Patriot Act

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The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act, H.R. 3162, S. 1510, Public Law 107-56) is a US legislative law, enacted in response to the September 11, 2001 Terrorist Attacks. The bill passed 98-1 in the United States Senate, and 356-66 in the United States House of Representatives; Senator Russ Feingold cast the Senate's lone dissenting vote. President George W. Bush signed the bill into law on October 26, 2001. Assistant attorney general Viet D. Dinh, was the chief architect of the act.

Overview

This law provides for indefinite imprisonment without trial of non-U.S. citizens whom the Attorney General has determined to be a threat to national security. (At least two U.S. citizens, Yaser Hamdi and Jose Padilla, have also been designated as "enemy combatants" and imprisoned without trial). The government is not required to provide detainees with counsel, nor is it required to make any announcement or statement regarding the arrest. The law allows a wiretap to be issued against an individual instead of a specific telephone number. It permits law enforcement agencies to obtain a warrant and search a residence without immediately informing the occupants, if the Attorney General has determined this to be an issue of national security. The act also allows intelligence gathering at religious events. With a few exceptions, provisions of the act are due to expire on December 31, 2005.

There has been strong criticism of the act on the grounds that parts of it violate the Constitution and endanger civil liberties. The American Civil Liberties Union (ACLU) alleges that its search and detention provisions violate the Fourth Amendment. Some say that the act's secret warrants resemble the general warrants which were one reason the colonists fought the American Revolutionary War.

Critics also say the law was passed without serious review in a climate of fear, and that it represents a reactionary agenda that has little to do with the 9/11 attacks. They note that there were unsuccessful attempts to pass similar laws, such as the Methamphetamine Anti-Proliferation Act of 2000, long before 9/11. They also note that the law passed the Senate on October 11, 2001 and the House of Representatives on October 12, 2001, just one month after the 9/11 attacks, which is surprisingly rapid for a law of over 300 pages.

Supporters of the law argue that terrorist acts may result in the loss of thousands or millions of lives, so waiting until after the fact to hunt the perpetrators down would be a deadly mistake. They admit that the law may result in some rights abuses, but argue that the most basic civil right is the right to live without perpetual fear. They further argue that, unless the Supreme Court rules otherwise, the law is constitutional. However, since the Supreme Court does not seek out laws to countermand, the constitutionality of the Patriot Act must remain a question until someone brings the dispute before the court.

All of the candidates for the Democratic Party nomination for the U.S. presidential election, 2004 have criticized Attorney General John Ashcroft's use of the act. Among them, Ohio Congressman Dennis J. Kucinich voted against its passage in the House of Representatives.

Four states (Hawaii, Alaska, Maine and Vermont) and 331 cities (including New York City, Los Angeles, Dallas, Chicago, Eugene, Oregon, Philadelphia, Pennsylvania and Cambridge, Massachusetts) have passed resolutions condemning the USA PATRIOT Act for attacking civil liberties. Arcata, California is the first city to pass an ordinance that bars city employees (including police and librarians) from assisting or cooperating with any federal investigations under the USA PATRIOT Act that would violate civil liberties. The Bill of Rights Defense Committee is helping coordinate local efforts to pass resolutions. Pundits question the validity of these ordinances, noting that under the Constitution's supremacy clause, federal law overrides state and local laws.

The act is 342 pages long and amends over fifteen statutes. The following summarizes the new powers granted by the law:

