Information

Here's Why the Patriot Act Is So Controversial


Passed after the 9/11 terrorist attacks, the Patriot Act has created new rules on surveillance and national security in the U.S. See why some believe it has kept the country safer, while others believe it violates Americans' constitutional rights.


Here's Why the Patriot Act Is So Controversial - HISTORY

The Department of Justice's first priority is to prevent future terrorist attacks. Since its passage following the September 11, 2001 attacks, the Patriot Act has played a key part - and often the leading role - in a number of successful operations to protect innocent Americans from the deadly plans of terrorists dedicated to destroying America and our way of life. While the results have been important, in passing the Patriot Act, Congress provided for only modest, incremental changes in the law. Congress simply took existing legal principles and retrofitted them to preserve the lives and liberty of the American people from the challenges posed by a global terrorist network.

The USA PATRIOT Act: Preserving Life and Liberty
(Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism)

Congress enacted the Patriot Act by overwhelming, bipartisan margins, arming law enforcement with new tools to detect and prevent terrorism: The USA Patriot Act was passed nearly unanimously by the Senate 98-1, and 357-66 in the House, with the support of members from across the political spectrum.

The Act Improves Our Counter-Terrorism Efforts in Several Significant Ways:

    Allows law enforcement to use surveillance against more crimes of terror. Before the Patriot Act, courts could permit law enforcement to conduct electronic surveillance to investigate many ordinary, non-terrorism crimes, such as drug crimes, mail fraud, and passport fraud. Agents also could obtain wiretaps to investigate some, but not all, of the crimes that terrorists often commit. The Act enabled investigators to gather information when looking into the full range of terrorism-related crimes, including: chemical-weapons offenses, the use of weapons of mass destruction, killing Americans abroad, and terrorism financing.

2. The Patriot Act facilitated information sharing and cooperation among government agencies so that they can better "connect the dots." The Act removed the major legal barriers that prevented the law enforcement, intelligence, and national defense communities from talking and coordinating their work to protect the American people and our national security. The government's prevention efforts should not be restricted by boxes on an organizational chart. Now police officers, FBI agents, federal prosecutors and intelligence officials can protect our communities by "connecting the dots" to uncover terrorist plots before they are completed. As Sen. John Edwards (D-N.C.) said about the Patriot Act, "we simply cannot prevail in the battle against terrorism if the right hand of our government has no idea what the left hand is doing" (Press release, 10/26/01)

  • Prosecutors and investigators used information shared pursuant to section 218 in investigating the defendants in the so-called &ldquoVirginia Jihad&rdquo case. This prosecution involved members of the Dar al-Arqam Islamic Center, who trained for jihad in Northern Virginia by participating in paintball and paramilitary training, including eight individuals who traveled to terrorist training camps in Pakistan or Afghanistan between 1999 and 2001. These individuals are associates of a violent Islamic extremist group known as Lashkar-e-Taiba (LET), which operates in Pakistan and Kashmir, and that has ties to the al Qaeda terrorist network. As the result of an investigation that included the use of information obtained through FISA, prosecutors were able to bring charges against these individuals. Six of the defendants have pleaded guilty, and three were convicted in March 2004 of charges including conspiracy to levy war against the United States and conspiracy to provide material support to the Taliban. These nine defendants received sentences ranging from a prison term of four years to life imprisonment.

    Allows law enforcement officials to obtain a search warrant anywhere a terrorist-related activity occurred. Before the Patriot Act, law enforcement personnel were required to obtain a search warrant in the district where they intended to conduct a search. However, modern terrorism investigations often span a number of districts, and officers therefore had to obtain multiple warrants in multiple jurisdictions, creating unnecessary delays. The Act provides that warrants can be obtained in any district in which terrorism-related activities occurred, regardless of where they will be executed. This provision does not change the standards governing the availability of a search warrant, but streamlines the search-warrant process.

    Prohibits the harboring of terrorists. The Act created a new offense that prohibits knowingly harboring persons who have committed or are about to commit a variety of terrorist offenses, such as: destruction of aircraft use of nuclear, chemical, or biological weapons use of weapons of mass destruction bombing of government property sabotage of nuclear facilities and aircraft piracy.


Roundtable: Patriot Act, Private Drunkenness, Terry McMillan

Topics on Wednesday's roundtable discussion: making the USA Patriot Act permanent a man sues to be drunk on private property and Terry McMillan and her soon to be ex-husband air their dirty laundry on television. Joining the conversation are: Joe Davidson, an editor at The Washington Post George Curry, editor-in-chief of the National Newspaper Publishers Association News Service and Laura Washington, columnist with the Chicago Sun-Times .

This is NEWS & NOTES. I'm Ed Gordon.

On today's Roundtable, a congressman wants to make the Patriot Act permanent and are you ever too young to learn? From NPR headquarters in Washington, DC, Joe Davidson, editor at The Washington Post. Laura Washington, Chicago Sun-Times columnist, joins us today from member station WLRN in Miami. And George Curry, editor in chief of the National Newspaper Publishers Association News Service, joins us from Maryland.

All right. Folks, let's talk about something that we've been looking at for quite some time and now there is a proposal to make the Patriot Act permanent. This was proposed by a Republican from Wisconsin, James Sensenbrenner, and the idea of making such a controversial act permanent speaks to what critics were concerned about all along, George Curry.

Mr. GEORGE CURRY (Editor in Chief, National Newspaper Publishers Association News Service): Yeah. There are some provisions in there scheduled to be revised, but that's just--you know, the House has one version. The Senate Republicans have a stronger one. The real problem is this was done in haste. A lot of things are not related to terrorism. They're really talking about cramping the styles and liberties of Americans. And there were certain sunset provisions--I think about 16--put into this law hoping that it would expire, of course, requiring that they be renewed. And I think the most troubling part is the lack of sufficient judicial review in some cases. We already have the apparatus set up. We have to--the law enforcement agency need to go and get warrants without the person knowing it. They can go appear before a judge and that's already intact, should be intact, but under the law, they're allowed to avoid that and just basically issue themselves warrants.

GORDON: Joe, there are going to be people who say, `Just take a look at London last week, and we don't much care about the infringement upon certain niceties that have been provided to us in this country. We want to be safe.'

Mr. JOE DAVIDSON (Editor, The Washington Post): Well, I think that the Democrats are trying to come back with the argument that the administration really has not adequately funded transportation legislation, some of which is designed to have these security measures in it to help transportation facilities avoid the kind of thing or defend against the kind of tragedy that we saw in London. And so the Democrats who are opposed to making the Patriot Act provisions that George referred to permanent are attacking it not just on the basis of whether or not the Patriot Act is in itself effective or overreaching but also trying to say the administration, while putting all of its--well, giving a lot of its attention at least to the Patriot Act really isn't doing enough in terms of basic homeland security measures to defend the transportation arteries, to defend the ports and other things like that. So they're trying to divert some of that attention away to some of these kind of nuts-and-bolts security issues.

GORDON: Laura, there are going to be people in Congress who are going to suggest those who want to see this act become permanent who are going to suggest they've already played watchdog. They've turned aside new sought powers by the Bush administration. The House recently voted by a wide margin to curtail the FBI's ability under the Patriot Act to seize things like library cards and bookstore records, etc.

Ms. LAURA WASHINGTON (Columnist, Chicago Sun-Times): Well, yes, and as in any negotiation, often certain sites will breathe a sigh of relief because they could say, `Well, it could be worse. We're not going to do the bookstore thing. We're not going to do the library thing,' so, you know, let's take a deep breath and be happy with it as it is.' And I think if the Bush administration can, though, make a very powerful argument and it's a very simple one, there have been no major--any significant attacks at all in the United States, unlike London last week, since September 11th since the Patriot Act was enacted, and they're going to argue that has a lot to do with the curbs that we've been able to put in place.

