things the national security letters didn’t specify, and executing them past the stated time period in the request,” according to Reason.com.

It is not an accident the laws authorizing these warrantless records requests all originated after 1976 and gradually came to encompass broader swaths of material. The Supreme Court handed down its decision that year in United States v. Miller, 425 U.S. 435 (1976), in which it held that citizens don’t have a privacy right regarding records they willingly divulge to a third party (i.e., bank records) — the Third-Party Doctrine. This ruling opened the floodgates for police to access vast troves of data gathered by companies about their customers.

The PATRIOT Act also authorized changes to surveillance of U.S. citizens. The “lone wolf” provision was added to the law in 2004, and it allows law enforcement to track terror suspects who are not affiliated with any known foreign organization or government. Though, at least as of late 2021, the government claims this authorization has never been used.

Citizens suspected of criminal activity were previously subject to surveillance via wiretaps, though each warrant specified which communication method(s) were subject to surveillance — because the Fourth Amendment requires a legal warrant to “particularly describ[e] the place to be searched.” But the PATRIOT Act created the § 206 “roving wiretap,” which allows for continued surveillance, even when the subject of the surveillance changes communications methods.

Formerly, if a citizen transported more than $10,000 outside of the U.S. without notifying authorities, this was handled as a mere paperwork violation. After passage of the law, offenders were subject to seizure of the money under § 371 and could face charges of money laundering.

Alarmingly, the PATRIOT Act further changed the way the Constitution has traditionally been seen to cover noncitizen residents. Under the law, such persons may be detained indefinitely without ever being convicted of a crime.

One of the most controversial provisions includes § 213 “sneak and peek” warrants. Normal procedure involves notice to individuals subject to a search warrant. However, § 213 removes the notice requirement, substituting it with notifying the target “within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.”

Due to warrant tracking and reporting requirements imposed on the courts by Congress (unrelated to the PATRIOT Act), yearly breakdowns are produced about various warrants authorized by courts and which crimes they are connected to.

Despite authorizing “sneak and peek” warrants under the guise of catching terrorists, reported statistics show they are overwhelmingly used in narcotics cases. Between 2009 and 2013, 70% of these warrants were issued in drug cases, while terrorism-related charges accounted for less than 1% of such warrants. For 2020, it was 71% for narcotics, and terrorism wasn’t even listed as a category due to the infrequency of such usage.

There was much talk during the passing of the PATRIOT Act about “information sharing,” specifically between intelligence and law enforcement agencies (i.e., between the CIA and the FBI). But the American Civil Liberties Union wrote on their website that “the Patriot Act is not the reason for improvements in information sharing ... FISA information, properly obtained for foreign intelligence purposes, could always be shared with criminal investigators if relevant to crime. Rather, the Patriot Act is about making it easier to use FISA as an end-run around the Fourth Amendment.”

Recall that the PATRIOT Act lowered the requirements for FISA court warrants and that government agents have — according to the DOJ’s OIG — abused this process to essentially spy on U.S. citizens.

ABC News reported in 2008 that NSA employees were using FISA wiretaps to listen to U.S. troops in Baghdad “calling home to the [U.S.], talking to their spouses, sometimes their girlfriends,” with some agents considering it a perk of their NSA job to overhear “personal, private things with Americans who are not in any way, shape or form associated with anything to do with terrorism.”

Due to the controversial nature of many of the PATRIOT Act’s provisions, many were subject to reauthorization every five years. The “roving wiretap” and “lone wolf” provisions were allowed to expire, as was the re-designation of “business records” to include “any tangible thing.”

In 2015, the USA FREEDOM Act altered the way communications companies were required to provide data to agencies like the NSA, such that telecoms no longer turn over all their data but rather “run searches for the NSA on demand.”

The “sneak and peek” warrants are still allowed (and frequently used in non-terror contexts), but each is subject to reauthorization every 30 days.

While it is helpful that some of these relaxed limits on the intrusive provisions of the law were allowed to expire, there is, and always has been, an attitude held by some officials that any check on investigative power is too much. Despite the essentially rubber-stamp nature of FISA courts, Bush administration DOJ official David Addington openly remarked that they were “one bomb away from getting rid of that obnoxious court.”

The PATRIOT Act defined “domestic terror” as any criminal activity that “involves acts dangerous to human life” in order to “influence the policy of a government by intimidation or coercion.”

Given how broadly we have allowed for the surveillance of persons by U.S. agencies, and recent domestic unrest during the pandemic, it would pose no difficulty for law enforcement to use these tools to silence protests and other forms of political speech, such as online forums and social media. According to Reason.com, “[t]his can affect Black Lives Matter as easily as Team MAGA.”

The PATRIOT Act was not the source of the government’s interest or ability to surveil innocent U.S. citizens or to snoop on their private lives. And even though some of the law’s most odious provisions have expired, we must continue to discuss, monitor, and enact changes to state-sponsored surveillance tools that violate the intent of the Fourth Amendment. 

Source: reason.com

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