  • Sec. 106: Allows the President of the United States to seize property belonging to foreign nationals connected with terrorism. If the seizure is based on classified evidence, then the judge reviewing the case cannot share that evidence with the defense attorneys.
  • Sec. 203: Allows information collected by the police or presented to a Federal grand jury to be shared with intelligence agencies. This information sharing is limited to evidence of terrorist activities. (Section 203(a)&(b) doesn't sunset/expire).
  • Sec. 206: Allows a wiretap to be granted against an individual, instead of a particular phone. Previously, for example, if a person had a cell phone, a home phone, and an office phone, the government had to obtain separate warrants on each.
  • Sec. 207: Increases the duration of a wiretap "permitted for non-U.S. persons who are agents of a foreign power."
  • Sec. 208: Increases (from seven to 11) the number of district court judges designated to hear applications for and grant orders approving electronic surveillance. (Section 208 doesn't sunset/expire).
  • Sec. 209: Permits the seizure of voice-mail messages under a warrant.
  • Sec. 213: Allows FBI agents to conduct a search of a business or a place without notifying the owner that the search has been conducted until later. The agents still need a warrant, and only a Federal district court judge can issue this type of warrant. Further, this type of warrant may only be issued if notifying the owner of the search would result in "adverse consequences." (Section 213 doesn't sunset/expire).
  • Sec. 216: "PEN/Trap Authority." Allows law-enforcement in ordinary criminal cases to get a warrant to track which websites a person visits and collect general information about the emails a person sends and receives. Law-enforcement doesn't have to prove the need; the judge only has to determine that law-enforcement has "certified" that this relates to an ongoing investigation. In other words, the judge cannot reject an application based on the merits. Furthermore, people not-named in the warrant can be subject to the warrant if law-enforcement "certifies" that the warrant was meant to apply to those unnamed people. (Section 216 doesn't sunset/expire).
  • Sec. 217: Allows the government to intercept the electronic communication of a computer trespasser, i.e., a hacker, without a court order in certain circumstances if the owner of the hacked computer consents.
  • Sec. 402: Triples the number of Border Patrol, Customs Service, and INS personnel stationed along the U.S. borders.
  • Sec. 411: Expands the definition of a terrorist for the purpose of the act. Summary of Sec. 411 of the USA PATRIOT Act.
    • Before passage, only members of the groups designated as terrorist organizations by the State Department could be denied entry to or deported from the United States
    • The law extends those actions to any foreigner who publicly endorses terrorist activity, belongs to a group that does, or provides support to a group that does.
    • The definition of "terrorist activity" is extended to include any foreigner who uses "dangerous devices" or raises money for a terrorist group, if that person knows or reasonably should have known that the group is engaged in terrorism
  • Sec. 412: Extends the power of the attorney general to detain aliens.
    • The attorney general can order the detention of any aliens if he certifies that he has "reasonable grounds to believe" involvement in terrorism or activity that poses a danger to national security. He does not need to explain his reasoning or show evidence.
    • Criminal or immigration violation charges have to be brought against such people within seven days, but they can be held indefinitely.
    • However, they retain their right to petition the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia, or any district court with jurisdiction to entertain a habeas corpus petition.
  • Sec. 416: Directs the Attorney General to implement fully and expand the foreign student monitoring program to include other approved educational institutions like air flight, language training, or vocational schools.
  • Sec. 503: Requires DNA samples of convicted terrorists to be collected and added to a DNA database of violent convicts.
  • Sec. 805(a)(2): Expands the definition of 'material support' to foreign terrorist organizations to include 'expert advice and assistance'. According to an article in Reason magazine, this section has been cited by Assistant US Attorney Christopher Morvillo and by Assistant US Attorney Robin Baker as grounds for prosecuting a US lawyer who defends a terror suspect. Critics suggest that this amounts to state intimidation of defence counsel, likely to undermine the constitutionally protected due process right to counsel.
  • Sec. 814: allows wiretaps for suspected violations of the Computer Fraud and Abuse Act, including anyone suspected of "exceeding the authority" of a computer used in interstate commerce, causing over $5000 worth of combined damage.

Opponents and supporters of the law make claims and counterclaims:

  • Critics state that the PEN/Trap Authority to track Internet usage in non-terrorism cases is an invasion of privacy, and that judges should be able to reject an application for such a warrant on the merits. Judges shouldn't be forced to rubber-stamp applications for warrants to track whom a person emails and which websites the person visits. Critics would further state that the websites a person visits have a more tenuous link to the activities a person does. An example would be a person hears about a book called the Anarchist Cookbook and searches the web for it. This is markedly different than a person talking on the phone with other people about how to obtain the materials needed to make something nefarious.
  • Supporters reply that law-enforcement has long had analogous authority to get a list of phone numbers a person has called merely by claiming that it relates to an ongoing investigation, and for law-enforcement to be able to track which websites a person visits and whom a person emails or receives email from is modernization.
  • Critics state that the law expands the powers under the Foreign Intelligence Surveillance Act (FISA) to spy on Americans or foreign persons in the US (and those who communicate with them), and that it expands the authority of the Foreign Intelligence Surveillance Act, from the situations where the suspicion that the person is the agent of a foreign government is "the" purpose of the surveillance to any time that this is "a significant purpose" of the surveillance.
  • Supporters reply that FISA surveillance under the new law is permitted only for non-U.S. persons. While a FISA wiretap may pick up the conversation of an American citizen when he is talking to a foreigner, FISA still cannot be specifically be used to "spy" on individual American citizens, and it is not wrong to have a higher standard of rights for American citizens as opposed to guests of the country. Finally, agents of Al-Qaeda are not "agents of a foreign government," and that FISA needed to be amended in a time where stateless terrorist conspiracies can murder thousands of people wholesale.
  • Critics state that the law allows increased information sharing between domestic law enforcement and intelligence, repealing some of the barriers put up in the 1970s after the discovery that the FBI and CIA had been conducting joint investigations on over half a million Americans during the McCarthy era and afterwards, including Martin Luther King Jr. It allows wiretap results and grand jury information and other information collected in a criminal case to be disclosed to the intelligence agencies when the information constitutes foreign intelligence information, a broad new category created by this law.
  • Supporters reply that the failure of inter-agency information sharing has led to disasters in recent decades, including the failure to locate known terrorists in the past and to shut down alien smuggling and underground slavery rings.
  • Supporters say that the Patriot Act and the is being used with increased effectiveness against common criminals, especially drug traffickers, scam artists, and sex offenders. Increased authority to wiretap and observe suspects is enabling police to gather more detailed information that can be used against criminals after arrest.

