FBI can now subpoena info on you w/o a judge and w/o your knowledge: True?

Great Debates
1

This article from Wired, linked from the merry anarchists and libertarians of Slashdot, claim the above. Basically, what is being said is that the FBI will be able to get information about anyone from ANY organization without having to ask a judge for permission, AND can put a gag order on the organization so you’d never know about it. Plus, since it’s part of a spending bill, these provisions don’t even need to be debated publicly.

True, as the first step towards a government that can investigate its citizens without accountability? Alarmist, as provisions that have been misinterpreted, as many claimed about the PATRIOT Act? Conservative/legal mavens: care to defend this if it is true?

2

The PATRIOT Act.

Banking institutions–section 311.

You can search the page for any terms you’re interested in.

3

They always could. Always. Maybe they were constrained from using the evidence in court, by those dastardly liberal activist judges. But they could always get want they wanted, pretty much.

Back in the Dark Days, I mocked a good friend who swore the FBI was tapping his phone, etc. “What with the Black Panthers, Weathermen, and bank robbers, the FBI has time to bother about you?” About fifteen years ago, he got his file by way of the Freedom of Info Act.

Guess who was full of shit?

4
5

As Shodan correctly points out, this is not true - judicial approval is required.

I have lost patience with the parade of Patriot Act threads, each of which start out with foaming-at-the-mouth inaccuracies ascribed to the Act and end with either the OP vanishing or refusing to believe the text of the article.

It’s fascinating.

  • Rick
6

You’re quite right.

There is little point in alarmist rants, about how we gave up our civil rights to the Authorities.

Old news. Yesterday’s papers.

7

Err fellas, this isn’t about the Patriot Act. This is about several provisions of Patriot Act II which were too controversial to be approved, but which were snuck in by way of an intelligence spending bill rider.

“A provision of an intelligence spending bill will expand the power of the FBI to subpoena business documents and transactions from a broader range of businesses – everything from libraries to travel agencies to eBay – without first seeking approval from a judge.”

8

elucidator:

Is it really so important to rise up against The Man that you are willing to sacrifice any attempt at basic accuracy?

If our civil rights are indeed eroded by the Act, then it shouldn’t be difficult to point to the specific provision that does so. The OP claims things that aren’t true. Rather than applauding the correction of the record, you offer up a post that seems to applaud the original inaccuracy.

Is making a political point that valuable? Is it really more important to push the agenda regardless of the actual facts?

  • Rick
9

Shodan: Is your quoted material from the PATRIOT Act? If so, that’s not what the linked articles are about at all.

Bricker: See above. Unless the provisions mentioned in the articles I linked to are lifted wholesale from the PATRIOT Act (which they may very well be), I’m asking about something different entirely (i.e. NOT the PATRIOT Act).

I apologize for any confusion my even mentioning the Act might have caused, but unless I’m reading the linked articles incorrectly, the stuff I’m asking about is NOT the PATRIOT Act.

10

Addendum/clarification: When I said the articles were not the PATRIOT Act, I didn’t mean they were completely unrelated. The Wired article discusses these provisions as expansions to the PATRIOT Act. In other words, even if the original Act did not do any of the nasty things its critics said it does, these expansions may very well allow for them, which is why I think the provisions deserve a separate look from the original Act. If nothing else, I think it’s interesting how the two linked sources present them…

11

From what I’ve read I think there is danger to liberty in the Patriot Act. However, I tried to read it and a large part of it is amendments or changes to a whole slew of other, existing laws. In order to sort out just the bare bones would take flow charts covering all four walls of a pretty good sized room. And that still wouldn’t tell how those other laws have been interpreted, if they have, so you wouldn’t really know the effect of the act.

My feeling that even a highly talented and experienced attorney with a staff to help would be hard put to straighten it out so that it could be understood.

And that’s my problem. I think the Congress passed it without a thorough analysis and the members don’t really know what they passed.

12

Here is the full text of the act.

And, as an example of what I’m talking about here is the text of the sections on intercepting various communications.

"SEC. 201. AUTHORITY TO INTERCEPT WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS RELATING TO TERRORISM.

Section 2516(1) of title 18, United States Code, is amended–
(1) by redesignating paragraph §, as so redesignated by section 434(2) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1274), as paragraph ®; and

(2) by inserting after paragraph §, as so redesignated by section 201(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208; 110 Stat. 3009-565), the following new paragraph:

`(q) any criminal violation of section 229 (relating to chemical weapons); or sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B of this title (relating to terrorism); or’.

SEC. 202. AUTHORITY TO INTERCEPT WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS RELATING TO COMPUTER FRAUD AND ABUSE OFFENSES.

Section 2516(1)© of title 18, United States Code, is amended by striking and section 1341 (relating to mail fraud),' and inserting section 1341 (relating to mail fraud), a felony violation of section 1030 (relating to computer fraud and abuse),’."

Andhere is the archive associated with the above lind. It says “sweeping changes” which is an editorial comment so I sort assume this site is against the act. But the irformation seems valid.

