Section 215 of the Patriot Act
A PRESENTATION OF THE MISSOURI BAR’S CITIZENSHIP EDUCATION PROGRAM
On September 11, 2001, the World Trade Center and Pentagon were attacked, killing thousands. �The nation was stunned. �And angry.�And frightened.� �
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We wanted to hunt down those responsible for this attack.�But that was not all.
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We believed that in order to prevent future attacks, it was necessary to make significant alterations to our constitutional system and the values it embodied.��
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Within a matter of weeks after the attacks, the USA PATRIOT ACT was submitted to Congress. The stated purpose of the Patriot Act was to safeguard the nation and prevent additional attacks.
The Patriot Act was passed within days by Congress.
The usual process of considering legislation (committee hearings, revising the bill) was by-passed and many members admitted to voting for the law without reading it in its entirety.
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The Patriot Act represented an accumulation of power within the federal government that would have been unimaginable to the Framers of the Constitution.�
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The Justice Department justified the Patriot Act in the following ways:
The Justice Department justified the Patriot Act in the following ways:
We are going to focus our attention on Section 215 of the Patriot Act. This is known as the “Tangible Things” or “Business Records” provision.
This would allow government to gain access to information from virtually any source. It could encompass everything from the names of books purchased at the mall to computer files and genetic records.
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Section 215 of the Patriot Act provides that “The Director of the Federal Bureau of Investigation or a designee may make an application for an order
Some argued the Patriot Act brought about an essential reform in the law:
Business records are a vital piece of evidence in making a case against individuals in court and this law enhanced the ability of government to gain access to them.
Under the previous law, the government could only request records from a small number of parties. This law would allow the government to obtain information from almost anyone.
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Others argued that Section 215 of the Patriot Act raised serious constitutional issues. Do you see any potential constitutional problems with the law?�
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The Framers built into the Fourth Amendment a requirement that the government show probable cause to search. ��This means that before a search can be conducted, the government would have to offer facts to convince a judge that evidence of a crime would be found as a result of a search.�
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The Patriot Act completely dismissed this probable cause requirement and allowed the government to gain access to information if they could simply show that the records were relevant to a terrorist investigation.
Relevance means having some value to establish a matter, much less than the probable cause identified in the Fourth Amendment as required to justify a search.
The government responded that probable cause was a standard used in criminal cases.��What we were dealing with here was much different. It wasn’t just a case against a common criminal. It was the pursuit of information that could save thousands and thousands of lives and protect our national security.
Some expressed concern that the First Amendment could be compromised by the Patriot Act.
Among the items that could be demanded by the government are records of library books checked out, purchases made from book sellers and footage of Americans protesting. Each of these has implications for the First Amendment.
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While Section 215 does state that a demand for information cannot be based solely on activities protected by the First Amendment, activities protected by the First Amendment could be considered, along with other factors, in making an individual a target of government investigation and surveillance.�
Those who opposed the Patriot Act argued it would have a chilling effect on the First Amendment, intimidating Americans into not reading certain books, making certain statements and participating in protests, that would bring them to the government’s attention and make them a target of a Patriot Act demand for information. �
New York Times
Section 215 goes on to state: “Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested … approving the release of records if the judge finds that the application meets the requirements of this section.”�
Many looked at this provision as evidence that the Patriot Act was not inconsistent with the protections of our constitutional system. They pointed to the fact that the government could not simply act on its own initiative, but rather, had to convince a judge it was a legitimate request.
Critics responded that this might be significant, if judges were using the standard of probable cause.
Instead, the argument was made, with judges using the standard of “relevance,” they were not fulfilling the role the Framers envisioned for them.
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Section 215 goes on to state: “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”�
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Critics of Section 215 looked at this requirement with suspicion, asking why the government sought to act behind a cloak of secrecy, if its actions were consistent with the principles of our constitutional system.
Supporters of Section 215 responded that this was simply a strategy used in organized crime and drug trafficking cases, in which the government sought to delay wrongdoers learning about an investigation. It’s a smart law enforcement practice.
One of the most controversial aspects of Section 215 concerned the government demanding access to metadata surrounding phone calls.
Metadata identifies who was called, when the call was made and how long the conversation lasted. The practice of government accumulating large quantities of metadata is called “bulk telephone data collection.”
In 2013, Edward Snowden, an American intelligence contractor, exposed the fact that the National Security Agency had obtained millions of call records about American citizens from numerous telecommunication companies. �
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The conservative CATO Institute stated, “What the National Security Agency has been engaged in has literally been totalitarian regime-style dragnet surveillance.”
At the other end of the political spectrum, the American Civil Liberties Union stated, “Section 215 vastly expands the FBI’s power to spy on ordinary people living in the United States.”
The resulting controversy led Congress to enact the USA Freedom Act in 2015.�
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The USA Freedom Act amended Section 215 of the Patriot Act:�
Under the CDR Program, the government could request data from telecommunication companies by going before the Foreign Intelligence Surveillance Court and demonstrating that:
It was thought that the changes made in this law and the CDR Program would result in greater protection for the privacy of the American people. ��That objective was somewhat undermined by the fact that the government would be allowed to collect records “two hops” away from the SST.�
What did “two hops” mean? It meant that the government would have access to records of phones contacted by the SST and each of the phones contacted by THOSE phones.
ODNI Statistical Transparency Report
The implications of “two hops?”
This means the majority of records collected under the CDR Program, like those collected under the Patriot Act, are not those of a target or anyone suspected of wrongdoing, or even of people in contact with someone suspected of wrongdoing.�
Many questioned whether the USA Freedom Act represented a dramatic improvement on Section 215 of the Patriot Act.
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The Patriot Act, when it was initially passed, was set to expire in 2005.
When Congress was unable to come to an agreement on preserving Section 215 of the Patriot Act and the CDR Program, the law was allowed to “sunset” and come to an end in 2020.�
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Even though the law ended, that did not mean that government accessing information about American citizens came to an end.
Even though the law ended, that did not mean that government accessing information about American citizens came to an end. �
In still other cases, collection of data continued, justified by other laws. Just this year, it was revealed by the Office of National Intelligence that the FBI relied on a provision of the Foreign Intelligence Surveillance Act to search the emails and texts of 3.4 million Americans without probable cause.
Only one Senator, Russ Feingold, voted against the Patriot Act in 2001. In justifying his vote, he referenced the quote by Curran, “The condition upon which God hath given liberty to man is eternal vigilance.”
Feingold stated, “We must redouble our vigilance. We must redouble our vigilance to ensure our security and prevent further acts of terror. But we must also redouble our vigilance to preserve our values and the basic rights that make us who we are.”
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Contrast this with the statement of Attorney General John Ashcroft: “We are at war and we have to do things differently than before.”�
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Robert Mueller, the Director of the FBI, testified before a Senate Committee in 2004 that “the Patriot Act has proved extraordinarily beneficial in the war on terrorism and has changed the way the FBI does business. Many of our counterterrorism successes, in fact, are the direct results of provisions included in the Act.”
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In 2001, the position of Ashcroft prevailed over that of Feingold.��Twenty years later, should we continue to make the same decisions about the balance between security and liberty?