The FBI does not have to show a reasonable suspicion that the records are related to criminal activity, much less the requirement for “probable cause” that is listed in the Fourth Amendment to the Constitution. All the government needs to do is make the broad assertion that the request is related to an ongoing terrorism or foreign intelligence investigation. Judicial oversight of these new powers is essentially non- existent. The government must only certify to a Judge-?with no need for evidence or proof-?that such a search meets the statute’s broad criteria, and the Judge does not even have the authority to reject the application.
Surveillance orders can be based in part on a person’s First Amendment-guaranteed activities, such as the books they read, the Web sites they visit, or a letter to the editor they have written. A person or organization forced to turn over records is prohibited from disclosing the search to anyone. As a result of this gag order, the subjects of surveillance never even find out that their personal records have been examined by the government.
That undercuts an important check and balance on this power: the ability of individuals to challenge illegitimate searches. The Patriot Act also amends the Federal Rules of Criminal Procedure to allow the government to conduct searches without notifying the subjects, at least until long after the search has been executed. This means that the overspent can enter a house, apartment or office with a search warrant when the occupants are away, search through their property, take photographs, and in some cases even seize property-?and not tell them until later.
Under the Patriot Act, the FBI can secretly conduct a physical search or wiretap or gather cell phone and e-mail records of American citizens to obtain evidence of crime without proving probable cause. The Patriot Act allows for the indefinite detention of non-citizens. The attorney general can order detention based on a certification that he or she has “reasonable rounds to believe” a non-citizen endangers national security.