Just the other day, Michael Chertoff, the national homeland security chief, said that he believes that, you know, steps like being able to pick up immigrants on small offenses, police being able to be much more active in getting folks out of the country if they have any kind of criminal record, that that has helped to curb some of the potential acts. I think one of the things we don't know is what we've prevented. We know we're preventing things but we don't really know why.

Mr. CURRY: Well, I think the problem with that is, though, if you take credit for it, are you going to take the blame? And that's the real trick here. They can't really take credit for not doing it because we don't know why. They may have decided to wait till we have less attention because if you're going to take the credit, you'd better be ready for the blame.

Mr. DAVIDSON: And it's also kind of like trying to prove a negative which is always very difficult.

Ms. WASHINGTON: But it's a very emotional argument and people feel more secure and I think a lot of people, a lot of regular American voters are feeling like they're willing to give away maybe a little bit of their freedom for a little bit of security.

Mr. CURRY: Do you feel more secure? I don't. Do you, Laura? Do you feel more secure?

Ms. WASHINGTON: No, I don't. I don't, but I think a lot of people do.

Ms. WASHINGTON: And when you look at London last week and you say, `This is not happening here. They're going'--I mean, I think the message is then the terrorists are going elsewhere and.

Mr. DAVIDSON: But, you know, I mean.

Ms. WASHINGTON: . I think that's a very powerful argument.

Mr. DAVIDSON: I was getting on the Washington Metro System that day and I was just thinking I had had two bags with me and I could simply walk on the subway with those bags, and I realized how easy it would be to do the same kind of thing in Washington or New York or anywhere else that was done in London yet at the same time trying to make our subway stops and bus stops like airports certainly isn't practical. But that's the kind of thing. I mean, my point is to make you feel really secure, you would have to do things that simply are not workable.

GORDON: Isn't that part of the catch-22 that Washington finds itself in, to a great degree, the longer we go without another issue problem, terror scare here in the United States, the more comfortable people are going to become to some degree--it's human nature? The other end of that is they don't want to see those kinds of lines that people complain about at airports with subway systems and bus systems and the like and isn't that the catch-22?

Mr. DAVIDSON: Well, you know, I'm not so sure that after the bombings in London that people are feeling really more secure. I mean, even though it did not happen in the United States, I think people do understand that if it could happen in London, which after all has had to deal with terrorism far longer than the United States, much before 9/11 because of the situation in Northern Ireland for so many years, if it could happen there where they presumably have had some, you know, experience in training in anti-terrorism measures, I think people do understand it can happen here as well.

GORDON: All right. Let me turn our attention to Massachusetts and an interesting case that's coming up. A man was arrested during a New Year's Eve party at a private home. He's filed a lawsuit arguing that he has a constitutional right to be drunk on private property as long as he didn't cause a public disturbance. And what happened, obviously, is during a party that got a little loud, police came to calm it down, saw that he was drunk and they took him into what's called protective custody and locked him up for nine hours until the effects of the alcohol wore off. He's saying, `Look, I wasn't going to drive. I wasn't in the public square. I wasn't bothering anybody. I should be allowed to be drunk in private.'

Ms. WASHINGTON: Well, you know, there's.

Mr. CURRY: . it's more complicated than that, Ed. First of all.

Mr. CURRY: . he might have been throwing something at the cops when they came in. That's the first thing.

GORDON: Right. I said they came as a disturbance but . (unintelligible) the party initially.

Mr. CURRY: OK. But the second part is--all right. I'm not through. The second part of it, though, is he picked up a camera and started videotaping them. That's when they really got upset with him. That led to these charges. It wasn't just a matter of him being drunk, but his point was, like, `If I'm at a private party, I can get drunk. I didn't plan to drive. I was going to spend the night here. Why are you arresting me?' and I think he had a good point.

GORDON: And at a private home, George Curry, I have every right to pick up a video camera and videotape what I choose as long as I am not interfering with your arrest.

Ms. WASHINGTON: Well, first of all, I think.

Mr. DAVIDSON: Yeah, and there's no law against videotaping somebody.

Ms. WASHINGTON: Yeah. But, see, George, I think you know a lot of the details of that incident are alleged, and you know how it is when you get into a he said-she said, especially with the cops. We've all been at parties where the cops have shown up and you know things can get out of control and it's hard to know who's to blame. My issue with this case is that.

GORDON: Have we all been there, Laura, or is that--were you.

Ms. WASHINGTON: Now I know you all are going to agree. You know, you have to agree on that one. Anyway, yes, you can get drunk in your own home. The issue I have with this case is this was not his own home. He was visiting a friend. A friend was having the party. He alleges that he was planning on staying overnight, but this was not his home. This was a place that he was visiting. The cops' point of view on this is, yeah, he could go out, he could drive.

Ms. WASHINGTON: He could hurt someone. He could hurt himself. So.

GORDON: But the lawsuit is public property is what their contention is.

Mr. DAVIDSON: But what's the significant difference if it was his friend's home.

GORDON: I'm sorry, private property, not public.

Mr. DAVIDSON: . and the friend says, `Yes, he was going to spend the night'? So it's not just.

Ms. WASHINGTON: Well, I don't.

Mr. DAVIDSON: . this individual saying it, but if the friend backs it up, then what's the significant difference whether or not it's his friend's home or his own home?

Ms. WASHINGTON: That could be the case. I'm not sure that the friend was standing there with the cops when the argument was going on backing him up. And if that wasn't the case, the cops have to make a decision on the spot when they've got a conflict here, when they've got somebody who's potentially drunk. So, you know, I think you've got to remember the cops are in a position legally where they have to protect the public and they have to sometimes protect people from themselves. And if the cops believe.

Mr. CURRY: But that's not protecting the public, Laura. That's not protecting the public.

Ms. WASHINGTON: If the man was going to walk out the door and get in the car and drive, it most certainly was protecting the public.

Mr. CURRY: But if as . (unintelligible) I agree with you on that, but if he's at a friend's house and plans to spend the night, what business is it of the cops?

Ms. WASHINGTON: I agree with you.

Mr. DAVIDSON: Ed, you know, I think there are competing interests here between sometimes you have to protect someone from themselves if somebody can get drunk to the point where they are actually a danger to themselves and not just the public, but here you don't necessarily have that evidence. You have somebody in a private home where they at least say they were going to stay there and there's apparently no evidence to the contrary that they were not going to stay there, they were not driving, and so I think you do have a situation where it comes down to a question of someone's right to kind of entertain themselves perhaps in an inappropriate manner but a manner that's not illegal and yet the police taking action. And I think that's the kind of thing that this will definitely end up in court over.

GORDON: All right. We'll see what comes of that case. Let's turn to public and private and now an interesting note on a story that we talked about very briefly because we wanted to protect the privacy of this person, and now we see they're coming out and putting all of the dirty laundry out. And that's Terry McMillan and her soon-to-be ex-husband who announced that he was gay. He, of course, was, many say, the reason that Terry was inspired, the muse if you will, to how Stella got her groove back. And the question here is not so much the McMillan squabble with her soon-to-be ex-husband, her estranged husband, but the idea of whether or not it's an interesting comment on our society that people now tend to go to the media, whether they be celebrity and with the advent of reality television or not, air their dirty laundry in public. It seems to be very, very commonplace.

Ms. WASHINGTON: It's about, I think.

Mr. DAVIDSON: Well, you know, it's been.

