USA PATRIOT Act
Background and Related Materials

30-Nov-2005 11:18

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Background

FISA Court Orders and Grand Jury Subpoenae: How They Differ

The Justice Department has argued that it can obtain business records (including “any tangible thing” from libraries) using a grand jury subpoena without judicial approval at all. (Indeed, this may be part of the reason that it has not needed to rely on Section 215.) They claim that Section 215, because it requires an order to be issued by a FISA Court judge, provides better protection for libraries and, thus, librarians should not be so concerned about this provision of the USA PATRIOT Act. However, while the judge isn't actively involved in the issuing of a grand jury subpoena, the grand jury subpoena is subject to other checks not present in the FISA context:

  • First, it is constrained by the criminal code and the definitions of particular crimes - a grand jury can obtain only those records relevant to investigation of a particular crime. Thus, the scope of a criminal investigation is typically far narrower than an intelligence investigation, where arguably almost anything could be relevant.
  • Second, the grand jury process is run by a federal prosecutor, who serves to constrain FBI over-reaching.
  • Third, the recipient of a grand jury subpoena is normally free to disclose information about the subpoena, providing a "sunshine" check on the process. Recipients of Section 215 orders are statutorily prohibited from telling anyone that they have received them.
  • Moreover, while the judge isn't actively involved in the issuing of a grand jury subpoena, if issues arise there is a judge who can resolve them. For example, an individual can move to quash a grand jury subpoena -- and a judge would decide.

For more information on Security and Privacy, including Section 215 and the USA PATRIOT Act, go to
http://www.cdt.org/security/010911response.shtml

Other resources include:

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Proposed Senate Intelligence Committee Bill Expanding PATRIOT

The Senate Select Intelligence Committee is poised to markup a bill reauthorizing of the PATRIOT Act and broadly expanding the ability of the FBI to use administrative subpoena powers in a closed meeting Thursday, 26 May.

As we understand it, the Senate Intelligence Committee’s proposed legislation would:

  • Make permanent PATRIOT Act powers without safeguards. The bill makes permanent, with one exception, all the expiring provisions of the PATRIOT Act. The only exception, section 223, protects privacy by giving victims of unlawful government surveillance a court remedy. The bill would allow that section to expire.
  • Expand the use of “administrative subpoenas,” eliminating prior court review of FBI library and other private records demands for intelligence gathering purposes. The bill, thus, creates a new power for the FBI to obtain library and other private records without even the review of the Foreign Intelligence Surveillance Court. The bill does this even though the Justice Department and PATRIOT Act defenders have constantly pointed to this existing court review (which is inadequate because the court is directed by law to issue the order) in defense of the existing PATRIOT Act FISA records power. The new records power could be used to obtain all tangible things, including library records, business records, medical records, etc. The new power would make any modifications to section 215 less meaningful since the government can simply use the new power instead.
  • Not provide adequate safeguards to protect library and other private records. While the bill would
    1. allow a recipient of a FISA records search order (Patriot Act section 215) to consult with an attorney or other person necessary to comply with the request, and
    2. make the standard for issuing an order explicitly made "relevant to" rather than "sought for," the bill offers no explicit right to challenge the records search order, or to challenge the gag order, even though multiple witnesses from the Department of Justice have stated that they would agree to such amendments.
  • Appears to strike an existing First Amendment safeguard for records search powers. Under section 215 of the PATRIOT Act, where an application for records is made under FISA, there is an express proviso that "such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." This safeguard is inadequate, but DOJ has pointed to it on countless occasions in defense of the PATRIOT Act.
  • Create new statutory authority for intelligence investigators to track mail of ordinary citizens. The bill adds an entire new section to FISA on "mail covers" which allows intelligence investigators to track, without probable cause, the outside of any sealed mail sent or received or the contents of any unsealed mail. FISA was originally intended to provide some check on electronic surveillance for national security purposes, instead of criminal investigations. FISA is not necessarily based on any evidence of criminal wrongdoing.
  • Expand greatly the amount of information obtained without probable cause through Internet surveillance. The bill expands substantially the amount of information that can be obtained, with a court order but without probable cause, from surveillance of so-called "routing information" through the Internet (pen registers and trap and trace devices), including: name, address, telephone number or IP address of the device, how long the subscriber has used the services, method of payment (including credit card numbers), and the periods of the subscriber’s usage.

Pen registers and trap and trace device capture information like telephone numbers dialed or received, the header of an e-mail, or the web address of a web site or web page viewed. They are based on a standard of relevance, rather than any individualized suspicion.

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