Title II of the Patriot Act

Supporters of the Patriot Act claim that these provisions are necessary in fighting the War on Terrorism, while its detractors argue that many of the sections of Title II infringe upon Constitutionally protected individual and civil rights.

The sections of Title II amend the Foreign Intelligence Surveillance Act of 1978 and its provisions in 18 U.S.C., dealing with "Crimes and Criminal Procedure".

It also sets out procedures and limitations for individuals who feel their rights have been violated to seek redress, including against the United States government.

However, it also includes a section that deals with trade sanctions against countries whose government supports terrorism, which is not directly related to surveillance issues.

Title II amended the U.S. Code to allow a magistrate judge to issue a warrant outside of their district for any orders that relate to terrorism (section 219).

Section 220 of the title also gave a Federal court judge the power to issue nationwide service of search warrants for electronic surveillance.

Under FISA, any agency may require a common carrier, landlord, custodian, or other person provide them with all information, facilities, or technical assistance necessary to accomplish ongoing electronic surveillance.

The ABA passed resolutions that asked the U.S. government "to conduct a thorough review of the implementation of the powers granted to the Executive Branch under the [USA PATRIOT] Act before considering legislation that would extend or further expand such powers ...." and "to conduct regular and timely oversight including public hearings ... to ensure that government investigations undertaken pursuant to the Foreign Intelligence Surveillance Act ... do not violate the First, Fourth, and Fifth Amendments of the Constitution ...." They also set up a website, Patriot Debates to discuss issues in relation to the USA PATRIOT Act.

Kate Martin, the director of the Center for National Security Studies, argued that section 203 and 905 should be modified as she maintains the Act fails to discriminate between information gathered between terrorist and non-terrorist investigations.

Dempsey believes that the section lacks two important safeguards that are present in the corresponding legislation for criminal investigations: 1) that agents actually ascertain the location of the suspect before turning on their recording devices, and 2) that "some additional changes to FISA adopted outside of the normal process in the Intelligence Authorization Act a few months after the PATRIOT Act had the probably unintended effect of seeming to authorize "John Doe" roving taps – that is, FISA orders that identify neither the target nor the location of the interception.".

[8] However, Paul Rosenzweig disagreed with Dempsey's premise that "relaxation of the particularity requirement is constitutionally suspect" and believed that it colored his argument that section 206 should be modified.

Dempsey also argued that section 209, which deals with the seizure of voicemails through the use of a normal search warrant, unnecessarily overlooked the importance of notice under the Fourth Amendment and under a Title III wiretap.

Dempsey suggests several modifications to implement checks and balances into the section: make after-the-act judicial review mandatory, with the suppression of evidence which is not deemed to be properly justified; the mandatory disclosure to the person whose privacy has been invaded that their information has been provided to the government; and to "make it illegal for a government official to intentionally or recklessly mislead a service provider as to the existence of an emergency".

He believes that Dempsey's proposal to require after-the-act judicial review for exigent circumstances has no parallel in the Fourth Amendment; that allowing recipients of orders to challenge orders within the recipients own district would not follow "the traditional rule that any challenge (itself an extremely rare event) must be filed in the issuing district"; and that disclosure to the person whose electronic voicemail has been seized also has no such parallel in the Fourth Amendment, as while notice must be given to a home owner whose house is being searched this is not done to allow a challenge to the order but rather shows them that due legal process is being followed and that the search is not being conducted by a rogue agent – Kerr believes that "current law appears to satisfy this policy concern by providing notice to the ISP".

[10] Heather Mac Donald argued that section 213, which provides for the so-called "sneak and peek" provisions of the Patriot Act, is necessary because the temporary delay in notification of a search order stops terrorists from tipping off their counterparts that they are being investigated.

She claims that the section allows the government to conduct secret searches without notification from such organizations as the ACLU and the Century Foundation are wrong, and listed several arguments that she believed are easily discredited.

[11] James X. Dempsey countered that section 213 was a "perfect example of a good idea gone too far" and argued that secrecy was already dealt when FISA was amended in 1994 to allow the government to carry out secret searches.

Dempsey believes that the section confuses the law and was hastily cobbled together – his primary example is the reference to the definition of "adverse result", which he argues was unrelated with regards to the Patriot Act's purposes.

He also wonders why if sneak and peak orders are a "time-honored tool" used by courts for decades, then why it was necessary for the Justice Department to push to make section 213 applicable in all cases that such a measure is used.

He says that the FISC is not meant to apply searching judicial review of surveillance orders as the role of the judiciary is to make sure the executive branch is not abusing its powers and "by requiring the FBI to make solemn representations to the court, and mandating that the Attorney General report semi-annually on this provision's implementation, Section 215 provides suitable metrics for oversight and, if necessary, reform".

On section 214, McCarthy believes that the pre-Patriot Act version of FISA, which required government agencies to "certify that the monitored communications would likely be those either of an international terrorist or spy involved in a violation of U.S. criminal law, or of an agent of a foreign power involved in terrorism or espionage" was "an unnecessary and imprudently high hurdle" as pen registers and wiretaps do not violate the Fourth Amendment.

[16] David D. Cole argued that the changes to the law were unnecessary, and accused the proponents of the USA PATRIOT Act of "[being] equally guilty of propagating competing myths in this debate, nowhere more so than with respect to Section 218 and the "wall."

He agrees that the wall was not required by FISA, and maintains that section 218 was not sufficient to reduce barriers between information sharing amongst agencies – this, he says, was and remains a bureaucratic issue and not a statutory one.

In McCarthy's mind, Cole's objection to FISA is that he believes, incorrectly, that under the Fourth Amendment searches are "inappropriate absent probable cause of a crime".

Without that clarification of law, the disastrous primary purpose doctrine would be undisturbed, the unnecessary wall would still be in place, dots would remain unconnected, prosecutions like al-Arian would not have occurred, and the United States would be at considerably greater risk.

They criticize: EPIC also singled out Section 205, which allows the director of the FBI to employ translators, and section 208, which increases the number of Federal judges that can review surveillance orders from seven to eleven as "commendable in their efforts to aid the government in preventing terrorist acts while maintaining a system checking intrusion onto citizens' civil liberties".

"There are significant flaws in the Patriot Act, flaws that threaten your fundamental freedoms by giving the government the power to access to your medical records, tax records, information about the books you buy or borrow without probable cause, and the power to break into your home and conduct secret searches without telling you for weeks, months, or indefinitely.

They have stated that "while containing some sections that seem appropriate—providing for victims of the September 11 attacks, increasing translation facilities and increasing forensic cybercrime capabilities—it seems clear that the vast majority of the sections included were not carefully studied by Congress, nor was sufficient time taken to debate it or to hear testimony from experts outside of law enforcement in the fields where it makes major changes" and that "[many provisions] are aimed at nonviolent, domestic crime... [and] although many of the provisions facially appear aimed at terrorism, the Government made no showing that the reasons they failed to detect the planning of the recent attacks or any other terrorist attacks were the civil liberties compromised with the passage of PATRIOT.

In a resolution passed on June 29, 2005 they stated that "Section 215 of the USA PATRIOT Act allows the government to secretly request and obtain library records for large numbers of individuals without any reason to believe they are involved in illegal activity".

One prominent critic of the ALA's stance was the Manhattan Institute's Heather Mac Donald, who stated in an article for the City Journal that "[t]he furor over section 215 is a case study in Patriot Act fear-mongering.