Ms. WASHINGTON: It's about money I think.

Mr. DAVIDSON: I was just going to say.

Ms. WASHINGTON: . and publicity. Yeah. They go to the media because--in this case, both sides have been, you know, very prominent in the media. They know they're going to get a lot of attention. She's accused her husband of releasing this story or going public with this as a way of making it look like she was trying to get attention for her book. Either way, the book is going to--her next book, the book that she's got coming out now, is going to make a lot more money I think because of this publicity and afterwards. And the media and the public eat it up--eats this kind of thing up, and celebrities know it. That's why they go public with this stuff.

Mr. DAVIDSON: You know, I can somewhat understand perhaps only from monetary reasons why celebrities do this is for publicity, but as you mentioned, Ed, it's not just celebrities. I mean, look at all of the folks who would go on "The Jerry Springer Show." Look at all these people who go to--have these like divorce courts on TV. I mean, what is the motivation behind airing all of your domestic problems for a national television audience? You know, that amazes me. I can understand the celebrity doing it before I can understand just Joe Blow down the street.

Mr. CURRY: Of course, the problem here is you have a best-selling author, you have a movie and you have this story of this older woman and younger man, and so people kind of--you know, if something happens, that's part of it. You're a celebrity, it's going to be in the news anyway, but because the books and the movie and everything, it kind of feels--I don't think Terry McMillan needed this to get her book to sell it anymore. They sell quite well. I think she was actually devastated to find out that the man that she had married was gay and she alleges that he was gay long before they even got together. He knew it and he endangered her life. That's very important.

Mr. DAVIDSON: And, you know--but she's also saying that she was filing for divorce before this or she was ready to end the marriage before she found out. And it was when she told him that she wanted to break up the marriage was when he informed her that he was gay. Now, you know, I've got to wonder, you know, how is it you don't know for all of this time, where I saw Plummer, her husband, on television the other day saying that he didn't realize until he was 20 years old that he was gay? Well, maybe so, but it makes me wonder about that.

Ms. WASHINGTON: Well, actually I think he--I mean, she met him when he was 20. Now I think he's, like, 26 or 27. He's saying that he was confused. And I can make--and that he didn't realize--he's saying he didn't realize until much more recently. I can buy that argument, you know, but again, when you put your dirty laundry on the street, you make yourself open to, you know, the public's whims and cynicisms. And I think if you go down to the beauty show, you're going to hear a lot of women saying, you know, `Girl, please, you didn't know this? You were with him for six years. First of all, you're 22 years older than him. You're much more mature.' I don't think there's going to be a lot of sympathy for her side of the story here.

Mr. DAVIDSON: And wondering where the gay-dar is, huh?

Mr. CURRY: And with the Internet out there.

Ms. WASHINGTON: Pardon me? The gay-dar.

Mr. CURRY: . all these documents are already on the Internet. Thesmokinggun.com, boy, has both sides of it, a lot of stuff out there, even to the point where it is alleged that she changed his password to iluvmen. You know, it's all the sordid details out there.

Ms. WASHINGTON: And a lot of women do research on their men before they make a commitment for that very reason, and certainly Terry McMillan had the resources and wherewithal to do some homework on this man before she got too far down the road.

GORDON: Have we really gotten to the point, Laura, that women are researching.

Ms. WASHINGTON: Oh, absolutely.

GORDON: . like that honestly?

Ms. WASHINGTON: Absolutely. There's dating services that provide that kind of research for you. There are women--because of the access you can get on the Internet--who are checking these guys out, and I don't see anything wrong with that.

Mr. CURRY: But how can you check out whether somebody's gay?

Ms. WASHINGTON: Well, that's a--there are all kinds of reasons that you want to check men out.

Mr. CURRY: No, I say how? I don't know how you do it. How do you do it?

Ms. WASHINGTON: Well, you can start by asking him. I wonder if she ever did that?

Mr. CURRY: Well, you expect him to give you a right answer if they're on the down low?

Ms. WASHINGTON: Hey, ask his friends. You can do homework on that.

Mr. DAVIDSON: But, you know, it does speak to a different problem. I mean, George mentioned people being on the down low and that is a problem that's been written about, a problem in the black community of because of a certain level of homophobia in the black community, I guess that there are men who go both ways and who hide this information from their women and who do put them potentially at risk because of the increased likelihood of the spread of sexually transmitted diseases. And so I mean that is a real issue that kind of goes beyond this kind of celebrity breakup.

GORDON: Oh, OK. Whoo. It's way too much for me.

Mr. CURRY: Ed doesn't like being researched. You know, I definitely.

GORDON: Well, you ain't got to worry about that, George Curry. All right. Laura Washington, thank you so much for joining us. Joe Davidson and George Curry, I appreciate it. Very stimulating conversation, and we'll keep a watch of the Patriot Act as we said to see in fact what happens and what comes up.

You're listening to NEWS & NOTES from NPR News.

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Cast: Mel Gibson, Heath Ledger, Joely Richardson, Jason Isaacs, Chris Cooper

“Truth is the first casualty in Hollywood’s war,” read the headline of the London Telegraph‘s take on The Patriot. Principal among the movie’s gross inaccuracies is the portrayal of British soldiers as evil, bloodthirsty sadists. In one scene, redcoats are seen rounding up a village of screaming women, children and old men, locking them in a church and setting the building ablaze. No such thing ever happened in the Revolutionary War. What’s worse? An almost identical crime — one of World War II’s most notorious atrocities — was carried out by Nazi soldiers in France in 1944. Meaning not only did the film paint a portrait of the British as cruel killers, it compared them to history’s worst: the Nazis. As Stephen Hunter, a film critic and historian told the Telegraph, “Any image of the American Revolution which represents you Brits as Nazis and us as gentle folk is almost certainly wrong.”

Another of the film’s egregious oversights lies with lead character Benjamin Martin (Mel Gibson), based on several real-life players in the American Revolution, including Francis “Swamp Fox” Marion, a militia leader from South Carolina. The movie depicts Martin as a family man and hero who single-handedly defeats countless hostile Brits. According to the Guardian, however, evidence suggests the Swamp Fox was a man who actively persecuted Cherokee Indians (killing them for fun) and regularly raped his female slaves. In fact, The Patriot turns a blind eye to slavery altogether, a decision that received much attention from critics including director Spike Lee. “For three hours The Patriot dodged around, skirted about or completely ignored slavery,” Lee wrote in a letter to the Hollywood Reporter. “ The Patriot is pure, blatant American Hollywood propaganda. A complete whitewashing of history.”


Here's Why the Patriot Act Is So Controversial - HISTORY

Originally published Winter 2012

Keywords: European consumers, USA Patriot Act, online data, cloud servers, US providers,

European consumers have expressed concern that the USA Patriot Act (the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" or "Patriot Act") will afford the US government undue and unfettered access to their data if they choose to store it on the cloud servers of US providers (e.g., Microsoft or IBM). A recent survey found that 70 percent of Europeans have concerns about their online data and how well it is secured. For many, these fears were exacerbated by an announcement by Gordon Frazer, the managing director of Microsoft UK, that he could not guarantee that data stored on Microsoft servers, wherever located, would not end up in the hands of the US government, because Microsoft, a company based in the United States, is subject to US laws, including the Patriot Act. Aware of these concerns, some EU data centers have gone so far as to advertise that they provide "a safe haven from the reaches of the Patriot Act."

