On October 26th 2001, merely 45 days after 9/11, the “Patriot Act” was signed into law to grant vastly expanded powers to U.S. intelligence agencies, to supposedly help protect Americans from terrorists… Instead it has been used to operate a previously unimaginable surveillance dragnet on literally all Americans, while simultaneously singling out millions of innocent Americans, for the most extreme surveillance abuse targeting, and all manner of illicit extrajudicial persecution…
By: Thomas F. McFarlan
Featured image by Alexander Mils. Used with permission under a "fair use" CC0 license.
Ever since September of 2001, the Fall of every new year brings a lot of attention to the events of September 11th, and the numerous gaping holes in the official account of the events that day. Yet the end of October, rarely brings attention to the crowning legal maneuver that officially enabled the pseudo-legal surveillance dragnet of every American, and the under-the-table extreme surveillance abuse, and illicit extra-judicial persecution of millions of innocent Americans, singled out for no legitimate reason.
— Senator Ron Wyden, May 26th 2011
Like the official account of 9/11, the Patriot Act is riddled with blatant imperfections, and moreover, the track record it has amassed over the last 17 years, since its passage on October 26th 2001, is equally damning. Below I list the 15 most critical factors to understand about the Patriot Act, and how it has been used over the last 17 years, to fully grasp how ridiculously flawed, abusive and illegal it is. I have adopted this list from the Electronic Frontier Foundation’s website.
1. Congress did not give the Patriot Act the time or debate it deserved. Only 45 days passed between the Sept. 11, 2001 attacks and the day Bush signed the Patriot Act into law. “No one has really had an opportunity to look at the bill to see what is in it,” Rep. Bobby Scott said at the time. The 363-page bill was considered on the House floor the same day it was introduced, leapfrogging over deliberation in the committees with jurisdiction. It passed the Senate the next day and was signed into law the following day. That expedited timeline gave members of Congress — fearful of looking un-American in the wake of national tragedy — little time to read, understand, and debate what they were voting on.
2. The Patriot Act isn’t just about fighting terrorism. While it was discussed largely in the context of fighting terrorism, some of the tools that came out of the law are almost exclusively used in cases that have nothing to do with terrorism. For instance, the so-called sneak-and-peek search warrants standardized in the law are used overwhelmingly in domestic drug investigations. Those Delayed Notice warrants allow law enforcement to secretly enter and search private premises.
3. The U.S. government collected Americans’ phone records in bulk long before using the Patriot Act for justification. The NSA’s sweeping phone record collection surveillance program under Section 215 of the Patriot Act was hardly the first time the U.S. collected American phone records. For decades, the Drug Enforcement Administration tracked Americans’ international phone calls under a wholly unrelated provision of law. Even the NSA’s phone record program existed for years before the Bush administration first sought approval in 2006 from the Foreign Intelligence Surveillance Court to use Section 215 to justify that program.
4. Surveillance under the Patriot Act goes far beyond your phone company. Section 215 dramatically expanded the “business records” provision of the Foreign Intelligence Surveillance Act. Although it was most notoriously used for the NSA’s call record program and was reformed by the USA FREEDOM Act, despite those reforms, the provision still allows the FBI to obtain records from any type of business, including your car rental company, your school, or your employer.
5. You don’t need to be suspected of committing a crime to be spied on under some provisions of the Patriot Act. Under some provisions of the Patriot Act, all the FBI needs to show is that the surveillance is “relevant” to its investigation — a term we know the FBI has interpreted extremely broadly in the past. Although USA FREEDOM Act’s changes to the law may rein in future abuses of the statute, we still don’t have the full story about how the law has been used previously.
6. In practice, the law’s National Security Letters (NSLs) are not the precise, fine-toothed tools they’re made out to be. Patriot Act defenders say the often-secret NSLs — the uses of which were expanded in the law — are used in a tailored way to get the communications of specific individuals who are tied to national security investigations. But in practice, the law is stretched by the FBI, a problem that is compounded by the excessive secrecy the FBI imposes on recipients. For instance, the FBI in 2003 reportedly used NSLs and subpoenas to collect information from airlines and casino operators about the almost 300,000 people in Las Vegas for New Years that year.
