Private Records in the United States
Patriot Act Provisions of the Patriot Act Private Records
Introduction to Private Records
The Patriot Act has two sections-section 215 and section 505-that make it easier for the government to obtain a person’s medical, library, financial, student, or mental health records. Law enforcement officials contend that in tracking shadowy figures and their contacts, they benefit from a greater amount of information. Medical records, for example, may be especially useful in identifying individuals who use different identities and aliases. But civil liberties advocates in Congress and elsewhere argue that obtaining such records opens the door to abusing the privacy of law-abiding citizens.
Section 215 attracted much attention among civil liberties advocates because it modifies the rules on record searches if the government says the searches are related in any way to fighting terrorism. Before the Patriot Act, a government investigator had to go to a federal judge and seek a warrant to obtain such records. The investigator had to convince a judge there was probable cause that a crime had been committed. Under the Patriot Act, however, an official can simply go to the FISA Court (the court created by the Foreign Intelligence Surveillance Act) and say that the search involves protecting the country against terrorism. There is no need to present evidence or to make a case for probable cause.
In addition, such searches are conducted secretly-that is, without the subject of the search being made aware that his or her records were obtained by government officials. Before the Patriot Act, any search warrants from a court to combat crime would require notifying the person who is the subject of the search. Even when there was an allegation that terrorism was involved and the FISA Court was used, the government would have had to make a showing that the subject was linked to foreign intelligence. To ensure that the searches were secret, the holders of the records being searched were prohibited from revealing that a search was conducted under the original Patriot Act. Under the revised Patriot Act that passed Congress in March 2006, this provision was altered slightly. Recipients of subpoenas for record searches would have the right to consult with a lawyer to challenge the request in court.
Section 215 was one of two sunset provisions in the Patriot Act that were not made permanent. Instead, it was extended for four years but it was amended so that subpoena recipients could challenge their subpoena in court.
Another section of the Patriot Act, section 505, gives the government an even more powerful tool to obtain records that most people think are private. For example, most people think that their library and medical records are private, but because these records are actually held by third parties, the records do not belong to them and are not considered their private property. Section 505 authorizes the U.S. attorney general, as the head of the Justice Department, to issue “national security letters,” which function like subpoenas, only they do not require a judge’s approval or a showing of probable cause. These letters may be used to force people who hold records about citizens, such as librarians and physicians, to turn the records over to the Justice Department. Unlike section 215, even a rubber-stamp court order is not required to issue one of these national security letters.
Under the original Patriot Act, once a national security letter was issued, the holder of the record was gagged and could not divulge that the record was turned over to the government. The person whose records were seized would never know that the search took place unless the government eventually prosecuted that person. Moreover, the government can obtain private records even of persons who are not themselves suspected of a crime but are simply associated with someone who is under suspicion. And the attorney general can delegate the authority to issue national security letters to other officials, such as the head of a Federal Bureau of Investigation (FBI) field office. Under the revised Patriot Act of 2006, the recipient of a national security letter can challenge the nondisclosure requirement but only one year after receiving the national security letter. Recipients are not required to disclose the names of any attorneys they consulted, but they are required to tell the FBI if they consulted anyone other than legal counsel.
Under the revised Patriot Act, public, academic, and research libraries are exempted from section 505 and may not be subject to national security letters. Libraries may, however, be subject to warrants issued by the FISA Court.
In March 2006, when Congress renewed the Patriot Act, most accounts indicated that the FBI had issued about 30,000 national security letters annually since the law was originally enacted. The FBI used national security letters to obtain information about these citizens and residents from their banks and from companies that provided them with credit card, telephone, and Internet services. National security letters do not require a judge’s approval or a grand jury subpoena.
However, in March 2007 a report by the inspector general of the U.S. Justice Department revealed that the FBI had underreported the number of national security letters it had issued. The report also found that in many instances FBI agents had used such letters improperly and illegally. The inspector general found 48 violations of the law or of presidential directives during a two-year period from 2003 to 2005, based on an audit of only four of the FBI’s 56 field offices. FBI director Robert S. Mueller III conceded that the inspector general’s audit was accurate but said the underreporting and instances of illegal and improper use was a result of errors in judgment rather than criminal intent. He also blamed deficiencies in FBI databases and record-keeping. The inspector general’s 2007 report revised the number of national security letters that had been issued over a three-year period. According to the report, the actual number was 39,000 in 2003, 56,000 in 2004, and 47,000 in 2005. The report found that the FBI had underreported these numbers by 20 percent.” (1)
Resources
Notes and References
- Information about Private Records in the Encarta Online Encyclopedia
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