To evaluate the validity of these concerns, several questions must be considered. First, exactly what information does the Patriot Act reach? Second, how likely is it, as a practical matter, that the Patriot Act will ever be used to reach a European company's data stored in the cloud? Finally, how does that risk compare with exposure that European companies already face, such as the prospect of their home-country governments accessing their cloud-stored data? As Ambassador Phillip Verveer, the US State Department's Coordinator for International Communications and Information Policy, explains, "[t]he PATRIOT Act has come to be a kind of label for [privacy] concerns. We think, to some extent, it's taking advantage of a misperception, and we'd like to clear up that misperception."

This article seeks to dispel some of the myths shrouding the Patriot Act, and to provide an assessment of the risks the Patriot Act poses to data stored in the cloud, particularly where the data, or its owner, are based outside of the United States.

Patriot Act Discovery Tools for Law Enforcement

Contrary to a common misconception, the Patriot Act did not create entirely new procedural mechanisms for US law enforcement to use to obtain data in furtherance of its investigations. However, the Patriot Act did expand certain discovery mechanisms already available to US law enforcement. Two of these expanded mechanisms that US law enforcement could use to access data in the cloud that warrant discussion are FISA Orders and National Security Letters.

FISA Orders

Prior to enactment of the Patriot Act, the Foreign Intelligence Surveillance Act permitted the FBI to apply to a special court, the Foreign Intelligence Surveillance Court, for a FISA Order to obtain the business records of third parties for the purpose of foreign intelligence and international terrorism investigations. Originally, however, such business records were limited to car rental, hotel, storage locker, and common-carrier records.

Title II of the Patriot Act, "Enhanced Surveillance Procedures," expanded the reach of FISA Orders to allow the FBI to obtain "an order requiring the production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism and clandestine intelligence activities." This includes data in the cloud. To obtain a FISA Order, the FBI must specify that the tangible things sought are for an authorized investigation either to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.

FISA Orders, particularly as expanded under Section 215 of the Patriot Act, have given rise to privacy concerns for several reasons. First, such orders may be granted ex parte, meaning with only the FBI presenting evidence to the court. Second, Section 215 includes a "gag" provision that prohibits the party that receives a FISA Order from disclosing that fact. This typically would prevent a cloud service provider from informing its customers that the service provider had shared their data with the FBI in response to a FISA Order. Third, the fact that Section 215 allows the FBI to obtain a person's library records sparked significant protests that the provision was invasive of reader privacy. Finally, the American Civil Liberties Union objects that "[t]he FBI need not show probable cause, nor even reasonable grounds to believe, that the person whose records it seeks is engaged in criminal activity."

In the USA Patriot Act Improvement and Reauthorization Act of 2005, enacted March 9, 2006, Congress took several steps to address these concerns, including adding provisions to allow the recipient of a FISA Order to oppose it before the Foreign Intelligence Surveillance Court and also, after a one-year hiatus, to contest the gag provision. Congress also required the US Attorney General to promulgate regulations to "minimize the retention, and prohibit the dissemination, of non-publicly available information." Notwithstanding these efforts, privacy and civil liberties advocates remain deeply troubled by Section 215.

What is the practical effect of FISA Orders on users of US cloud services? The answer is that the FBI rarely uses FISA orders. In 2010, the US government made only 96 applications to the Foreign Intelligence Surveillance Courts for FISA Orders granting access to business records. There are several reasons why the FBI may be reluctant to use FISA Orders: public outcry internal FBI politics necessary to obtain approval to seek FISA Orders and the availability of other, less controversial mechanisms, with greater due process protections, to seek data that the FBI wants to access. As a result, this Patriot Act tool poses little risk for cloud users.

National Security Letters

The National Security Letter (NSL) is a form of administrative subpoena that the FBI and other US government agencies can use to obtain certain records and data pertaining to various types of government investigations.

When the Patriot Act was enacted, there were already four federal statutes authorizing enumerated government authorities (chiefly the FBI) to issue NSLs. First, under the Right to Financial Privacy Act (RFPA), the FBI and the Secret Service may obtain financial records from financial institutions such as banks, securities brokerages, car dealers, pawn brokers, casinos, and real estate agents (accountants and auditors, however, are not included).

Second, under the Fair Credit Reporting Act, the FBI may use a NSL to obtain from a consumer reporting agency (e.g., the three major credit bureaus: TransUnion, Equifax, Experian) the names and addresses of all financial institutions at which a consumer maintains or has maintained an account, plus consumer-identifying information such as name, address and employment history.

Third, under the Electronic Communications Privacy Act, the FBI may request, from wire or electronic service providers (including Internet service providers), subscriber information, toll-billing records information, and electronic communication transactions records. The US Department of Justice takes the position that this includes, with regard to email accounts, the name, address, and length of service of a person, as well as email addresses associated with an account and screen names.

Fourth, under the National Security Act, an authorized government investigative agency may request any of the types of information described above, from any of the sources described above, when necessary to conduct security checks of government employees or investigate US government employees believed to be spying for foreign powers.

Title V of the Patriot Act, Removing Obstacles to Investigating Terrorism, expanded the FBI's authority to make NSL requests beyond its headquarters, to its 56 field offices eliminated the requirement that the information sought relate to a foreign power, instead requiring that the NSL request be relevant to international terrorism or foreign spying and allowed the FBI to obtain full consumer credit reports. The Patriot Act also added another NSL section to the Fair Credit Reporting Act, this one allowing not just the FBI, but any government agency, to obtain information from a consumer- reporting agency in connection with international terrorism or intelligence activities.

After the Patriot Act expanded the scope of NSLs as described above, their use began to rise. The Department of Justice reported to Congress that in 2010 the FBI made 24,287 NSL requests (excluding requests for subscriber information only).

NSLs give rise to privacy concerns and, according to critics, the potential for abuse, for several reasons. First, the FBI may issue NSLs on its own initiative, without the authorization of any court. (This was true even before the Patriot Act.) Nothing in the Patriot Act provides for any judicial review of the FBI's decision to issue an NSL. Second, the NSL statutes impose a gag requirement on persons receiving an NSL. In addition, the Attorney General Guidelines and various information-sharing agreements require the FBI to share NSL information with other federal agencies and the US intelligence community.

The Reauthorization Act tried to redress some of these concerns. It provided a right to judicial review of NSLs and a right to petition a court to lift the gag order. The Reauthorization Act also provided criminal penalties for violating gag obligations with the intent to obstruct an investigation.

So where does this complex statutory scheme leave cloud users? While the use of NSLs is not uncommon, the types of data that US authorities can gather from cloud service providers via an NSL is limited. In particular, the FBI cannot properly insist via a NSL that Internet service providers share the content of communications or other underlying data. Rather, as set forth above, the statutory provisions authorizing NSLs allow the FBI to obtain "envelope" information from Internet service providers. Indeed, the information that is specifically listed in the relevant statute is limited to a customer's name, address, and length of service.

The FBI often seeks more, such as who sent and received emails and what websites customers visited. But, more recently, many service providers receiving NSLs have limited the information they give to customers' names, addresses, length of service and phone billing records. "Beginning in late 2009, certain electronic communications service providers no longer honored" more expansive requests, FBI officials wrote in August 2011, in response to questions from the Senate Judiciary Committee.

Although cloud users should expect their service providers that have a US presence to comply with US law, users also can reasonably ask that their cloud service providers limit what they share in response to an NSL to the minimum required by law. If cloud service providers do so, then their customers' data should typically face only minimal exposure due to NSLs.

Other Law Enforcement Tools

As discussed above, the two law enforcement tools for discovery of third-party data that were most significantly enhanced by the Patriot Act and that have given rise to significant concerns by European critics of the Patriot Act&mdashFISA Orders and NSLs&mdashshould not, as a practical matter, pose a significant risk to European data on the servers of US-based cloud providers. But it would be a mistake to end the analysis there.

