Thread: has america lost its luck?

Section 215 FAQ (10/24/2002)

What is Section 215?

* Section 215 allows the FBI to order any person or entity to turn over "any tangible things," so long as the FBI "specif[ies]" that the order is "for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities."
* Section 215 vastly expands the FBI's power to spy on ordinary people living in the United States, including United States citizens and permanent residents.
o The FBI need not show probable cause, nor even reasonable grounds to believe, that the person whose records it seeks is engaged in criminal activity.
o The FBI need not have any suspicion that the subject of the investigation is a foreign power or agent of a foreign power.
o The FBI can investigate United States persons based in part on their exercise of First Amendment rights, and it can investigate non-United States persons based solely on their exercise of First Amendment rights.
+ For example, the FBI could spy on a person because they don't like the books she reads, or because they don't like the web sites she visits. They could spy on her because she wrote a letter to the editor that criticized government policy.
o Those served with Section 215 orders are prohibited from disclosing the fact to anyone else. Those who are the subjects of the surveillance are never notified that their privacy has been compromised.
+ If the government had been keeping track of what books a person had been reading, or what web sites she had been visiting, the person would never know.

Is Section 215 Constitutional?

* Normally, the government cannot effect a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime. Section 215 violates the Fourth Amendment by allowing the government to effect Fourth Amendment searches without a warrant and without showing probable cause.
o The violation of the Fourth Amendment is made more egregious by the fact that Section 215 might be used to obtain information about the exercise of First Amendment rights. For example, the FBI could invoke Section 215 to require a library to produce records showing who had borrowed a particular book or to produce records showing who had visited a particular web site.
o Section 215 might also be used to obtain material that implicates privacy interests other than those protected by the First Amendment. For example, the FBI could use Section 215 to obtain medical records.
* The provision violates the First Amendment by prohibiting those served with Section 215 orders from disclosing that fact to others, even where there is no real need for secrecy.
* The provision violates the First Amendment by effectively authorizing the FBI to investigate U.S. persons, including American citizens, based in part on their exercise of First Amendment activity, and by authorizing the FBI to investigate non-U.S. persons based solely on their exercise of First Amendment activity.
* The provision violates the Fourth and Fifth Amendments by failing to require that those who are the subject of Section 215 orders be told that their privacy has been compromised.

Doesn't the government need these powers?

* The government already has the authority to prosecute anyone whom it has probable cause to believe has committed or is planning to commit a crime. It also has the authority to engage in surveillance of anyone whom it has probable cause to believe is a foreign power or spy - whether or not the person is suspected of any crime.
* Section 215 takes away a great deal of our liberty and privacy but isn't likely to get us any security in return.
o There's a real possibility that setting the FBI loose on the American public will have a profound chilling effect on public discourse. If people think that their conversations and their e-mails are their reading habits are being monitored, people will inevitably feel less comfortable saying what they think, especially if what they think is not what the government wants them to think.

Is the FBI abusing its powers?

* Attorney General Ashcroft has gone to great lengths to keep secret even the most basic information about the FBI's spying. For example, in answering questions posed by the House Judiciary Committee, he classified information that should not have been classified, including information that would have shown how often the FBI is spying on people based on their exercise of First Amendment rights.
* The little information that we do have suggests that the FBI is abusing its powers.
o For example, a survey conducted by the University of Illinois suggested that, by December 2001, the FBI had already approached 85 out of some 1500 libraries.
* The ACLU obtained some information about the FBI's use of Section 215 through a Freedom of Information Act lawsuit. More information about our FOIA request and related litigation can be found at /privacy/spying/15424prs20021024.html.

********************

I post without comment since my knowledge of the practical issues of the Patriot Act is based on the internet and not experience.

And anyway, Shek, Happy Birthday!

Sir,

Here's a post that is more specific than mine written by a poster with significant experience in the area:

Moral Authority?

Also, read the actual text of section 215 - it doesn't state that the FBI can order the hand over of information; instead, it states that

The Director of the Federal Bureau of Investigation
or a designee of the Director (whose rank shall be no lower than
Assistant Special Agent in Charge) may make an application for
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 or clandestine intelligence
activities, provided that such investigation of a United
States person is not conducted solely upon the basis of activities
protected by the first amendment to the Constitution.

***

Each application under this section—‘‘(1) shall be made to—
‘‘(A) a judge of the court established by section 103(a);
or
‘‘(B) a United States Magistrate Judge under chapter
43 of title 28, United States Code, who is publicly designated
by the Chief Justice of the United States to have
the power to hear applications and grant orders for the
production of tangible things under this section on behalf
of a judge of that court; and
‘‘(2) shall specify that the records concerned are sought
for an authorized investigation conducted in accordance with
subsection (a)(2) to obtain foreign intelligence information not
concerning a United States person or to protect against international
terrorism or clandestine intelligence activities.
‘‘(c)(1) Upon an application made pursuant to this section, the
judge shall enter an ex parte order as requested, or as modified,
approving the release of records if the judge finds that the application
meets the requirements of this section.

So, please do not be deceived by the erroneous website that you cite.