“The USA PATRIOT Act introduced sweeping changes to U.S. law, including amendments to:
[ul]
[li]Wiretap Statute (Title III): [/li][li]Electronic Communications Privacy Act [/li][li]Computer Fraud and Abuse Act [/li][li]Foreign Intelligence Surveillance Act [/li][li]Family Education Rights and Privacy Act [/li][li]Pen Register and Trap and Trace Statute [/li][li]Money Laundering Act [/li][li]Immigration and Nationality Act [/li][li]Money Laundering Control Act [/li][li]Bank Secrecy Act [/li][li]Right to Financial Privacy Act [/li][li]Fair Credit Reporting Act” [/li][/ul]

13

It’s true the Patriot Act introduced changes.

None of those changes involved permission for the FBI to subpoena without a neutral, detached magistrate first giving approval.

If you have specific complaints against the Act, let’s hear them. But I’ve read through the entire Act, and the only thing I found even faintly troubling was the new provision regarding when the subject of a search must be given notice of the search.

Leaper: fair enough – you weren’t talking about the Patriot Act.

However, a quick review of the thomas.loc.gov site fails to reveal to me any legislation which removes the judicial approval for search warrants for the FBI. As the person making the claim, it’s up to you to produce the evidence that this is so.

  • Rick
14

The first paragraph is sort of true by definition. A subpoena is a writ from a court ordering something or other. Such things as that a person appear in court; documents be brought to a court, etc. The question is, are the standards for, say, the FBI getting an individual’s private documents relaxed over those previously in place? I don’t know and it is difficult for someone who isn’t trained in such things to track down and answer by simply “reading the act.”

As to your second paragraph. It seems to me that John Ashcroft also doesn’t find the act “even faintly troubling.” I’ve noticed that you usually seem to side with increases in governmental power, so I hope you won’t be offended that I don’t find your reassurance very reassuring.

15

I’m not remotely offended, but my reassurance was not intended to rebut any inference in the first place. Nor does your argumentum ad ignorantiam work here. Merely because you, an “untrained person,” find it difficult to track down the answer to your question does not compel the acceptance of the argument that the answer to your question is “Yes, the standards are relaxed.”

Of all the people out there, trained and untrained, surely one can find the specific section of the law that is troubling, and then we can discuss it.

  • ick
16

Leaper: Yes, my quotes were from the Patriot Act, to which sleeping kindly supplied a link.

The article which you cited makes the following claim:

Note the emphasis. Therefore I posted a quote from the Patriot Act that argues against this allegation.

Adding to that is what David Simmons points out, that by definition you need to present to a judge in order to get a subpoena, which is a court document. Therefore, the title of this thread would seem to contradict itself.

Wired fails to supply a link to the bill which they contend does all these dreadful things. Based on a superficial examination of the linked article, I think they might be talking out their ass.

The next step would be for you to post a link, and a cut and paste of the relevant portions of the bill, that shows that the allegations in your OP are true, or might be true.

Or else we can conclude that Wired magazine, Slashdot, and the ACLU might not be the best source of information regarding legislation with which they think they disagree.

Regards,
Shodan

17

For what it’s worth, this is incorrect. As a private attorney I can and do issue subpoenas without prior court approval. Technically, I am acting as an officer of the court when I do so, but the point is that I typically don’t need a judge or magistrate to sign off on the subpoena in advance.

I also note that well before 9/11 there were laws in place making it illegal for a bank officer or attorney to disclose even the existence of certain types of subpoenas to the bank’s customer whose records were the subject of the subpoena.

How this relates to the Patriot Act or other legislation, I have no idea.

18

Of course my difficulty doesn’t compel the answer that the standards have been relaxed. My question was an honest one - Have the standards for getting a subpoena of records been relaxed?

And I really doubt that any inexperienced individual can trace through what is to us a maze of references to other laws that have been amended and the precedents relating to them and find a specific troubling section.

I think the thing is more of an angst that the mind set of the Attorney General and the Chief Executive is toward a permanent shift in power toward the executive at the expense of individual freedom. And there isn’t much evidence that the the Act will promote success in combatting their claimed real target of terrorist activity.

We have seen a rather massive violation of supposed US principles in the incarceration of Japanese-Americans in WWII. And the challange to that one was dismissed by the Supreme Court by a ruling that the action was proper because it was done in accord with an emergency Executive Order on national security. Over and done with without ever getting to the question of the merits of the Executive Order itself.

I think the danger to individual liberty is real and not just “left wing hand wringing.”

Thanks for the correction and I didn’t know that. Don’t you have to show at some point that your subpoena was justified and have a judge ratify it? And will you be in deep trouble if you issue such a writ without good justification that would have convinced a judge in advance?

19

Not if nobody objects to it. Usually the third party just produces the stuff without objection. If another party to the case objects, they can make an application to the Court before the return date of the subpoena. The subpoena’d party can make such an application, or refuse to comply and let you move to compel. Either way, the issue will end up before a judge who can then decide whether the subpeona was justified.

**

I imagine, although I’ve never tested the limits of my subpoena power. I always make sure that I have a solid reason to back me up.

20

You missed me that time. I’m not making any sort of big stink about the Patriot Act, largely because it merely formalizes and legalizes behavior that the FBI has indulged in at its own discretion. Your insinuation that my political leanings corrupt my ethical positions as regards honest debate and rhetoric is beneath me, as it ought to be beneath you.