Search Warrants and Grand Jury Subpoenas

US federal law enforcement has other, more traditional mechanisms for obtaining information it deems necessary to support its investigative efforts, such as search warrants (which must be approved by a US court upon a showing of probable cause) and grand jury subpoenas, which are issued by a US federal prosecutor in support of an ongoing grand jury investigation (and which a recipient may move to quash in court). These mechanisms also can be used to obtain data stored in the cloud. Should the risks these tools pose cause European companies to eschew US cloud services?

At the outset, consider that search warrants and grand jury subpoenas are hardly new. Search warrants trace their roots in the United States back at least to the Bill of Rights (ratified in 1791): the Fourth Amendment provides for protection against searches and seizures in the absence of a properly obtained warrant. Similarly, the grand jury has been functioning as an institution for receiving evidence of criminal activity since the Magna Carta and also has been incorporated into the US Constitution.

Moreover, Europeans (and others) have comparable discovery mechanisms in their home countries. For example, in France, the Police Nationale and the Gendarmerie Nationale both can execute search warrants. Article 13 of Germany's Basic Law similarly recognizes judicially ordered search warrants. And, of course, US search warrants have their roots in English law. Accordingly, to the extent European consumers wish to avoid any risk that any government will access their cloud data, merely avoiding US service providers is unlikely to help.

MLATs

Sequestering data on European cloud servers may be an ineffective prophylactic against US government access for another reason. The United States and most European governments have entered into bilateral Mutual Legal Assistance Treaties (MLATs). In a typical MLAT, the two countries commit to provide one another with "the widest measure of mutual assistance in investigations or proceedings in respect of criminal offenses. "

In 2003, the United States and the European Union entered into an MLAT with a provision addressing data protection. That provision governs MLAT requests made pursuant to prior bilateral MLATs between EU Member States and the United States. The comments to the EUUS MLAT explain that this provision was "meant to ensure that refusal of assistance on data protection grounds may be invoked only in exceptional cases." Accordingly, US MLAT requests, particularly those concerning terrorism investigations, are seldom denied for data protection reasons.

US Jurisdictional Limitations

In the United States, only a party amenable to what is known as "personal jurisdiction" can be subject to a search warrant, grand jury subpoena, NSL, FISA Order or other enforceable request for documents or data. The fundamental requirements for exercising personal jurisdiction over an individual or corporation are grounded in the Constitution, and the Patriot Act did not alter those principles (nor did it purport to do so).

In the context of personal jurisdiction, due process considerations prohibit courts from exercising jurisdiction over a witness who lacks minimum contacts with the forum. In the case of a corporation, this means that any corporation based in the United States will be subject to US jurisdiction and, thus, can be subject to FISA Orders, NSLs, search warrants, or grand jury subpoenas. The same is generally true for a non-US corporation that has a location in the United States or that conducts continuous and systematic business in the United States.

Furthermore, an entity that is subject to US jurisdiction and is served with a valid subpoena must produce any documents within its "possession, custody, or control." That means that an entity that is subject to US jurisdiction must produce not only materials located within the United States, but any data or materials it maintains in its branches or offices anywhere in the world. The entity even may be required to produce data stored at a non-US subsidiary.

What does this mean for non-US consumers of cloud services? First, US law enforcement authorities may serve FISA Orders, NSLs, warrants or subpoenas on any cloud service provider that is US-based, has a US office, or conducts systematic or continuous US business&mdasheven if the data is stored outside the United States. Thus, merely choosing a European cloud service provider is not enough to ensure that data is beyond the reach of US jurisdiction and the Patriot Act.

Second, US law enforcement authorities may serve FISA Orders, NSLs, warrants or subpoenas on any cloud service customer that is US-based, has a US branch, or conducts systematic or continuous US business&mdasheven if the data is stored outside the United States. Many European entities have a US presence, and their US presence will allow them to be subject directly to the authority of US law enforcement, regardless of what company they use for cloud storage.

The Patriot Act and European Data Protection

The European Commission's Directive on Data Protection generally prohibits the transfer of personal data to non-European Union countries that do not meet the EU "adequacy" standard for privacy protection. While the United States and the European Union share the goal of enhancing privacy protection for their citizens, the United States takes a different approach to privacy. To bridge these different privacy approaches, the Department of Commerce, in consultation with the European Commission, developed a "Safe Harbor" framework. By joining and adhering to the EU-US Safe Harbor Agreement, US companies can demonstrate that their data protection practices meet EU data protection requirements. European companies then can share data with US participants in the Safe Harbor agreement without violating their home country data protection laws.

The Safe Harbor Agreement contains a provision that allows US companies to comply with applicable US laws compelling the production of data, including the Patriot Act. It is anticipated, however, that at the World Economic Forum in January 2012, the European Commission will announce legislation to repeal the existing EU data protection directive and replace it with more a robust framework. The new legislation might, among other things, replace EU/US Safe Harbor regulations with a new approach that would make it illegal for the US government to invoke the Patriot Act on a cloud-based or data processing company in efforts to acquire data held in the European Union. The Member States' data protection agency with authority over the company's European headquarters would have to agree to the data transfer.

The foregoing developments may significantly affect the legal landscape for protection of data on the cloud servers in the cross-border context and, thus, should be monitored closely. However, it may be years before the new legislation is enacted (the current EU Data Protection Directive took three years to be enacted). By that time, changes in technology may present entirely new challenges and considerations.

Conclusion

Consumers of cloud services are wise to consider all types of risk to their data, whether from their home country's government or another country's government. Merely avoiding US cloud service providers based on concerns about the Patriot Act does not solve the problem. That choice alone provides no assurance that cloud data is beyond the reach of the Patriot Act, nor does it provide protection against the risk that non-US governments will access the cloud-stored data, either on their own initiative or in response to a MLAT request from the United States.

Rather than making a selection based solely on the home country of competing cloud providers, informed consumers of cloud services should (i) consult legal counsel in their home country, in any jurisdiction where their data may be stored, and in any jurisdiction where their cloud service provider does business (ii) closely review their cloud services contracts and ask their providers questions and (iii) carefully consider all the relevant risks before making a decision.

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© Copyright 2012. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.


The PATRIOT Act and the Constitution: Five Key Points

Jena Baker McNeill is a homeland security policy analyst.

Currently, two of the PATRIOT Act’s key provisions are up for reauthorization by Congress. As the deadline draws nearer, it is important to re-engage on the importance of the PATRIOT Act and explain how the law helps authorities to track down terror leads and dismantle plots before the public is in any danger.

Given the vast amount of misinformation about the act, it is equally important to lay out the constitutional basis for the PATRIOT Act as well as how it works to ensure that its powers are not abused.

Here are five key points about the PATRIOT Act:

  1. It protects civil liberties and provides for the common defense. The Constitution requires the President and Congress to respect and defend individual civil liberties but also provide for the common defense. The Constitution weighs heavily on both sides of the debate over national security and civil liberties—it is important to recognize both factors.
  2. Expectation of privacy is not unlimited. The Supreme Court has ruled that Americans enjoy a “reasonable” expectation of privacy however, this is not an unlimited expectation of privacy. This means that anything one exposes voluntarily to the public—or even to a third party—is not considered protected. Congress of course can expand these rights (and it has repeatedly) however, these protections yield to criminal and national security investigations.
  3. The law provides significant safeguards. The PATRIOT Act does not provide investigators with unfettered power to spy on innocent Americans. What it does do is ensure that national security investigators have the same tools at their disposal to investigate terrorists that law enforcement agents have to investigate and prosecute drug dealers and rapists. These tools come with significant procedural safeguards, oversight, and reporting requirements and are subject to routine and aggressive oversight by the FISA court and Congress.
  4. It has passed constitutional muster. No single provision of the PATRIOT Act has ever been found unconstitutional. This is a testament to the act’s limited applicability, procedural safeguards, and extensive oversight mechanisms—as well as the fact that it often provides more protections than are afforded in criminal proceedings.
  5. Disagreements over the role of government are different from actual abuse. Mere expansion of executive authority in the context of national security investigations alone does not in itself create actual abuse. Certainly, there are fundamental disagreements over the role of the executive branch during wartime. However, careful monitoring and vigilant oversight are oftentimes the answer to potential abuses of power—not all-out prohibition.