In general, the USA Patriot Act didn't break any new ground that I'm aware of - it just reapplied laws that were already in effect. For example, the ability to look at library records (through a court order) existed for child sexual offenses investigations if I'm not mistaken - this tool was expanded for use in national security (i.e. terrorism) cases. Notice that this ability still requires going before a judge (typically FISA) in order to obtain the warrant. This adheres completely with the 4th amendment. The act is now five years old - surely it would have been overturned in the courts if it didn't pass Constitutional muster.

Lastly, thanks for the birtday wishes. Tomorrow is a federal holiday in honor of my birthday (okay, not really, it is for Veteran's Day, but it does sound impressive, eh? )

I thought 11 Nov is the Veterans Day.

My brother was born on 11 Nov which is the Armistice Day and in US, I believe it is called the Veteran's Day.

Maybe, I could be wrong.

As far as Patriot Act is concerned, it really doesn't matter to me. All that matter is when we will get the Patriot Missiles!

Originally Posted by Ray

I thought 11 Nov is the Veterans Day.

My brother was born on 11 Nov which is the Armistice Day and in US, I believe it is called the Veteran's Day.

Maybe, I could be wrong.

As far as Patriot Act is concerned, it really doesn't matter to me. All that matter is when we will get the Patriot Missiles!

Sir,
You are correct that 11 Nov is Veteran's Day. However, since that is Saturday, tomorrow is a federal holiday so that federal employees get a work day (although all the ceremonies will still be on Saturday).

Originally Posted by shek

Out of curiosity, what specificially do you object to in the Patriot Act?

The law of unintended condequences. The patriot act was not needed, will never be repealed and will be used to abuse American citizens. No safeguard yet enacted in the modern era has stopped the US goverment from doign exactly as it wanted to do, this acts only makes it easier for them to get away with abuse.

Since when can an American citizen be deneid of his rights by a magistrate? magistrate judges are not judical, they are administrative.

Originally Posted by zraver

The law of unintended condequences. The patriot act was not needed, will never be repealed and will be used to abuse American citizens. No safeguard yet enacted in the modern era has stopped the US goverment from doign exactly as it wanted to do, this acts only makes it easier for them to get away with abuse.

Since when can an American citizen be deneid of his rights by a magistrate? magistrate judges are not judical, they are administrative.

Magistrate judges issue warrants as part of their standard duties. This is not denying a person's Constitutional right - it is exercising it by requiring that a warrant be issued. I am not sure how you can come to the exact opposite conclusion. In other words, the USA Patriot Act confirms this right that you claim it destroys.

If you doubt that a magistrate is authorized to order search warrants, then you can read the following citation from the FindLaw website. You can click on the link to access the cited footnotes from actual case law.

http://caselaw.lp.findlaw.com/data/c...nt04/02.html#2

Issuance by Neutral Magistrate .--In numerous cases, the Court has referred to the necessity that warrants be issued by a ''judicial officer'' or a ''magistrate.'' 89 ''The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.'' 90 These cases do not mean that only a judge or an official who is a lawyer may issue warrants, but they do stand for two tests of the validity of the power of the issuing party to so act. ''He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.'' 91 The first test cannot be met when the issuing party is himself engaged in law enforcement activities, 92 but the Court has not required that an issuing party have that independence of tenure and guarantee of salary which characterizes federal judges. 93 And in passing on the second test, the Court has been essentially pragmatic in assessing whether the issuing party possesses the capacity to determine probable cause. 94

Originally Posted by zraver

The law of unintended condequences. The patriot act was not needed, will never be repealed and will be used to abuse American citizens. No safeguard yet enacted in the modern era has stopped the US goverment from doign exactly as it wanted to do, this acts only makes it easier for them to get away with abuse.

Since when can an American citizen be deneid of his rights by a magistrate? magistrate judges are not judical, they are administrative.

I've come to this a bit late, so forgive me. However, I can tell you without hesitation that there is nothing in the PATRIOT Act that violates the constitution. Moreover, there really isn't any new law in the PATRIOT Act, cries from those who believe that it violates all kinds and types of our rights. Also, cries that it unleashes the goverment spies on US citizens are incorrect. My first suggestion is that this poster, or any other who believes the same, look up Title XVIII of the US Code. The provisions of the PATRIOT Act so many find distasteful are located there, and have been since at least 1983, when I first became a US Army Counterintelligence Agent.

There were, however, some very important reasons to enact the PATRIOT Act. As I already pointed out, it took many provisions of US law, all of which were long since tested and accepted principles of jurisprudence, and "put them in one house," which is never a bad idea. It also specified which courts had jurisdiction over cases involving domestic and international terrorism. This prevents courts without experience in such investigations from derailing or delaying said investigations while they "research the issue."

However, if zraver would like to offer specifics regarding his/her objection to the PATRIOT ACT, I'd be happy to debate the issue. So far, all you have really done is say the PATRIOT Act is bad. Nothing more than an unsubstantiated opinion. And we all know what opinions, especially those that are unsubstantiated, can be compared to.

Kevin McHugh

Edited to add: If you are going to make claims about the PATRIOT Act violating the Constitution, I'll expect you to be able to reference the portion of the Act that does so. I won't accept simple claims based on what you may have read on other web sites. It's amazing the number of people who have completely missed what the PATRIOT Act says and does. In other words, go to the original document and reference specifically the offending section.

I read it. There is a provision for "Protecting the Northern Border." No mention of the Southern Border.....LOL.