Patriotism v. The USA PATRIOT Act

Is the USA PATRIOT Act an act of patriotism?

For me, the USA PATRIOT Act ranks down with the Alien Act and Sedition Act as examples of the worst legislation possible. Although Franklin wrote this in 1755 and was not addressing local or colony defense, his statement “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” bears on the issue of the usurpation of the individual’s freedoms in favor of community “security.”

Summary

I don’t oppose intelligence collection, by the proper authorities, against individuals who are known or suspected to be threats to individuals or the community. We must and continue to rely upon the Department of Justice, the Department of Homeland Security, the Department of Defense, and the Federal Bureau of Investigation to identify those individuals and to seek legal instruments—warrants—to enhance surveillance of their activities.

The blanket approach whereby all communications or communications metadata of all citizens are open to collection and research without an individual warrant is, for me, inexcusable and, therefore, intolerable.

No, I don’t want the disestablishment of the NSA or any of our agencies in the intelligence community. This is a matter of constitutionality; I strongly support our Constitution, the First Amendment, and all other amendments.

Communications Metadata Capture

It seems to me that the communications companies already capture the metadata of their subscribers. So, why a law authorizing or requiring them to do so? If the government identifies an individual, then the government can seek a warrant from the court (whichever court) to demand those data from the appropriate company. The procedure required to obtain such warrants already exists. Why, again, do we need a new law? Of course, I am neither a Constitutional scholar nor a lawyer, but I'm confused and perplexed by this.

Metadata Retention

The government can require communications companies to retain the metadata of specifically targeted persons, under a warrant, forever as far as I’m concerned. At least, that is, until a case is prosecuted and the adjudication of that case results in dismissal with prejudice or a not-guilty verdict. That’s our way.

Not All Are Suspect

The assumptions that all citizens are suspect and that we have no privacy rights—that is intolerable.

The USA PATRIOT Act

The aftermath of the Al Qaeda attacks on September 11, 2001 pushed the US Congress to pass legislation that would work to prevent such attacks in the future. That goal is reasonable and necessary. However, Congress, in the resulting USA PATRIOT Act, addressed multiple legal issues that would normally have been addressed individually by separate laws in the Titles within the Act. These are:

  1. Enhancing domestic security against terrorism
  2. Surveillance procedures
  3. Anti-money-laundering to prevent terrorism
  4. Border security
  5. Removing obstacles to investigating terrorism
  6. Victims and families of victims of terrorism
  7. Increased information sharing for critical infrastructure protection
  8. Terrorism criminal law
  9. Improved intelligence
  10. Miscellaneous

Interestingly, Congress inserted a “Sense of Congress” that decries and disavows discrimination against “Arab and Muslim Americans.”

My concerns with this Act lie in certain provisions of Title II.

Surveillance procedures

Title II expands federal powers to intercept, shareg, and use private telecommunications, especially electronic communications. It updates rules for computer crime investigations and sets procedures and limitations for individuals who feel their rights have been violated to seek redress. The language also includes a section regarding trade sanctions against countries that support terrorism.

John Podesta, former chief of staff for President Bill Clinton, wrote this regarding the PATRIOT Act in 2002:

When we decide, however, to expand surveillance powers to track terrorists, all residents, not just the terrorists, are affected. A common problem running through many of the new authorities contained in the Patriot Act is the reliance on executive branch supervision rather than meaningful review by a neutral magistrate of the potentially highly intrusive surveillance techniques that are authorized.

Indeed, the PATRIOT Act (and its proposed successor, the USA FREEDOM Act) amend other laws, such as the Foreign Intelligence Surveillance Act (as amended in 2008), to achieve a difficult goal:

Identify potential terrorists before they commit an act of terror.

I do not want terrorists to commit any act of terror in my country. I don’t want terrorists to commit terrorist acts anywhere; none of us wants that. I do not want to make it easy for a known or suspected terrorist to plan or execute any such actions. For that matter, I don’t want anyone to murder anyone.

How can law enforcement identify a potential murderer. potential bank robber, or a potential securities fraudster before that person commits a crime?

Sometimes the potential perpetrator does something that alerts others, including law enforcement, to the possibility or probability of a crime-in-the-making. Intelligence agencies and law enforcement must be alert to even the vaguest of leading indicators and, using their protocols or rules of engagement, seek the necessary orders from the FISA Court to more clearly identify terrorist plots or to determine the absence of such plots. In all cases, I believe, these orders must be directed toward individuals, not all citizens or residents otherwise protected by our Constitution.

Tortured acronyms are a personal pet peeve. As is the use of “to utilize” rather than “to use.”

Sunset provisions

These sections under Title II were to expire after December 31, 2005. Congress extended their sunset twice; first, to February 3, 2006, then to March 10, 2006, and later through 2009. The USA PATRIOT Act was reauthorized in 2010 and in 2011. President Obama, when signing the latest reauthorization, promised that the USA PATRIOT Act would “live” only until June 1, 2015“live” only until June 1, 2015.

