PATRIOT Act

Bill in Brief

Passed in the wake of 9/11, the PATRIOT Act quickly became a target for civil libertarians who said the new law went too far in increasing the government's spying powers. Civil libertarians had a chance to tweak some of the Act's provisions in 2005, when many of its sections were slated to expire, but they won few concessions in the end when the law was finally renewed in March, 2006. (WP)

From the get go, the House and Senate's 2005 debates agreed that Patriot's more controversial parts - on "sneak & peaks," library records and "National Security Letters" - had to be changed up, but the Senate was slightly more aggressive in pushing for more civil libertarian safeguards. See the chart below on the - mostly subtle - differences between the draft bills from each chamber.

Some of the nitty gritty that congressional members worked out in the final rounds of negotiation include: how much time a subpoena-ee has to wait before he can challenge a "gag order" not to talk about the subpoena publicly (last compromise: one year); clarifying that National Security Letters can't be used to get library records (although feds can still get library subpoenas under Section 215 - NYT); no longer requiring folks who get National Security Letters to tell the FBI the name of their lawyer.

Below is a guide to the controversial sections that Congress extended and/or switched up - and what was in the Senate and House versions of the bill. (Info on the changes are from the Congressional Research Service - pdf.)

Update: In a sign that the revisions to PATRIOT somewhat satisfied civil libertarians, in October 2006 the ACLU dropped a lawsuit claiming the act was unconstitutional. (WP)

Sleeping dogs will not lie: Reports in March, 2007 - and one expected in March, 2008 - that the FBI was frequently misusing National Security Letters may revive debate over the Patriot Act. (WP & LAT, WP). A September, 2007 report showed that many Americans "once removed" from terrorist suspects may have had National Security Letters used to access their documents (NYT) - while a judge ruled National Security Letters unconstitutional as
long as they imposed "gag orders" on the companies who received the
letters (WP).

NSLs revisited in '08: The House is working on a bill that would set stricter - relatively speaking - standards on issuing National Security Letters. The bill would require the FBI have "specific and articulable facts giving reason to believe that the information or records sought... pertain to a foreign power or agent of a foreign power" instead of just being "relevent" to a terrorist investigation. The automatic "gag order" on NSLs would be shortened to 30 days.

Section 206

Roving wiretap

What it does: Allows the government to get a warrant for a "roving" wiretap. It's no longer necessary to request a warrant for each phone a person uses - the government can now get a warrant to tap any phone of a person they are keeping an eye on, provided the court believes the target's actions (constantly changing hotels, for example) "thwart" an investigation. How much it's used: about once a month, or 49 times from 9/11 until March 2005. (WP)
Senate Bill House Bill
Extends though 2009. Requires that more information about the target be given the court and that the court get an update within 10 days of moving a tap. Also requires that the court report to Congress on roving wiretaps. Extends through 2015. Requires more facts to justify giving a wiretap and that the courts get an update within 15 days of moving a tap.

Section 213

Sneak & Peek

What it does: Allows the government to do searches without notifying the searchee until afterwards, provided a judge says that doing so avoids an "adverse" result. Before, you'd generally have to "knock and announce" your search. How much it's used: about 5 times a month, or for 0.2% of all Justice Department search warrants. (NYT)
Senate Bill House Bill
Requires searchee be notified within 7 days after the search (or up to 90 days if the facts warrant a longer delay). Also requires reports for Congress. Requires searchee be notified within 180 days after the search (allows 90 extensions if needed). Also requires reports for Congress.

Section 214

Pen registers & tap ‘n' trace

What it does: Lets the government get a warrant for a pen register and/or trap and trace (devices that tell who's calling you and who you're calling) by telling a judge they're needed to protect against terrorism. Before, the government would have to certify the device was being used on a foreign agent or spy (or for an ongoing criminal investigation). Patriot also lets the warranted devices track your emails (addresses only, not content) and the websites you visit. The sections also state that the devices can't be used "solely" on the basis of activities protected by the 1st amendment (like free speech, right to assemble, etc.).
Senate Bill House Bill
Makes 214 permanent. Allows government to order related customer information from service providers. Also requires reporting to Congress on use of pen registers and trap and traces. Makes 214 permanent.

Section 215

The Library Card

What it does: Allows the government to obtain records and other "tangible things" from third parties (doctor's offices, libraries, etc.) without your knowledge, provided the government tells a judge the records are being sought for an authorized investigation against terrorism. (The third party is also barred from telling you that the government has requested your records.) Before, under the Foreign Intelligence Surveillance Act of 1978 (FISA), the government had to say the target of the search was an "agent of a foreign power." Also, before a judge could theoretically reject the warrant request, but now they must approve the request as long as it's filled out correctly. Like with sections 214 and 216, searches can't happen on people who are only practicing their 1st amendment rights. How much it's used: The Department of Justice says 215 was only used 35 times up until June 2005 - and never for library records. (WP) Librarians suggest that's not the case - and claim they've had 268 requests for information from law enforcement - and, of those, 49 were official requests from the feds. (NYT)
Senate Bill House Bill
Extends through 2009. Requires the government provide the courts with more details about the search request and that the Director of the FBI, or his designee , approve the request for certain records (library, book store, gun sales and medical records). Lets folks challenge the search orders and allows “unlawful orders” to be “set aside.” Requires more reporting of stats. Extends through 2015. Requires the government provide the courts with more details about the search request and that the Director of the FBI approve the request for certain records (library and book store records). Lets folks challenge the search orders and allows “unlawful orders” to be “set aside.”

Section 218

For all intents and purposes

What it does: Changes a single phrase in FISA so that now when the government wants to do a secret search or wiretap it must show a "significant purpose" for the warrant is intelligence gathering; it used to have to be "the" purpose. The idea behind the original FISA wording was that you could loosen the standards for granting a search warrant when you wanted the warrant only to gather intelligence and not to use the evidence against someone in court. Now the feds can use the evidence it finds in court as long as that wasn't its only purpose. The Department of Justice said the old law set up an information "wall" between intelligence and criminal investigations that hurt terrorist investigations.
Senate Bill House Bill
Both bills make 218 permanent.

Section 505

National Security Letters

What it does: Before Patriot, the FBI could get your records from banks, credit unions, and phone companies without a warrant from a judge by issuing a National Security Letter. The one limit they had was that they'd have to have some evidence that you were a foreign spy. Patriot now eases up that requirement, so now the National Security Letters can be used whenever the information being searched is "relevant" to an intelligence investigation. Patriot and other laws have also expanded what kinds of records can be searched. (In 2004 a federal judge ruled that National Security Letters violated the 4th and 1st amendments. The government is appealing that decision.) (WP) How much it's used: Not so clear. 56,000 were issued in 2004, according to LAT. An average of 15,000 letters a year from 2003-2005, requesting 48,000 pieces of information each year, according to Inspector General Fine, as reported by WP; in 2008 Fine said 200,000 letters were used between 2003-2006 (WP). Also according to Fine, about 1 out of 15 letters is improperly (or illegally) processed and some letters are used to get blanket information on up to 4,000 numbers; a 2007 report from the FBI suggests that there could be even more violations (WP & WP). (For an unusual public debate on the use of NSLs, see the Department of Jusice's and Post's back and forth.)
Senate Bill House Bill
Both give the courts greater oversight over NSL's.

House add-ons. The House bill doesn't limit itself to extending parts of the Patriot Act; it would also add a long list of new anti-terrorist measures – from lowering the threshold that gets you qualified as a “cigarette smuggler” to new funding formulas for state “first responder” funds. See the CRS pdf document for the full listing. Here's the speedy overview from the Washington Post:

"The House bill would enact new law on cigarette smuggling, expand federal wiretapping authorities and the federal death penalty to a host of new terrorism crimes, authorize funding for first responders, make it easier to subject those convicted of terrorism crimes to being monitored for life following their release, and criminalize a host of activities related to seaports and transporting terrorists and hazardous materials."

Where the background info on Patriot is from:

  • The law itself: as printed on EPIC.

  • A (recommended and) fairly balanced overview of Patriot and its civil libertarian concerns from the Century Foundation.

  • The Department of Justice's website on the Patriot Act.

  • ACLU's summary of problems with Patriot.

  • Slate's matter of fact overview of the sections above and others.

  • A Congressional Research Service overview of Patriot as well as a thorough legal summary.

  • A middle of the road look at the competing aims of security and liberty in the Patriot Act from Brookings.

  • Department of Justice report on how parts of Patriot have been successfully used over the past three years.

This page was written with Thomas Lindaman. Updated 3.15.08

Did we miss something, let some slant slip in, lose a link - or do you just have something to say? Drop a line below! In the spirit of open dialogue, cJ asks you keep it civil, keep it real and keep it focused on the message, not the messenger. See our policy page for more on what that all means.

Thanks

I needed to research the USA PATRIOT Act for a college class, but the sources available through the school only told me one side of the story. Your summary and included references gave me a much more balanced look at the issues.

a random Joe (not verified) | November 9, 2008 - 11:08am

This was very useful for

This was very useful for learning about what rights the government has for the PATRIOT ACT

anna13ack (not verified) | February 19, 2008 - 9:47am