Is the Patriot Act Unconstitutional
Just six weeks after the September 11 attacks, a panicked Congress
passed the "USA/Patriot Act," an overnight revision of the nation's
surveillance laws that vastly expanded the government's authority to spy
on its own citizens, while simultaneously reducing checks and balances
on those powers like judicial oversight, public accountability, and the
ability to challenge government searches in court.
Why Congress passed the Patriot Act
Most of the changes to surveillance law made by the Patriot Act were
part of a longstanding law enforcement wish list that had been
previously rejected by Congress, in some cases repeatedly. Congress
reversed course because it was bullied into it by the Bush
Administration in the frightening weeks after the September 11 attack.
The Senate version of the Patriot Act, which closely resembled the
legislation requested by Attorney General John Ashcroft, was sent
straight to the floor with no discussion, debate, or hearings. Many
Senators complained that they had little chance to read it, much less
analyze it, before having to vote. In the House, hearings were held, and
a carefully constructed compromise bill emerged from the Judiciary
Committee. But then, with no debate or consultation with rank-and-file
members, the House leadership threw out the compromise bill and replaced
it with legislation that mirrored the Senate version. Neither
discussion nor amendments were permitted, and once again members barely
had time to read the thick bill before they were forced to cast an
up-or-down vote on it. The Bush Administration implied that members who
voted against it would be blamed for any further attacks - a powerful
threat at a time when the nation was expecting a second attack to come
any moment and when reports of new anthrax letters were appearing
Congress and the Administration acted without any careful or
systematic effort to determine whether weaknesses in our surveillance
laws had contributed to the attacks, or whether the changes they were
making would help prevent further attacks. Indeed, many of the act's
provisions have nothing at all to do with terrorism.
The Patriot Act increases the government's surveillance powers in four areas
The Patriot Act increases the government's surveillance powers in four areas:
- Records searches. It expands the government's ability to look at
records on an individual's activity being held by third parties.
- Secret searches. It expands the government's ability to search private property without notice to the owner. (Section 213)
- Intelligence searches. It expands a narrow exception to the
Fourth Amendment that had been created for the collection of foreign
intelligence information (Section 218).
- "Trap and trace" searches. It expands another Fourth Amendment
exception for spying that collects "addressing" information about the
origin and destination of communications, as opposed to the content
1. Expanded access to personal records held by third parties
One of the most significant provisions of the Patriot Act makes it
far easier for the authorities to gain access to records of citizens'
activities being held by a third party. At a time when computerization
is leading to the creation of more and more such records, Section 215 of
the Patriot Act allows the FBI to force anyone at all - including
doctors, libraries, bookstores, universities, and Internet service
providers - to turn over records on their clients or customers.
The result is unchecked government power to rifle through
individuals' financial records, medical histories, Internet usage,
bookstore purchases, library usage, travel patterns, or any other
activity that leaves a record. Making matters worse:
- The government no longer has to show evidence that the subjects
of search orders are an "agent of a foreign power," a requirement that
previously protected Americans against abuse of this authority.
- The FBI does not even have to show a reasonable suspicion that
the records are related to criminal activity, much less the requirement
for "probable cause" that is listed in the Fourth Amendment to the
Constitution. All the government needs to do is make the broad assertion
that the request is related to an ongoing terrorism or foreign
- Judicial oversight of these new powers is essentially
non-existent. The government must only certify to a judge - with no need
for evidence or proof - that such a search meets the statute's broad
criteria, and the judge does not even have the authority to reject the
- Surveillance orders can be based in part on a person's First
Amendment activities, such as the books they read, the Web sites they
visit, or a letter to the editor they have written.
- A person or organization forced to turn over records is
prohibited from disclosing the search to anyone. As a result of this gag
order, the subjects of surveillance never even find out that their
personal records have been examined by the government. That undercuts an
important check and balance on this power: the ability of individuals
to challenge illegitimate searches.
Why the Patriot Act's expansion of records searches is unconstitutional
Section 215 of the Patriot Act violates the Constitution in several ways. It:
- Violates the Fourth Amendment, which says the government cannot
conduct a search without obtaining a warrant and showing probable cause
to believe that the person has committed or will commit a crime.
- Violates the First Amendment's guarantee of free speech by
prohibiting the recipients of search orders from telling others about
those orders, even where there is no real need for secrecy.
- Violates the First Amendment by effectively authorizing the FBI
to launch investigations of American citizens in part for exercising
their freedom of speech.
- Violates the Fourth Amendmentby failing to provide notice - even
after the fact - to persons whose privacy has been compromised. Notice
is also a key element of due process, which is guaranteed by the Fifth
2. More secret searches
For centuries, common law has required that the government can't go
into your property without telling you, and must therefore give you
notice before it executes a search. That "knock and announce" principle
has long been recognized as a part of the Fourth Amendment to the
The Patriot Act, however, unconstitutionally amends the Federal Rules
of Criminal Procedure to allow the government to conduct searches
without notifying the subjects, at least until long after the search has
been executed. This means that the government can enter a house,
apartment or office with a search warrant when the occupants are away,
search through their property, take photographs, and in some cases even
seize property - and not tell them until later.