Opponents of the PATRIOT Act have repeatedly sought to repeal the act’s provisions or hamstring the act with yet another set of bureaucratic hoops. However, Congress has extensively modified and tailored the act over the years, adding new safeguards with substantial court oversight. Adding more hoops for investigators to jump through—in time-sensitive investigations—would kill the law’s ability to fulfill its very purpose: to help stop terrorism. Congress should:

  • Reauthorize the PATRIOT Act sunset provisions. This should also include reauthorization of Section 6001 of the Intelligence Reform and Terrorism Prevention Act (also known as the “lone wolf provision”).
  • Seek permanent reauthorization. Congress should permanently incorporate these tools into the broader counterterrorism framework.
  • Resist initiatives to erode key provisions. Despite repeated attempts to demonstrate abuse, little evidence has been proffered to demonstrate that the provisions in the act have been misused. Tying the hands of investigators through more procedural safeguards would not make the country any safer.

Little Danger of Abuse

The key to the PATRIOT Act is empowering government to do the right things while exercising oversight to prevent any abuse of authority. As long as lawmakers keep a vigilant eye on police authority, the federal courts remains open, and the debate about governmental conduct is a vibrant part of the American dialogue, the risk of excessive encroachment on our fundamental liberties is minimal.

Jena Baker McNeill is Policy Analyst for Homeland Security in the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.


Mexico’s Controversial Central Bank Bill Was Delayed. Here’s Why

(Bloomberg) -- In an eleventh-hour decision, Mexico’s congress put the brakes on a controversial bill that would have forced the central bank to buy dollars from local banks, even if their origin was dubious.

The legislation had already passed the senate last week and was scheduled for debate in the lower house on Tuesday, the final day before Christmas recess. Lawmakers from the ruling party of President Andres Manuel Lopez Obrador delayed the vote after heavy opposition from Banxico, as the central bank is known, as well as global banks from HSBC Holdings Plc to Bank of America Corp.

But that’s not the end of the bill. Legislators vow they’ll discuss it next month and bring a reworked version to the floor in February.

Here’s what you need to know about the legislation and why it’s so contentious:

What would the bill do exactly?

The bill, if passed in its current form, would require Banxico to act as the buyer of last resort for local banks that are having trouble selling their dollars back to the U.S. due to money laundering controls. Mexico’s central bank would add the dollars that it bought to its international reserves.

U.S. banks have increasingly severed relationships with Mexican financial institutions to protect themselves from sanctions following money laundering allegations against HSBC and Wachovia Corp.

That’s not a problem for banks operating in Mexico with correspondent entities abroad, but it crimps business to some domestic institutions, which can’t easily unload dollars.

Why are Banxico and global banks so concerned?

Banxico officials have complained that the legislation risks forcing the central bank to buy cash of dubious origin. The problem for policy makers is that many of the dollars circulating in Mexico come from drug trafficking or other illicit activities.

In a call on Monday morning with the lower house’s Finance Committee members, Mexico’s top bankers fretted that the bill could lead to money laundering sanctions on the central bank by international entities.

Because the dollars would be bought without the usual discounts, it would also act as a magnet for illicit money from abroad, drawing cash “from all the oligarchs of the world,” said Sergio Luna, a former chief economist at Citigroup Inc.’s local unit Citibanamex.

Alberto Ramos, the chief Latin America economist at Goldman Sachs Group Inc. in New York, said the quality of Banxico’s balance sheet may deteriorate because physical dollars flowing in can’t actually be used by the bank to intervene in currency markets, unlike U.S. Treasuries.

“There’s no silver lining,” Ramos said in an interview. “We’re looking at this with some concern. Who are they trying to help here?”

Why are proponents of the bill supporting it?

The rationale given by legislators backing the bill is that it would help migrant workers send dollars in cash back to Mexico and make it more affordable for them to exchange U.S. currency during visits to their home country. Those receiving cash from tourists would also benefit.

Officials at the central bank counter argue that just 1% of the money sent from the U.S. is in cash, with the rest sent via digital transfers. The central bank offered to work with legislators to come up with a solution for banks who are having trouble offloading excess dollars, which has become a growing problem in Mexico.

Who is pushing for this legislation?

One senator publicly claimed that the bill has been pushed by conglomerate Grupo Salinas. The group is controlled by Mexico’s third-richest man, Ricardo Salinas Pliego, who is also a supporter of Lopez Obrador.

Banxico deputy governor Jonathan Heath said in a tweet that it wasn’t worth changing the law to favor just one company, especially one with a negative record with the U.S. Securities and Exchange Commission. The tweet appeared to refer to Salinas’s empire, which includes bank Banco Azteca. A Grupo Salinas spokesperson said that while the company has a positive view of the law, it doesn’t take responsibility for it.

What happens next?

The legislation will be discussed in January by lawmakers, policy makers, banks and migrant groups and a modified draft will be presented in February. Lawmakers still want better conditions for Mexican migrants to send remittances home, the author of the bill, senate majority leader Ricardo Monreal, said on Tuesday.

In an interview before the bill was delayed, lower house majority leader Ignacio Mier said lawmakers in his party have discussed options such as removing the obligation of the central bank to buy the dollars, or capping the amount of cash it needs to purchase.

President Lopez Obrador, for his part, said the postponement will provide time to reach a consensus on the bill, while also adding that fears of its impact on Banxico’s autonomy were overblown.


Why Many Americans Are Averse to Unironic Expressions of Patriotism

Cynical leaders use flag-waving as a way to manipulate.

Pat Sajak, longtime host of Wheel of Fortune, recently taped an episode featuring contestants drawn from active-duty members of the United States military. Observing their dedication, patriotism, and willingness to serve and sacrifice, he was moved to voice his concerns about a divide he perceives in the America.

“I’m not talking about a political divide or a racial divide, but a divide based on — how to best phrase it? — an emotional investment in our nation,” he wrote. “The two Americas I see are the one populated by those who truly think of this nation as exceptional and who are comfortable with patriotic themes and moved by the majesty of the founding documents, and the one populated by those who find all that rather uncomfortable or, perhaps worse, don’t ever think about those things at all. Is it just our cynical Twitter age? Is it our political class? Our educational system? Is it our modern media? Is it an all-volunteer military? Is it a populace drowning in mind-numbing digital playthings? Why do so many people seem detached from our nation and all it stands for?”

Similar worries are widespread among a subset of Americans, many of them political conservatives. As the comments beneath Sajak’s post illustrate, their earnest concern hasn’t helped them to see the subject clearly, or to identify why some Americans are put off by displays of patriotism that other Americans venerate. The most significant explanation is simple. Confronted with displays of patriotism, many Americans react with ironic distance as a defense mechanism. They are wary that cynical actors are exploiting patriotic impulses and symbols as tools of manipulation because cynical actors frequently do just that.

