BY Shulamit Shvartsman for Lawyers.comsm
Former President George W. Bush signed the USA PATRIOT ACT into law following 9/11. USA PATRIOT ACT stands for United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.
The Act allows law enforcement agencies to search telephone, e-mail, medical, financial and other records more easily. It also removes barriers to make foreign intelligence gathering easier. Controversially, the Patriot Act also extends the powers of law enforcement by expanding the definition of terrorism to include domestic terrorism.
Eight years after being enacted, the law is still one of the most controversial on the books. Some believe it's necessary to deter terrorism, others argue it tramples on civil liberties.
Expiration of Three Key Provisions
Three key provisions of the Patriot Act are due to expire at the end of 2009. Several civil rights groups have encouraged Obama to let them expire.
When running for president, Obama said he would take a close look at the law with his expertise in constitutional law. He declared that legal institutions must be updated to deal with the threat of terrorism. But he also said that the updates must preserve the rule of law and accountability.
Nonetheless, in a recent statement Obama announced that he has chosen to extend the expiring provisions. Justice Department officials said in a letter to lawmakers that the administration supports extending the three expiring provisions. However, they are willing to consider additional privacy protections if they don't make the law less effective.
The Key Provisions
The three provisions gaining this attention are:
Business Records provision - grants warrants for "business records" without having to notify the suspect. Business records include any record ranging from banking to library to medical. The government must only say that the records are relevant to a terrorism investigation. From 2004 to 2007, the business records provision was used 220 times. It was most often requested in combination with requests for phone records
Lone Wolf provision - allows warrants for electronic monitoring of someone even without showing the person is an agent of a foreign power or a suspected terrorist. While it hasn't been used yet, the administration says it should still be available for future investigations
Roving Wiretaps provision - designed to allow investigators to quickly monitor the communications of suspects who change their cell phone without investigators having to go back to court for a new court authorization. That provision has been used an average of 22 times a year
The American Civil Liberties Union (ACLU) opposes renewing all three provisions, especially the lone wolf provision. Michelle Richardson of the ACLU called the administration's position "a mixed bag," and said that the group hopes the next version of the Patriot Act will have important safeguards. The ACLU believe that the provisions are written too broadly and "have already proven themselves to be problematic in the hands of law enforcement. The privacy rights of all Americans will continue to be at risk if we continue to let these statues remain as they are1."
The ACLU has urged Congress to use this opportunity to revisit the problematic parts of the law. It remains to be seen whether President Obama will reform these provisions in a way that better protects civil liberties.
Ben Conery, Obama seeks Patriot Act extensions, The Washington Times, Sept. 16, 2009, available at http://www.washingtontimes.com/news/2009/sep/16/obama-seeks-patriot-act-extensions/, accessed Sept. 17, 2009.
Questions for Your Attorney
- What can I do if the USA Patriot Act is used as the basis for accessing my business records, but I truly believe that the request is not proper?
- If information is sought under a USA Patriot Act provision, particularly the more controversial provisions, is there any limit on how the information can be used, once obtained by government officials? For example, could business records be shared with the Internal Revenue Service?
- If the USA Patriot Act is misused by a government representative or agency, can the government be sued if harm results?