7. Parts of the Patriot Act have been ruled unconstitutional. The Patriot Act dramatically expanded the FBI’s authority to issue NSLs, and federal courts have struck down these provisions as unconstitutional on several occasions. The most recent of these rulings came in 2013 after a lawsuit from EFF. In that ruling, Judge Susan Illston said the mandated secrecy around the NSLs violates the First Amendment.
8. Despite reforms, the fight over NSLs is ongoing. In response to EFF’s landmark victory, Congress amended the NSL statute yet again as part of the 2015 USA FREEDOM Act. However, many of the controversial NSL provisions from the Patriot Act remain in place, and the FBI continues to issue thousands of NSLs every year. In 2016, a court upheld this new version of the statute, but EFF appealed, and the fight is currently ongoing in the Ninth Circuit.
9. The Patriot Act added a huge swath of people to the FBI’s DNA database. Section 503 of the law made it so that the DNA of anyone convicted of a violent crime — including assault, threatening violence or burglary — is entered into the DNA database that the FBI uses in terrorism investigations.
10. The Patriot Act expanded the power of the government to use wiretaps to go after computer crimes. One provision in the law, Section 202, gave law enforcement the authority to get wiretaps for investigations into violations of the Computer Fraud and Abuse Act, the vague federal anti-hacking law that prosecutors often use to escalate charges and penalties.
11. The law’s “critical” lone wolf provision isn’t as critical as officials would like you to believe. In calling for the re-authorization of the three Patriot Act authorities that temporarily expired in 2015, U.S. officials called those provisions critical for protecting national security. But intelligence officials admitted in 2015 that one of the three authorities — the “lone wolf” provision — has never actually been used. The provision authorizes the government to spy on someone who they suspect is involved with terrorist activities but does not have known ties to terrorist groups.
12. The USA FREEDOM Act didn’t “fix” the Patriot Act. The U.S. government moved in the right direction when Congress passed and Obama signed into law the USA FREEDOM Act in 2015. That bill took some positive steps towards reining in the controversial phone data surveillance program under Section 215 of the Patriot Act, but it left most of the existing law untouched, including other authorities that raise privacy concerns.
13. Even after the USA FREEDOM Act, the NSA casts a wide net when looking for Americans’ phone records. The U.S. government made a series of changes to its phone records program in response to outrage after Snowden’s leaks in 2013, including having the phone companies, rather than the government, store the records and limiting how wide a net the government can cast when looking for phone records. But they didn’t narrow it enough when they limited their searches to two degrees of separation, which still sweeps in a huge number of people. If you and a suspected terrorist order pizza from the same pizza delivery place — or, more invasive, see the same mental health professional — the NSA can see how often and when you call.
14. The Patriot Act is just the tip of the iceberg when it comes to troubling, privacy-invasive government surveillance authorities. Although the Patriot Act, along with the Foreign Intelligence Surveillance Act, have been at the center of recent years’ debates over government surveillance and privacy concerns, the law is only one of many things the government cites when justifying its surveillance. Also in the intelligence community’s toolbox are Executive Order 12333 — issued by President Ronald Reagan in 1981 — and the Cybersecurity Information Security Sharing Act passed by Congress in 2015.
15. The law has built-in reset buttons to ensure that we keep talking about these expansive surveillance powers. Congress included language in the Patriot Act to ensure that lawmakers would have to reconsider the law every few years. USA FREEDOM passed in 2015 as parts of the law were expiring. The next sunset will be at the end of 2019, giving lawmakers, civil liberties groups and privacy-minded Americans another shot to rein in widespread government surveillance.
For a deep-dive into the most extreme type of government surveillance abuse — that exploded in scale and scope after the events of 9/11 and the passage of the Patriot Act — read my flagship essay on the “targeted-individual” phenomenon on Medium.com.
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