Ironic detachment isn’t high on my list of worrisome problems the United States faces. But those who worry about such things ought to identify the real culprits. They shouldn't blame the zeitgeist, or the education system, or the modern media.

They ought to blame patriotism-baiters, or those who try to gain an illegitimate advantage in political debates, electoral campaigns, and legislative fights by acting as though the side one takes indicates how much one loves the United States. In recent history, the most glaring example of this dishonorable tactic was the governing majority’s decision to label controversial changes in national security policy passed after the September 11 terrorist attacks “the USA Patriot Act.” Lots of people who love the United States regard the Patriot Act as an abomination. I regard certain of its provisions as a stark betrayal of America’s founding ideals. (I think Thomas Jefferson would sooner burn an American flag than endorse it.) As the word “patriot” came to be associated with the Patriot Act, the word’s connotation changed, yet conservatives aren’t upset with the patriotism-baiters who are responsible. They favored the legislation, so they were happy to exploit the concept of patriotism to pass it and benefit politically from doing so.

The passage of the Patriot Act is hardly the only instance justifying cynicism about those who irrationally invoke patriotism in political debates. Longtime readers of National Review will recall an infamous column by a prominent Iraq War supporter that charged opponents of an invasion of acting from unpatriotic motives. Nor are conservatives alone in patriotism-baiting. Here’s a Daily Kos contributor arguing that conservatives are unpatriotic in part because some of them opposed federalizing airport security. Stepping back, American and world history is rife with examples of bad actors distorting and exploiting the patriotic impulses of the masses. Unthinking patriotism has contributed to millions of horrific deaths. The impulse to temper it with skepticism is a healthy one, and going too far in that direction has never resulted in any calamity.

A final reason for the backlash against uncritical patriotism is the tendency of those who invoke American exceptionalism to blind themselves to U.S. misdeeds. It is one thing to believe that America’s history and founding principles are exceptional, and another thing—deluded and profoundly unconservative—to believe that the U.S. is inoculated against acting badly, or is justified in doing things that Americans would condemn if anyone else did them.

Throughout its history, millions of Americans have betrayed the ideals of the Declaration in various ways. Almost always, those bad actors did so while waving the flag, posing as patriots, or viciously impugning the patriotism of their critics. Most Americans are perfectly willing to concede that description applies to champions of slavery, advocates of genocide against Native Americans, the shameful internment of Japanese Americans, Jim Crow defenders, and McCarthyists. They cannot and do not deny unsavory parts of U.S. history, and even celebrate contemporaneous critics of those policies as patriots. As they see it, Martin Luther King, to take one example, was a great American patriot.

But humans are typically better able to see the need for radical critiques of past injustices, and less willing to countenance critiques aimed at contemporary injustices, in part because they believe we’re more morally enlighetend than folks in the past. America has experienced moral progress in various areas, but the need for dissent is not behind us. Human nature has not changed and today’s Americans are not immune to bad acts. We must always worry about being blind to them or corrupted by power or fear. Yet the majority of Americans can hardly conceive of a future where staunch critics of today’s policies are regarded as forward-thinking patriots, even knowing how many times it has happened before.

At present, I am critical of many U.S. policies, and aware of a correlation between people who are less critical and people who invoke patriotic symbols and rhetoric as if it is the same as championing American principles. In the long term, I believe America will continue to improve itself. My faith in that proposition is inseparable from my love of country and my belief that, a quarter century hence, a majority will look back on the post-9/11 years with deep misgivings, celebrating as patriots the people who offered values-based dissents against water-boarding, indefinite detention, secret kill lists, and massive spying on innocents. Today, insofar as supporters of those policies act as if patriotism explains their positions, they continue to stoke cynicism about its trappings and to prompt ironic distance among those who love their country but want to make clear that much of what it’s doing is not being done with their consent or blessing. In this view, Presidents George W. Bush and Obama have both carried out un-American policies while wearing their American-flag lapel pins, and their critics will be damned if they're going to wave the same exploited, co-opted symbol.

Says Sajak, “Why do so many seem blissfully unaware of the opportunities America has provided to countless millions?” In fact, there is widespread awareness of those opportunities, but celebrating them in no way requires draping oneself in politicized patriotic symbols, nor does it imply that Americans ought to be blind to the country’s flaws or unwary of invocations of patriotism. In my opinion, America does more good than bad in the world, but the proportions, whatever they are, don’t change the fact that we have many specific things of which to be proud and many of which to be outraged and ashamed.


FBI admits Patriot Act snooping powers didn't crack any major terrorism cases

FBI agents can’t point to any major terrorism cases they’ve cracked thanks to the key snooping powers in the Patriot Act, the Justice Department’s inspector general said in a report Thursday that could complicate efforts to keep key parts of the law operating.

Inspector General Michael E. Horowitz said that between 2004 and 2009, the FBI tripled its use of bulk collection under Section 215 of the Patriot Act, which allows government agents to compel businesses to turn over records and documents, and increasingly scooped up records of Americans who had no ties to official terrorism investigations.

The FBI did finally come up with procedures to try to minimize the information it was gathering on nontargets, but it took far too long, Mr. Horowitz said in the 77-page report, which comes just as Congress is trying to decide whether to extend, rewrite or entirely nix Section 215.

Backers say the Patriot Act powers are critical and must be kept intact, particularly with the spread of the threat from terrorists. But opponents have doubted the efficacy of Section 215, particularly when it’s used to justify bulk data collection such as in the case of the National Security Agency’s phone metadata program, revealed in leaks from former government contractor Edward Snowden.

The new report adds ammunition to those opponents, with the inspector general concluding that no major cases have been broken by use of the Patriot Act’s records-snooping provisions.

“The agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders,” the inspector general concluded — though he said agents did view the material they gathered as “valuable” in developing other leads or corroborating information.

The report said agents bumped their number of bulk-data requests under Section 215 from seven in 2004 to 21 in 2009 as a result of technological advances and legislative changes that the intelligence community believed expanded the reach of the law.

Increasingly, that meant scooping up information on those who weren’t targets of a terrorism investigation, Mr. Horowitz said. He said that while Section 215 authority allows the government to do that, the FBI needed more checks to make sure it was using the power properly.

“While the expanded scope of these requests can be important uses of Section 215 authority, we believe these expanded uses require continued significant oversight,” he concluded.

The report was an update to a previous study done in 2008 that urged the department to figure out ways to minimize the amount of data it was gathering on ordinary Americans even as it was targeting terrorists.

In Thursday’s report Mr. Horowitz said the administration finally came up with procedures — five years later. He said it never should have taken that long but that he considers that issue solved.

The report was heavily redacted, and key details were deleted. The entire chart showing the number of Section 215 requests made from 2007 through 2009 was blacked out, as was the breakdown of what types of investigations they stemmed from: counterintelligence, counterterrorism, cyber or foreign intelligence investigations.

Section 215 of the Patriot Act is slated to expire at the end of this month. The House, in an overwhelming bipartisan vote, passed a bill to renew it but also to limit it so the government could no longer do bulk collection such as the NSA phone data program. That legislation is known as the USA Freedom Act.

But Senate Republican leaders have balked, insisting the NSA program and Section 215 should be kept intact as is.

Majority Leader Mitch McConnell, who is leading the fight to protect the NSA program, is counting on his opponents not being able to muster the 60 votes needed to pass the bill, leaving them with the choice of either extending Section 215 or seeing all of the powers expire — including those that would go after specific terrorist suspects. Mr. McConnell believes that, faced with that choice, enough of his colleagues will vote to extend all of the powers.

