Duke Law School

Civil Liberties Online

PART G: Reporting Requirements related to the Government's Use of its USA PATRIOT Act Powers

Surveillance Power: Expanding the Scope of the Government?s Surveillance Power

Freedom of Information Act (FOIA), 5 U.S.C. ? 552, requests are an important way through which the public gains information on governmental functioning. FOIA access post September 11 has been an area of litigation in the courts. The FOIA contains a law enforcement exception that allows an agency to withhold “records of information complied for law enforcement purposes, but only to the extent that the production of such law enforcement records of information could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. ?552(b)(7)(A).

Nonetheless, 50 U.S.C. ? 1807 mandates that the total number of surveillance warrants requested, granted, modified, and denied pursuant to FISA must be disclosed in April of each year. This applies only to electronic surveillance. The number of applications submitted and approved under EACH provision is only shared with designated Congressional oversight committees in classified form. There seems to be a trend toward expanding the category of classified information since 9/11 in the form of court’s giving substantial deference to the government’s assertion that national security concerns should justify invocation of the law enforcement exception. See Center for Nat’l Sec. Studies v. U.S. Dep’t. of Justice, 331 F.3d 918 (D.C.C. 2003), cert. denied, 124 S. Ct. 1041 (2004).

Several cases have shown that information about particular section 200 provisions have been most sought after in an effort to reveal the government’s true actions in accordance with the PATRIOT Act.  See ACLU of N. Cal. V. DOJ, 2005 U.S. Dist. LEXIS 3763 (N.D.C.A. 2005); ACLU v. United States DOJ, 321 F. Supp. 2d 24 (D.D.C. 2004) (upholding the non-disclosure of certain information about the government’s use of section 215); ACLU v. United States DOJ, 265 F. Supp. 2d 20 (D.D.C. 2003) (permitting government secrecy as to information about surveillance, particularly under section 215). The courts’ continued resistance to mandate full disclosure of all information pertaining to the PATRIOT Act can be defended on grounds of national security but disclosure of some of the information may be the appropriate mechanism for ensuring civil liberty protection for all citizens.  

Relevant Provision

  • Provides that information voluntarily provided by individuals and businesses to the department that concerned the security of "critical infrastructure" may be excluded from Freedom of Information Act (PL 89-487) requests. This information could not be used in any civil action if it was submitted to the government in "good faith." Homeland Security Act of 2002 Pub. L. No. 107- 296, 116 Stat. 2135 (2002). 

Cases