March 2004: In addition to working to amend Section 215, the PEN Campaign for Core Freedoms urges its supporters to also learn about and support the amendment of the following troubling provisions of the USA Patriot Act:

Section 218: Foreign Intelligence Information

Section 218 amends the Foreign Intelligence Surveillance Act of 1978 by loosening the usual requirements for federal searches of personal information, i.e. probable cause to believe a criminal act had occurred and a warrant. These searches may now be authorized by a secret FISA court without any public knowledge or government accountability.

Before the Patriot Act, the FISA court could grant a warrant if the "primary purpose" of the search was to gather foreign intelligence. Now a warrant may be granted if intelligence gathering is merely "a significant purpose"; the individual being searched no longer needs to be connected to foreign espionage, as required by the original 1978 Act. Now, not only may the government utilize a general concern for national security as the basis of an investigation but it may also use the fruits of its investigation for prosecution, whereas before, the results could only be used for intelligence gathering. What was once used as a tool in conducting investigations of specific federal and foreign espionage investigations may now be used against Americans for searches of normal criminals with minimal judicial oversight from a court that operates behind closed doors.

As with Section 215, libraries and bookstores may become targets of a Section 218 court order. However, the fact of the search is kept secret from the subject under investigation and does not have to be disclosed unless the information is used in a legal proceeding.

Section 214: Pen register and trap and trace authority under FISA

Section 214 broadens the reach of the pen register/tap-and-trace power as determined by the Foreign Intelligence Surveillance Act of 1978 by making it available in both criminal and foreign intelligence investigations if the government can certify to the secret FISA court that the information obtained would be "relevant to an ongoing investigation." The FISA court serves as merely a rubber stamp on the investigation; it may not require verification of the allegations before authorizing a phone tap.

As with Section 215, libraries and bookstores may become targets of Section 214 court order. The recipient of an order is legally required to cooperate with all officials’ requests, but they can not disclose that they are under investigation. The fact of search must be kept secret unless the information is used in a legal proceeding.

Under 216, these provisions may also be applied to Internet surveillance.

Section 206: Roving surveillance authority under FISA

Section 206 authorizes roving wiretaps, which include any phone or computer that a target of investigation may use. Whereas taps formerly had to be used for specific phones or computers, under the PATRIOT Act, every computer in the New York Public Library could be surveilled if a secret FISA court rubber-stamps the Department of Justice’s suspicion of criminal or terrorist activity.

In conjunction with Section 220, which allows a judge to authorize wiretaps nationally rather than limiting her powers to her own jurisdiction, the ability for judicial oversight is severely limited, especially given the secret and closed nature of the FISA court.

Section 505: Miscellaneous national security authorities

Section 505 is similar to Section 215, though even broader in scope: It authorizes administrative subpoenas of personal records, which require no probable cause or judicial oversight, simply by writing a "National Security Letter" (NSL).

Pre-PATRIOT Act, NSLs could only be used in investigations if the subject was suspected of foreign espionage. Now they may be issued by local FBI field offices, rather than by senior officials, and used against both American citizens and non-citizens, regardless of whether they are suspected of terrorist or criminal activity. Unlike Section 215 orders, NSLs may be issued without even the oversight or approval of the secret FISA court.

Due to the great ease with which FBI officials are able to issue NSLs, this legislation is likely used much more often and presents greater risk to individual privacy than Section 215. Indeed, when the ACLU filed an FOIA suit against the Department of Justice in 2002, they found that the log of NSLs issued by the FBI since the passage of the PATRIOT Act was more than five pages long. However, almost all of the logs had been redacted due to national security concerns.

As with Section 215, libraries and bookstores may become targets of these investigations. The recipient of an NSL is legally required to cooperate with all of the officials’ requests, but they can not disclose that they are under investigation. The fact of search must be kept secret unless the information is used in a legal proceeding.

Unlike the above-mentioned provisions, Section 505 is not scheduled to sunset in 2005.


>> Read the full text of the Patriot Act as well as recent legislation