FBI Director James B. Comey asked Congress this week to make sure Section 215 and two other parts of the Patriot Act, also slated to expire at the end of the month, are preserved. Those other powers include the ability to target lone wolf actors and to switch wiretaps if suspects switch their phones.

As for Section 215, Mr. Comey said Congress should at least preserve the power to go after individuals’ records.

“If we lose that authority, which I don’t think is controversial with folks, that is a big problem,” he said Wednesday at a forum at the Georgetown University Law Center.

But most of the Section 215 debate has revolved around bulk collection. Earlier this month a federal appeals court ruled that the Patriot Act does not envision the kind of phone program the NSA has been running, which gathers and stores five years’ worth of records of the numbers, dates and durations of calls made in the U.S.

For anti-bulk surveillance advocates, Thursday’s report further undermines Section 215.

“This report adds to the mounting evidence that Section 215 has done little to protect Americans and should be put to rest,” said American Civil Liberties Union Staff Attorney Alex Abdo.

Bulk data collection creates false leads, ties up investigative resources and, essentially, undermines national security, said Stephen Kohn, an attorney at Kohn, Kohn & Colapinto, LLP and advocate for government whistleblowers. Also, increased FBI dependency on that bulk data collection indicates that the agency is lacking the appropriate resources for conducting successful counterterrorism operations, Mr. Kohn said.

“They have a large amount of agents who are working counterterrorism that have no human resources, no leads, no infiltrations, so they have nothing else to do,” he said. “In other words, when they staffed up and made [counterterrorism] a major priority, these agents need to do something. And they’re doing what they know to do, and that’s electronic surveillance.”

But former FBI agents said opponents wanted to callously cripple one of the government’s investigative agencies by depriving it of a critical data collection tool at a time of new terror threats.

“ISIS is singing a siren song, calling people to their death to crash on the rocks — and it’s the rocks that ISIS will take credit for,” said Ron Hosko, president of Law Enforcement Legal Defense Fund and former assistant director of the FBI. “They’re looking for those who are disaffected, disconnected and willing to commit murder. So if we’re willing to take away tools, OK, congressman, stand behind it [and] take the credit for putting the FBI in the dark.”


How We Got From 9/11 to Massive NSA Spying on Americans: A Timeline

Dave Gilson

Alex Park

AJ Vicens

Gulnara Samoilova/ZUMA, Eric Draper/White House, <a href="http://www.darpa.mil/">US Department of Defense</>/DARPA

Recent news reports exposed how the National Security Agency has been collecting millions of Americans’ phone data and online communications. Here’s how we got from the terrorist attacks of 9/11 to the massive domestic spying operations of today:

September 11: Nearly 3,000 people are killed when terrorists fly planes into the World Trade Center and the Pentagon, and crash another in Pennsylvania. Soon afterward, the NSA begins a “special collection program” to track the communications of Al Qaeda leaders and suspected terrorists.

October: Six weeks after 9/11, President Bush signs the USA Patriot Act, which lowers protections against government collection of Americans’ communications and personal records.

February: The New York Times reveals that the Pentagon is “developing technologies to give federal officials instant access to vast new surveillance and information analysis systems” under a new agency called the Information Awareness Office, which later gave way to the Total Information Awareness program.

March: White House counsel Alberto Gonzales and Chief of Staff Andrew Card visit Attorney General John Ashcroft in the hospital seeking to persuade him to reauthorize the NSA’s domestic warrantless wiretapping program. The program will be revealed to the public a year and a half later by the New York Times.

May: USA Today reports the NSA has been tracking millions of Americans’ phone calls with the help of major telecom companies. A few weeks later a former AT&T technician reveals that the company let the NSA tap into its fiber-optic lines in 2002, enabling it to monitor a majority of internet and phone traffic in the United States.

September: Microsoft becomes the first major internet firm to cooperate with the NSA’s PRISM program, giving the NSA the ability to collect data on search history, email, file transfers and live chats. Over the next few years, Yahoo, Google, Facebook, and other companies become part of the program, which won’t be revealed to the public until 2013.

July: Bush signs the FISA Amendments Act, which retroactively codifies the warrantless wiretapping program and compels telecoms and internet firms to give the government access to private communications if one party is “reasonably believed” to be outside the United States. It also gives telecoms retroactive immunity for handing over customers’ private data without a warrant.

January: Google begins giving data to the NSA under the PRISM program.

June: A federal judge upholds immunity for telecoms that handed over private information. The same day, Facebook starts participating in the NSA’s PRISM program.

March 10: A federal judge rules that the NSA warrantless wiretapping program started during the Bush administration is illegal. The ruling, based on a 2006 lawsuit, will be overturned on a technicality in 2012.

April 15: Federal authorities charge Thomas Drake, an NSA employee who passed information about the agency’s activities to reporters, under the Espionage Act. He accepts a plea deal on a lesser charge in 2011.

January: The NSA begins construction of a massive, 1 million square foot, $2 billion data center in Utah. “Just as we defend our lands, America also needs to also defend our cyberspace,” Sen. Orrin Hatch (R-Utah) says at the groundbreaking ceremony. It is scheduled to be completed in September 2013.

May: The Patriot Act is renewed and signed by President Barack Obama.

May: Sen. Ron Wyden (D-Ore.), who as a member of the Senate Intelligence Committee has access to classified materials, warns: “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”

April-May 2012: As part of a leak investigation, the Department of Justice secretly obtained two months worth of phone records from multiple offices and individual reporters at the Associated Press. It’s top executive calls the DOJ’s actions a “massive and unprecedented intrusion into the newsgathering process.”

June: The inspector general of the Office of the Director of National Intelligence says it “would itself violate the privacy of US persons” to reveal how many people the NSA had tracked inside the country.

July: In a letter to Wyden, the Office of the Director of National Intelligence (DNI) acknowledges that some NSA activities have “circumvented the spirit of the law” and that on one occasion a FISA judge found that some of NSA’s activities violated the Fourth Amendment.

December: Obama signs a five-year extension of the FISA Act. Amendments to provide more oversight of mass surveillance are defeated in the Senate.

March: Wyden asks DNI chief James Clapper in a congressional hearing if the NSA collects information on millions of Americans.

June: The Guardian reports that the NSA has been collecting millions of Verizon customers’ call data. A day later, the Guardian and the Washington Post reveal the existence of PRISM. Now under pressure from the revelations, Clapper admits that he lied in his congressional testimony.

June: “Nobody is listening to your telephone calls. That’s not what this program’s about,” Obama says at a speech in Silicon Valley. “But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism.” He adds, “”You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience.”

August 15: Based on more Snowden documents, the Post reports that the NSA had “broken privacy rules or overstepped its legal authority thousands of times each year” since 2008. Sens. Wyden and Mark Udall (D-Colo.) say the reported violations represent “just the tip of a larger iceberg.”

August 29: The Post publishes details of the United States’ $52.6 billion intelligence “black budget,” more than $18 billion of which is dedicated to the CIA and NSA data collection and analysis operations.

September 5: The New York Times, Guardian, and ProPublica report that the NSA has engineered ways to foil virtually all encryption protecting the average person’s “everyday communications in the Internet age.”

September 9: Der Spiegel reports that the NSA has the capability to bypass security features of iPhones, Android devices, and BlackBerrys, allowing it to access contacts, location data, photos and perhaps credit card numbers and passwords.

November 14: The New York Times reports that the CIA is covertly collecting bulk records of international financial transactions under the same laws that allow for the NSA’s bulk data collection, suggesting that the full scope of the US government’s bulk data collection efforts are unkown.


Watch the video: USA PATRIOT ACT. OFAC. - Everything you should know!! (January 2022).