NATIONALLY RECOGNIZED FEDERAL LAWYERS
Last Updated on: 2nd October 2023, 05:52 pm
How the USA Patriot Act Expanded Federal Subpoena Powers
The USA Patriot Act, passed in October 2001 after the 9/11 terrorist attacks, gave federal law enforcement and intelligence agencies expansive new powers to gather information in terrorism investigations. One of the most controversial changes was expanding the government’s ability to obtain records and documents through subpoenas.
Before the Patriot Act, federal agencies like the FBI faced limits on their subpoena powers. But the Patriot Act allowed the government to issue subpoenas without meeting traditional evidentiary standards. Now agents can access records more easily, even if the person under investigation isn’t suspected of a crime.
What’s a subpoena?
There are two main types of subpoenas:
- Grand jury subpoenas – issued on behalf of grand juries investigating potential crimes
- Administrative subpoenas – issued directly by government agencies
Administrative subpoenas allow agencies like the FBI to compel companies or organizations to hand over documents without court approval. Before the Patriot Act, they were limited in scope.
How did the Patriot Act expand subpoena powers?
The Patriot Act made it easier for federal agencies to issue administrative subpoenas in national security investigations. Here are some of the key changes:
- Allowed agencies to issue subpoenas without meeting traditional evidentiary standards, like showing the information was relevant or material to an investigation.
- Expanded the types of records accessible, including any tangible item (like books, papers, documents).
- Allowed subpoenas for records not just of suspected terrorists or spies, but anyone deemed relevant to an investigation.
- Imposed gag orders preventing recipients from disclosing they received a subpoena.
- Granted access to records held by third parties, like doctors, libraries, schools, and internet providers.
In other words, the government gained broad new powers to secretly obtain sensitive records on just about anyone, without judicial oversight.
Evolution of subpoena powers
National security subpoenas existed before 9/11, but were limited in scope:
- 1978 – Foreign Intelligence Surveillance Act allowed agencies to subpoena records of suspected foreign agents.
- 1986 – Right to Financial Privacy Act allowed subpoenas for financial records in foreign intelligence cases.
- 1996 – Anti-Terrorism and Effective Death Penalty Act expanded powers to terrorism investigations.
The Patriot Act took it much further by authorizing subpoenas more broadly in both foreign intelligence and domestic terrorism cases. Few explicit limits were placed on what records could be obtained.
Criticisms and concerns
Civil liberties groups warned the expanded subpoena powers threatened privacy rights and due process:
- Intrusive data collection on people not suspected of crimes.
- Circumventing Fourth Amendment probable cause requirements.
- Lack of notice to targets when records were seized.
- Potential for fishing expeditions and abuse.
However, supporters argued the powers were necessary to identify and monitor terror suspects in the digital age. And the government maintained proper procedural safeguards were in place.
Later reforms and changes
In response to criticism, Congress amended the Patriot Act in 2006 to add some new constraints and oversight on national security letters and subpoenas:
- Required higher internal approval to issue subpoenas.
- Mandated agencies adopt guidelines for use.
- Allowed recipients to challenge gag orders.
- Required agencies to report to Congress on use.
But the broad new subpoena powers remained largely intact. And in subsequent reauthorizations of the Patriot Act, Congress has continued renewing them.
However, the reforms did impose some additional accountability and transparency around how the powers were being used in practice.
There are still disagreements today around administrative subpoenas in national security cases:
- Civil liberties groups argue the Patriot Act went too far and the powers should be reined in.
- Government agencies maintain expanded subpoenas are vital investigative tools to identify terror threats.
- Some lawmakers have proposed requiring warrants for certain types of sensitive records, like email communications.
- Tech companies have resisted government efforts to obtain customer data through subpoenas.
The debate continues around balancing privacy rights and civil liberties with giving law enforcement the tools needed to protect national security.
The Patriot Act dramatically expanded the government’s ability to obtain a wide range of records through administrative subpoenas, with reduced judicial and evidentiary standards. Supporters saw it as necessary to enhance information gathering in terrorism investigations. But critics argued it infringed on privacy rights and due process.
Congress has reformed aspects of the subpoena powers over time, adding some new constraints and oversight. However, the broad scope of what records can be collected under the Patriot Act remains in place. Ongoing disagreements continue around how to balance security, privacy, and civil liberties.