The Patriot Act and Electronic Communications

Electronic communications aren't nearly as private as they were pre-Patriot Act.

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When former government contractor Edward Snowden leaked a trove of top-secret spy agency documents, many of us learned for the first time that the government is snooping into our electronic communications. The U.S. government engaged in this covert activity under the aegis of a post-9/11 law called the Patriot Act. This article discusses the Patriot Act as it pertains to government surveillance of email, social media, and other electronic data.

For information about the Patriot Act and library records, see What is the Patriot Act and How Can it Affect a Criminal Case?

How the Patriot Act Works

Congress passed the Patriot Act within a month after the 9/11 attacks in New York, Washington, D.C., and Pennsylvania. The Act’s stated purpose is to enhance the ability of federal, state, and local law enforcement agencies to identify, investigate, and prevent terrorism. Among its many provisions, the Patriot Act provides for surveillance and searches by U.S. intelligence agencies, ostensibly to prevent terrorist activity.

One of the Patriot Act’s most controversial provisions is the broad scope of government surveillance of U.S. citizens allowed under it, and the ease with which intelligence agencies may conduct that surveillance.

Seizing data

Although U.S. law previously allowed intelligence agencies to conduct searches of data, the Patriot Act greatly expanded the type of personal information the government could search, and made it easier for the government to gain access to personal data.

  • Broader scope. The Act enlarged the definition of the information it could search to include “any tangible thing” relevant to an investigation to prevent terrorism or spying. (50 U.S.C. § 1861.) “Any tangible thing includes electronic data, according to the Act.
  • Easier to seize. The Act lowered the burden the government must meet to justify seeking the personal data of an individual. Prior to passage of the Act, the government had to show that the data sought was relevant to an investigation of a person thought to be an “agent of a foreign power” (in other words, a spy). The Patriot Act eliminates this “particularized” justification and allows the government to obtain data by simply showing that the data is relevant to an “authorized investigation.”

Who authorizes the investigation, you may ask. The very intelligence agency seeking to obtain data relevant to it. To obtain permission to conduct such surveillance, the intelligence agency makes a secret request to the special court that is set up under the Federal Intelligence Surveillance Act (“FISA”). Essentially, the government says to the FISA court, we need to see this data because we are doing an authorized investigation.

The FISA court rarely turns down such requests (the FISA court president admitted in 2013 that the court approves 99 percent of the applications it receives). The FISA court’s decisions are also kept secret. FISA is a 1978 law that deals with spying, but it has been used under the Patriot Act to conduct surveillance.

“Metadata”

After Snowden leaked the secret surveillance documents to news outlets, government officials stated that the widespread data monitoring involved only “metadata,” which they described as the email addresses, telephone numbers, dates, and durations of communications. These officials said that the government was not monitoring thecontent of the communications in the blanket surveillance.

“Gag” clause

The Patriot Act prohibits any entity that receives a government order to make data available from revealing to anyone that it has received the order. This means that an ISP, telephone company, or other service provider that receives such an order cannot inform its customers that their data is being perused by the FBI, the NSA, or another intelligence or law enforcement agency.

Lawsuit by Microsoft and Google

News of the blanket surveillance caused a public outcry from social media users, privacy activists, and people who simply didn’t want their Google searches eyeballed by a federal agent. This controversy “inspired” Microsoft and Google to file a lawsuit in June 2013, asking the FISA court to allow them to release to their users information about government requests for data that they receive, including requests for user content as well as metadata. The companies sought to release the information in order to address user concerns that the companies were giving the government “open-door” access to their communications and other data. The government has objected to the breadth of the request and has asked the court for more time to respond. In September 2013, Yahoo filed a lawsuit, as well, making its own motion to the FISA court to inform its users of the number of data requests it receives from the government. The court’s response to this motion is also pending. Watch this site for updates on this litigation.

How Big is Big Brother?

The Microsoft, Google, and Yahoo litigation may provide further illumination of the parameters of the government’s surveillance of our electronic data. One thing we do know right now: surveillance is happening and will continue. Check this site for developments.

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