A Breakdown of the JUSTICE Act

Document Date: January 6, 2011

Senator Russ Feingold and nine other senators introduced S. 1686, the JUSTICE Act in the 111th Congress, which reforms our surveillance laws, including the Patriot Act and the FISA Amendments Act of 2008, an even broader expansion of government power. The bill reins in the government’s spying powers by:

Protecting the privacy of records.

  • The JUSTICE Act amends the national security letter (NSL) authority so that the government can only access communications, financial and credit records when they have something to do with a terror suspect or spy. Under the original Patriot Act, the government can collect the records of innocent people whenever it deems them “relevant” to an investigation – without any oversight by an impartial court. The current standard is so low that independent audits found that approximately 50,000 are issued every year and many are issued against people two or three times removed from an actual suspect.
  • The JUSTICE Act amends section 215 of the Patriot Act, the so-called “library records provision”. As currently written, section 215 permits the government to get a secret warrant for any tangible thing, such as library or medical records, by showing only that the records are “relevant” to an investigation. The bill would require the government to show that the records relate to a suspected terrorist or spy.

Protecting the privacy of communications.

  • The JUSTICE Act amends last year’s FISA Amendments Act that allows the government to collect phone calls and emails coming into or going out of the United States even if an American is on one end and even if that person is not suspected of doing anything wrong. This bill limits that authority by requiring that the collection of phone calls and emails at least be targeted and not conducted in a dragnet fashion where any number of people can be swept up into government databases. The bill also makes sure that when Americans’ communications are collected by the government under this warrantless program, the phone calls and emails are listened to, used or distributed only if there is reason to believe they relate to terrorism.
  • The JUSTICE Act amends the Patriot Act’s “roving John Doe” authority. That authority permits wiretap orders even without identifying either the person or the place to be tapped. The JUSTICE Act would require the government to name either the person or the place.

Protecting the privacy of homes and businesses.

  • The Patriot Act made it easier for the government to secretly conduct searches without giving prior notice by authorizing “sneak and peek” searches whenever notice would jeopardize an investigation. The JUSTICE Act reins in this authority by removing this broad catch-all, but permits government officials to continue secret searches in emergency or urgent circumstances.

Protecting First Amendment rights.

  • The JUSTICE Act requires that gag orders that come with national security letters or section 215 orders meet traditional First Amendment standards. If a recipient of one of these requests wishes to speak out about the government’s actions, the burden will be on the government to convince a court that national security will jeopardized if the recipient is not gagged.

Targeting terror prosecutions on those who intend to help terrorists.

  • The JUSTICE Act will amend the material support statute – which criminalizes giving anything of value to a terrorist organization – so that people can only be prosecuted if they knew or intended the money or other support to further terrorist acts. It will prevent prosecution of people who work with or for charities that give humanitarian aid in good faith to war torn countries.

Holding companies responsible for conspiring with the government to break the law.

  • The JUSTICE Act will reverse last year’s congressional grant of immunity to telecommunications companies that unlawfully turned over Americans’ private communications to the government without a warrant compelling them do so. Consumers will be able to seek redress in the courts to prevent this from happening in the future.