Congress Says Government Can Seize Your Personal & Business Records, and Then Gag Your Ability to Talk About It

The People's Blog for the Constitution (blog of the Bill of Rights Defense Committee) recently discussed the implications of the new reauthorization of the post-9/11 Patriot Act. This legislation has amounted to a direct assault on U.S. civil liberties, and Congress has been totally and abjectly complicit in reauthorizing these laws over and over again, since first proposed by the Bush Administration in 2002.

Four more years of the PATRIOT Act will worsen government secrecy

On May 26, 2011, Congress voted to reauthorize three provisions of the USA PATRIOT ACT that were set to expire. The most contentious of these provisions is Section 215, which allows the government to more easily gain access to various personal records without clear evidence that the individual in question poses a threat to national security. This provision also places a gag order on anyone whose records have been seized so they can’t talk about what happened.

If the thought of the government accessing your business or medical records, telephone calls, books, diaries, and even your genetic information (go to page 87) isn’t scary enough, the most frightening aspect of this provision is that we don’t know how the government actually interprets and applies it. In part, this is because the Justice Department has refused to reveal the government’s interpretation of Section 215 of the PATRIOT Act.

Prior to Congress’s vote on the reauthorization of the PATRIOT ACT, Senators Ron Wyden and Mark Udall proposed an amendment that would require the US Attorney General to publicly reveal the government’s official interpretation of the PATRIOT ACT. Wyden claims,

“[T]he government is relying on secret interpretations of what the law says without telling the public what those interpretations are… and the reliance on secret interpretations of the law is growing.”

Unfortunately, the proposed amendment failed and the law was reauthorized until 2015.
The government’s refusal to explain, much less meaningfully reform, this provision of the PATRIOT Act is hardly the first time that this piece of legislation has been used to infringe on the rights of people in the United States. The increasing use of national security letters (NSLs) to demand personal records without court approval has resulted in an estimated 6,400 intelligence violations. Some of these violations took the form of exigent letters, which do not exist anywhere in the law, but according to the Inspector General’s investigation, “contained inaccurate statements, circumvented the requirements of the Electronic Communications Privacy Act NSL statute, and violated Attorney General Guidelines and internal FBI policy.”

Despite widespread and well-documented abuses, Congress reauthorized the PATRIOT Act for another four years without any protections for civil liberties. Congress has failed to check and balance the Executive Branch on civil liberties issues, allowing executive secrecy to become entrenched—and this failure has implications far beyond surveillance.  With the Obama administration prosecuting more whistleblowers than all other administrations combined (including some who risked prosecution by exposing important facts about surveillance), Congress’s abandonment of its oversight responsibilities on the PATRIOT Act bodes poorly for the future.

The American Civil Liberties Union (ACLU) has already stated that it will ask the courts to disclose information that Congress wouldn’t. On May 31, the ACLU filed a  Freedom of Information Act (FOIA) request demanding that the government reveal its interpretation of Section 215. Keep checking this blog and the ACLU for updates on that case and other news about the PATRIOT Act and civil liberties.