The Sun Also Sets:
Understanding the Patriot Act "Sunsets"

The Patriot Act contains more than 150 separate sections in 10 major titles.  About a tenth of the law expires or "sunsets" this year unless Congress votes to reauthorize it.  The sections discussed and listed below are the most significant provisions that Congress must examine as it deliberates again on the Patriot Act.

Even though all of the sections listed below raise civil liberties concerns, the Patriot Act contained a handful of truly radical expansions of criminal and intelligence search and surveillance authority, only some of which sunset.  These changes represent the most dangerous sections of the law. 

These provisions also embody the ACLU's broader concern post-9/11 that the White House has demanded and received an unwarranted amount of power, which weakens the checks and balances that maintain our system of limited government and preserve our constitutional liberties. 

Congress should use the debate over the sunsets to highlight these provisions in particular, but should also take the opportunity to deliberate more broadly on the state of our freedoms in the "war on terrorism."

Priority sections include:

· Section 213, which expands the government's ability to execute criminal search warrants (which need not involve terrorism) and seize property without telling the target for weeks or months.

· Section 215, which allows the FBI to seize a vast array of sensitive personal information and belongings - including medical, library and business records - using secret intelligence tools that do not require individual criminal activity.  Although the records can only be seized pursuant to a court order, judges are compelled to issue these orders, making such judicial review nothing more than a rubber stamp.

· Section 505, which lowers the evidentiary standard for "national security letters," or NSLs, which are issued at the sole discretion of the Justice Department, impose a blanket gag order on recipients and are not subject to judicial review.  NSLs can be used to seize a wide variety of business and financial records, and in certain instances could be used to access the membership lists of organizations that provide even very limited Internet services (message boards on the ACLU's website for instance).

Background on Title II of the Patriot Act and the Foreign Intelligence Surveillance Act

The Patriot Act "sunsets" are, primarily, a small group of provisions in Title II of the law.  Title II was the main vehicle by which the White House and Justice Department set about making radical changes to criminal and intelligence laws that permit the authorities more authority to surveil, monitor and investigate Americans with fewer checks on abuse.

The sunseted Title II sections will expire on Dec. 31, 2005, unless Congress affirmatively votes to renew them.  The ACLU believes Congress should use the debate over the sunsets to examine the poor condition of checks and balances and the separation of powers in our political system and to bring the Patriot Act back into line with the Constitution.   Without a robust system of checks and balances, we run the risk of centralizing too much authority in any one branch of government or individual.  As the Constitution's framers understood so well, centralizing authority poses the greatest danger to invidividual civil liberties. 

The ACLU also urges Congress to examine other provisions in the Patriot Act, like Section 802, which allows prosecutors to extend the definition of "domestic terrorism" to protesters who engage in civil disobedience.  These are listed below.

Without Congressional action, much of Title II and the Patriot Act will remain permanent.  Under section 224, all of Title II will expire, with the exception of 11 sections that are permanent.  Also, a grandfather clause allows the authorities to continue to use expired powers after the sunset date so long as they are being used in a specific investigation launched before that date.

In order to understand precisely what much of Title II is about, once must understand how federal law, and in particular the Foreign Intelligence Surveillance Act (or "FISA"), maintain control over America's intelligence and law enforcement agencies.  After Watergate and the revelations that the National Security Agency, the FBI, and other federal agencies had been wiretapping innocent Americans in the name of national security, Congress passed FISA to require judicial oversight electronic surveillance and other secret search powers in foreign intelligence and counter-intelligence investigations. 

FISA, passed in 1978, imposed certain standards and created a special, top-secret intelligence court to enforce those standards in intelligence investigations.  The primary function of the problem sections of the Patriot Act was to weaken this oversight, which makes it more likely that the government, either accidentally or deliberately, will abuse its authority.

Troubling Sections That Sunset

Sec. 201  Expands wiretap-eligible federal criminal offenses.

Sec. 202  New wiretap authority relating to computer crime.

Sec. 203(b)  Allows disclosure of information gathered in criminal investigation, including wiretaps, to intelligence, immigration and "national security" officials.

Sec. 203(d) Same as subsection 203(b) above.

Sec. 206  Creates roving wiretap authority (that is, the court order follows the target, not the phone) under FISA; did not include a requirement (which is included in other roving wiretap laws) that the eavesdropper make sure the target is actually using the device being monitored.

Sec. 207  Permits FISA wiretaps to continue for as long as a year; expands duration of physical search orders.

Sec. 212  Government can demand records and content from communications providers without consent, notice or judicial review in an emergency.

Sec. 214  Permits the government to get the telephone numbers dialed to and from a particular phone as well as Internet "routing" information that may contain some substantive content of the communications, with minimal judicial review under FISA.

Sec. 215  Allows the FBI to use FISA court orders to seize any "tangible thing," including highly sensitive medical, library, business and travel records, from a wide variety of institutions under an extremely weak standard of judicial review.

Sec. 217  Interception of "computer trespasser" communications without a judge's assent.

Sec. 218  Allows criminal investigators to use espionage powers, which require little evidence of criminal wrongdoing, even if gathering foreign intelligence is only a "significant purpose" of the investigation, instead of the more demanding "primary purpose" that was the law before this provision passed.

Sec. 220  Establishes nationwide service of search warrants for electronic evidence, opening the door to judge-shopping.

Permanent But Problematic Patriot Act Sections

Sec. 213  Authorizes and expands ""sneak and peek"" delayed-notice search warrants.

Sec. 216  Permits the seizure of Internet "routing" information (e.g., website links, addressing information) in criminal cases under a low standard of proof, without protections against the unwarranted seizure of possible content.

Sec. 219  Establishes nationwide service of search warrants for physical evidence.

Sec. 411 Expanded grounds for deportation and exclusion from the country for alleged support of terrorist groups or causes.

Sec. 412 Permits the attorney general to unilaterally detain non-citizen terrorist suspects for seven days without charges; requires judicial review at six month intervals for indefinite detention.

Sec. 505 Authorizes the government to seize financial, Internet, credit and telephone records without prior judicial review and without articulable suspicion that the target is a terrorist or spy.

Sec. 507  Expands access to student records without individual suspicion.

Sec. 508 Same as Sec. 507.

Sec. 802 Defines "domestic terrorism" to include any act that is "dangerous to human life," involves a violation of any state or federal law and is intended to influence government policy or coerce a civilian population.  The ACLU fears protesters will be targeted under this section.

Sec. 901 Permits the head of the the intelligence community to set "requirements and priorities" for domestic spying, which could put the CIA back in the business of monitoring Americans' lawful activities.

Title III - International Money Laundering Abatement and Anti-Terrorist Financing

Under section 303, all of Title III, which obligates banks and other financial institutions to furnish a great deal of customer information to the government, is now permanent.  Congress could have passed a joint resolution before the beginning of fiscal year 2005 (which started in October 2004) to sunset the title, but did not do so, and instead repealed that special review provision instead.  Title III also imposes strict and expensive new identity verification requirements on financial institutions.  See www.aclu.org/patriot for the full text of Title III.

Relevant Publications: