How the USA Patriot Act Expanded Federal Subpoena Powers
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How the USA Patriot Act Expanded Federal Subpoena Powers
The USA Patriot Act, passed by Congress in 2001 after the 9/11 terrorist attacks, gave federal law enforcement and intelligence agencies expansive new powers to gather information in terrorism investigations. One of the most significant changes was expanding the government’s ability to issue subpoenas for personal records and data.
A subpoena is a legal demand for documents, records, testimony or other evidence relevant to an investigation. Subpoenas are commonly used in criminal cases and allow prosecutors to compel individuals or organizations to turn over information without a search warrant.
Before the Patriot Act, federal officials had limited authority to issue subpoenas in national security cases. The act authorized new types of subpoenas that removed many previous restrictions.
National Security Letters
One major expansion was the creation of national security letters. These allow the FBI to demand certain records from companies without court approval, if the data is relevant to a terrorism or espionage investigation.
National security letters can be used to obtain communication and financial records, such as phone calls, emails and bank transactions. The FBI can issue them directly without a judge’s oversight.
The Patriot Act significantly eased the rules for national security letters. Previously, they could only be used to gather records from communications companies. Now they can be issued to many types of businesses, including financial institutions, travel agencies, car dealerships, casinos, jewelry stores, and more.
In the past, the FBI had to assert specific facts showing the information was linked to an investigation. Now, the letters only require that the data is “relevant” to an authorized probe, a vague standard that gives the FBI wide latitude.
The Patriot Act also allowed other agencies besides the FBI to start using national security letters for the first time, including the CIA and Pentagon.
Critics argue national security letters violate privacy rights and lead to fishing expeditions, with the FBI collecting troves of data on innocent Americans not suspected of crimes. However, supporters say they are an essential investigative tool and the information is still subject to minimization rules that limit how it can be used and shared.
Section 215 Orders
Another major change was expanding the government’s ability to obtain “tangible things” through Section 215 orders, named after a section of the Patriot Act.
These court orders compel businesses to hand over any records or other items relevant to a national security investigation. The FBI and other agencies can get a 215 order by applying to the Foreign Intelligence Surveillance Court, which meets in secret.
Before the Patriot Act, such orders were limited to records from hotels, car rental agencies, storage facilities and other businesses whose records were deemed less private. The act removed these restrictions, enabling 215 orders to potentially apply to any business.
The government used Section 215 orders to secretly collect data on millions of Americans’ phone calls. After the program was revealed by Edward Snowden in 2013, Congress passed reforms requiring more transparency around 215 orders.
Critics argue these orders amount to general warrants prohibited by the Fourth Amendment. However, supporters contend the FISA court provides sufficient oversight to protect rights.
Delayed Notice Search Warrants
Traditionally, if police conduct a search and seize property, the owner must be notified and given a copy of the warrant. The Patriot Act created an exception for cases where immediate notification could jeopardize an investigation.
It authorized “delayed notice search warrants” that allow the government to conduct secret searches and wait up to 30 days before notifying the owner. The delay period can also be extended indefinitely by a court.
Supporters argue this allows investigators to track suspects and gather evidence without tipping them off. Critics counter it enables unchecked government snooping into homes and businesses without owners’ knowledge.
Roving Wiretaps
The Patriot Act also made it easier for law enforcement to get “roving wiretaps” that follow a surveillance target even when they switch phones or communication devices.
Traditionally, wiretap orders only applied to a specific phone number or IP address. But under the Patriot Act, if investigators can show the specified device is being used to evade surveillance, the order can be expanded to cover additional devices.
Supporters say this closes a loophole that let terrorists and spies avoid monitoring by swapping phones or online accounts. Critics argue it grants too much latitude for dragnet surveillance that indiscriminately sweeps up innocent Americans’ communications.
Sneak and Peek Searches
The Patriot Act expanded the use of “sneak and peek” warrants in terrorism cases. These allow police to secretly enter premises and search or copy data without immediately notifying the owner.
Notification can be delayed for 30 days or longer if a court approves. The target may never be told about the search if prosecutors can show it would harm the investigation.
Supporters argue this protects investigations and prevents suspects from destroying evidence or fleeing. Critics say sneak and peeks enable unchecked government intrusions upon private homes and businesses.
Access to Business Records
The Patriot Act made it easier for investigators to obtain an order compelling businesses to turn over records or documents. Previously such orders were mainly available through the grand jury process.
Now investigators can get a court order for business records by simply showing they are “relevant” to an authorized terrorism investigation. Critics argue this gives the government too much unchecked authority to rifle through innocent Americans’ sensitive personal information.
Traditionally, records obtained through FBI investigations were restricted to the Justice Department. The Patriot Act authorized greater sharing of information with other agencies like the CIA and NSA.
Supporters contend this information sharing is necessary to “connect the dots” between clues gathered by different agencies. Critics argue it leads to unchecked data mining and surveillance of ordinary Americans.
Oversight and Reform Efforts
Civil liberties groups have raised concerns about inadequate oversight and accountability for how federal agencies use their expanded Patriot Act powers. Some key issues include:
- Lack of transparency around the scale of surveillance programs and how many Americans are impacted. Many details remain secret, making oversight difficult.
- Insufficient protections for innocent Americans whose data is collected through bulk surveillance methods like national security letters.
- Overly broad legal standards like “relevant to an investigation” that give agencies wide latitude to collect information.
- Weaknesses in the Foreign Intelligence Surveillance Court system, which meets in secret and mainly hears the government’s side.
- Need for more robust public reporting on how powers are used and compliance issues or abuses.
- Calls for the Patriot Act’s surveillance provisions to be reformed or allowed to expire, rather than permanently extended.
In response to criticism, Congress has enacted some reforms aimed at increasing transparency and protecting privacy rights:
- The USA Freedom Act of 2015 ended the NSA’s bulk collection of Americans’ phone records and required more reporting on surveillance programs.
- The 2018 reauthorization required the FBI to report more details about national security letter usage.
- Additional oversight mechanisms have been implemented by the Department of Justice and intelligence community.
However, many civil liberties advocates argue the reforms have not gone far enough. Groups like the ACLU are calling for Section 215 and other Patriot Act powers to be substantially revised or allowed to sunset, unless stronger protections are enacted. They warn of inadequate safeguards against government overreach in domestic spying programs.
Overall, the debate continues around whether enhanced surveillance powers implemented after 9/11 represent a necessary counterterrorism tool or an infringement of constitutional freedoms. Additional oversight and transparency may help strike the right balance between security and liberty.