SectionSection title
201 Authority to intercept wire, oral, and electronic communications relating to terrorism
202 Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses
203(b) Authority to share electronic, wire and oral interception information
204 Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications
206 Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978
207 Duration of FISA surveillance of non-United States persons who are agents of a foreign power
209 Seizure of voice-mail messages pursuant to warrants
212 Emergency disclosure of electronic communications to protect life and limb (Note: Repealed by the Homeland Security Act of 2002)
214 Pen register and trap and trace authority under FISA
215 Access to records and other items under the Foreign Intelligence Surveillance Act
217 Interception of computer trespasser communications
218 Foreign intelligence information
220 Nationwide service of search warrants for electronic evidence
223 Civil liability for certain unauthorized disclosures
225 Immunity for compliance with FISA wiretap

 

The USA FREEDOM Act

This bill originally introduced in both houses of Congress on October 29, 2013 to modify and extend the USA PATRIOT Act. The House of Representatives passed an amended version of the legislation on May 22, 2015 despite objections from various organizations, such as the American Library Association. The Senate has not  yet voted on its version of the bill. The title stands for:

Representative Jim Sensenbrenner, chairman of the House Judiciary, sponsored and introduced the USA FREEDOM Act in 2013:

To rein in the dragnet collection of data by the National Security Agency (NSA) and other government agencies, increase transparency of the Foreign Intelligence Surveillance Court (FISC), provide businesses the ability to release information regarding FISA requests, and create an independent constitutional advocate to argue cases before the FISC.

Rep. Sensenbrenner introduced the USA Patriot Act in 2001. However, by 2013, Rep. Sensenbrenner was quoted as saying that the NSA communications metadata collection program should be ended. In October 2013, Rep. Sensenbrenner joined with Senator Patrick Leahy, Ranking Member of the Senate Judiciary Committee, in this joint statement:

The intelligence community has failed to justify its expansive use of [the FISA and Patriot Act] laws. It is simply not accurate to say that the bulk collection of phone records has prevented dozens of terrorist plots. The most senior NSA officials have acknowledged as much in congressional testimony. We also know that the FISA court has admonished the government for making a series of substantial misrepresentations to the court regarding these programs. As a result, the intelligence community now faces a trust deficit with the American public that compromises its ability to do its job. It is not enough to just make minor tweaks around the edges. It is time for real, substantive reform.

Politico, “The Case for NSA Reform

Tortured Acronyms

The titles of these Acts are capitalized throughout because they are really acronys (to some, a backronyms).

USA PATRIOT Act

P Provide
A Appropriate
T Tools
R Required (to)
I Intercept (and)
O Obstruct
T Terrorism [Act]

 

USA FREEDOM Act

U Uniting (and)
S Strengthening
A America
F Fulfilling
R Rights (and)
E Ending
E Eavesdropping
D Dragnet-collection (and)
O Online
M Monitoring [Act]

 

Now these are really tortured acronyms!


Definitions

Contents

(Per the definition of trap and trace devices and pen registers) As defined in 18 U.S.C. § 2510(8); with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.

Court of Competent Jurisdiction

Any United States district court (including a magistrate judge of such a court) or any US court of appeals having jurisdiction over the offense being investigated. (Title 18 also allows State courts that have been given authority by their State to use pen register and trap and trace devices.)

FISA

This is the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008. (You can also download the original Foreign Intelligence Surveillance Act of 1978.)

Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Court was established by Congress in 1978. The Court can be called to meet at any time according to a given situation. Only government lawyers are present and, in most cases, all proceedings and records are classified and unavailable to the public.

Pen Register

This is a device that captures dialing, routing, addressing, or signaling information from an electronics communication device. It limited the usage of such devices to exclude the capturing of any of the contents of communications being monitored.

Trap and Trace Device

These are devices or processes that capture dialing, routing, addressing, or signaling information from an electronics communication device.

Title 1 §102. Sense of Congress Condemning Discrimination Against Arab and Muslim Americans.

(a) FINDINGS.—

Congress makes the following findings:

(1) Arab Americans, Muslim Americans, and Americans from South Asia play a vital role in our Nation and are entitled to nothing less than the full rights of every American.

(2) The acts of violence that have been taken against Arab and Muslim Americans since the September 11, 2001, attacks against the United States should be and are condemned by all Americans who value freedom.

(3) The concept of individual responsibility for wrongdoing is sacrosanct in American society, and applies equally to all religious, racial, and ethnic groups.

(4) When American citizens commit acts of violence against those who are, or are perceived to be, of Arab or Muslim descent, they should be punished to the full extent of the law.

(5) Muslim Americans have become so fearful of harassment that many Muslim women are changing the way they dress to avoid becoming targets.

(6) Many Arab Americans and Muslim Americans have acted heroically during the attacks on the United States, including Mohammed Salman Hamdani, a 23-year-old New Yorker of Pakistani descent, who is believed to have gone to the World Trade Center to offer rescue assistance and is now missing.

(b) SENSE OF CONGRESS.—

It is the sense of Congress that—

(1) the civil rights and civil liberties of all Americans, including Arab Americans, Muslim Americans, and Americans from South Asia, must be protected, and that every effort must be taken to preserve their safety;

(2) any acts of violence or discrimination against any Americans be condemned; and

(3) the Nation is called upon to recognize the patriotism of fellow citizens from all ethnic, racial, and religious backgrounds.