Notice is a crucial check on the government's power because it forces
the authorities to operate in the open, and allows the subject of
searches to protect their Fourth Amendment rights. For example, it
allows them to point out irregularities in a warrant, such as the fact
that the police are at the wrong address, or that the scope of the
warrant is being exceeded (for example, by rifling through dresser
drawers in a search for a stolen car). Search warrants often contain
limits on what may be searched, but when the searching officers have
complete and unsupervised discretion over a search, a property owner
cannot defend his or her rights.
Finally, this new "sneak and peek" power can be applied as part of
normal criminal investigations; it has nothing to do with fighting
terrorism or collecting foreign intelligence.
3. Expansion of the intelligence exception in wiretap law
Under the Patriot Act, the FBI can secretly conduct a physical search
or wiretap on American citizens to obtain evidence of crime without
proving probable cause, as the Fourth Amendment explicitly requires.
A 1978 law called the Foreign Intelligence Surveillance Act (FISA)
created an exception to the Fourth Amendment's requirement for probable
cause when the purpose of a wiretap or search was to gather foreign
intelligence. The rationale was that since the search was not conducted
for the purpose of gathering evidence to put someone on trial, the
standards could be loosened. In a stark demonstration of why it can be
dangerous to create exceptions to fundamental rights, however, the
Patriot Act expanded this once-narrow exception to cover wiretaps and
searches that DO collect evidence for regular domestic criminal cases.
FISA previously allowed searches only if the primary purpose was to
gather foreign intelligence. But the Patriot Act changes the law to
allow searches when "a significant purpose" is intelligence. That lets
the government circumvent the Constitution's probable cause requirement
even when its main goal is ordinary law enforcement.
The eagerness of many in law enforcement to dispense with the
requirements of the Fourth Amendment was revealed in August 2002 by the
secret court that oversees domestic intelligence spying (the "FISA
Court"). Making public one of its opinions for the first time in
history, the court revealed that it had rejected an attempt by the Bush
Administration to allow criminal prosecutors to use intelligence
warrants to evade the Fourth Amendment entirely. The court also noted
that agents applying for warrants had regularly filed false and
misleading information. That opinion is now on appeal.
4. Expansion of the "pen register" exception in wiretap law
Another exception to the normal requirement for probable cause in
wiretap law is also expanded by the Patriot Act. Years ago, when the law
governing telephone wiretaps was written, a distinction was created
between two types of surveillance. The first allows surveillance of the
content or meaning of a communication, and the second only allows
monitoring of the transactional or addressing information attached to a
communication. It is like the difference between reading the address
printed on the outside of a letter, and reading the letter inside, or
listening to a phone conversation and merely recording the phone numbers
dialed and received.
Wiretaps limited to transactional or addressing information are known
as "Pen register/trap and trace" searches (for the devices that were
used on telephones to collect telephone numbers). The requirements for
getting a PR/TT warrant are essentially non-existent: the FBI need not
show probable cause or even reasonable suspicion of criminal activity.
It must only certify to a judge - without having to prove it - that such
a warrant would be "relevant" to an ongoing criminal investigation. And
the judge does not even have the authority to reject the application.
The Patriot Act broadens the pen register exception in two ways:
"Nationwide" pen register warrants
Under the Patriot Act PR/TT orders issued by a judge are no
longer valid only in that judge's jurisdiction, but can be made valid
anywhere in the United States. This "nationwide service" further
marginalizes the role of the judiciary, because a judge cannot
meaningfully monitor the extent to which his or her order is being used.
In addition, this provision authorizes the equivalent of a blank
warrant: the court issues the order, and the law enforcement agent fills
in the places to be searched. That is a direct violation of the Fourth
Amendment's explicit requirement that warrants be written "particularly
describing the place to be searched."
Pen register searches applied to the Internet
The Patriot Act applies the distinction between transactional
and content-oriented wiretaps to the Internet. The problem is that it
takes the weak standards for access to transactional data and applies
them to communications that are far more than addresses. On an e-mail
message, for example, law enforcement has interpreted the "header" of a
message to be transactional information accessible with a PR/TT warrant.
But in addition to routing information, e-mail headers include the
subject line, which is part of the substance of a communication - on a
letter, for example, it would clearly be inside the envelope.
The government also argues that the transactional data for Web
surfing is a list of the URLs or Web site addresses that a person
visits. For example, it might record the fact that they visited
"www.aclu.org" at 1:15 in the afternoon, and then skipped over to
"www.fbi.gov" at 1:30. This claim that URLs are just addressing data
breaks down in two different ways:
- Web addresses are rich and revealing content. The URLs or
"addresses" of the Web pages we read are not really addresses, they are
the titles of documents that we download from the Internet. When we
"visit" a Web page what we are really doing is downloading that page
from the Internet onto our computer, where it is displayed. Therefore,
the list of URLs that we visit during a Web session is really a list of
the documents we have downloaded - no different from a list of
electronic books we might have purchased online. That is much richer
information than a simple list of the people we have communicated with;
it is intimate information that reveals who we are and what we are
thinking about - much more like the content of a phone call than the
number dialed. After all, it is often said that reading is a
"conversation" with the author.
- Web addresses contain communications sent by a surfer. URLs
themselves often have content embedded within them. A search on the
Google search engine, for example, creates a page with a
custom-generated URL that contains material that is clearly private
content, such as: http://www.google.com/search?hl=en&lr;=&ie;=UTF-8&oe;=UTF-8&q...
Similarly, if I fill out an online form - to purchase goods or
register my preferences, for example - those products and preferences
will often be identified in the resulting URL.
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