The USA PATRIOT Act is not why the American citizens Jose Padilla and Yaser Kemal are being held; they are being held as enemy combatants, a term from the World War II era. The U.S. government is relying on a 1942 Supreme Court decision, Ex parte Quirin, to hold them indefinitely, without being able to meet with attorneys, friends, or family.

A government report has found that secret searches in the U.S. are up 85% since 2001.

Domestic vs foreign law enforcement and surveillance

Domestic Law Enforcement Foreign Intelligence Surveillance
1. Intercept Orders.

Title III (named after the relevant section of the original legislation, the Omnibus Crime Control and Safe Streets Act of 1968) surveillance is a traditional wiretap that allows the police to bug rooms, listen to telephone conversations, or get content of electronic communications in real time.

  • Obtained after law enforcement makes a showing to a court that there is "probable cause" to believe that the target of the surveillance committed one of a special list of severe crimes.
  • Law enforcement must report back to the court what it discovers.
  • Up to 30 days; must go back to court for 30-day extensions

(Courts do not treat unopened e-mail at ISPs as real-time communications.)

1. FISA Intercept Orders.
  • Secret Court. No public information about what surveillance requested or what surveillance actually occurs, except for a raw annual report of number of requests made and number granted (the secret court has only refused one request).
  • Previous standard was certification by Attorney General that "the purpose" of an order is a suspicion that the target is a foreign power or an agent of a foreign power.
  • Attorney General is not required to report to the court what it does.
  • Up to 90 days, or 1 year (if foreign power)
2. Pen/Trap.

Pen/Trap surveillance was based upon the physical wiring of the telephone system. It allowed law enforcement to obtain the telephone numbers of all calls made to or from a specific phone.

  • Allowed upon a "certification" to the court that the information is relevant to an ongoing criminal investigation.
  • Court must grant if proper application made.
  • Does not require that the target be a suspect in that investigation and law enforcement is not required to report back to the court.

Prior to PATRIOT there had been debate about how this authority is to be applied in the Internet context.

2. FISA Pen/Trap.

Previous FISA pen/trap law required not only showing of relevance but also showing that the communications device had been used to contact an "agent of a foreign power."

While this exceeds the showing under the ordinary pen/trap statute, such a showing had the function of protecting U.S. persons against FISA pen/trap surveillance.

3. Physical search warrants

Judicial finding of probable cause of criminality; return on warrant.

Previously, agents were required at the time of the search or soon thereafter to notify person whose premises were searched that search occurred, usually by leaving copy of warrant.

PATRIOT makes it easier to obtain surreptitious or "sneak-and-peek" warrants under which notice can be delayed.

3. FISA Physical search warrants

See FISA 50 USC §1822. PATRIOT extends duration of physical searches.

Under previous FISA, Attorney General (without court order) could authorize physical searches for up to one year of premises used exclusively by a foreign power if unlikely that U.S. person will be searched; minimization required. A.G. could authorize such searches up to 45 days after judicial finding of probable cause that U.S. target is or is an agent of a foreign power; minimization required, and investigation may not be based solely on First Amendment-protected activities.

4. Subpoenas for stored information.

Many statutes authorize subpoenas; grand juries may issue subpoenas as well. EFF's main concern here has been for stored electronic information, including e-mail communications and subscriber or transactional records held by ISPs. Subpoenas in this area are governed by the Electronic Communications Privacy Act (ECPA).

4. FISA subpoenas

Previously, FISA authorized collection of business records in very limited situations, mainly records relating to common carriers, vehicles or travel, and only via court order.

PATRIOT permits any "tangible things," including business records, to be obtained via a subpoena.

Public opinion

According to a September 9, 2003 CNN/USA Today/Gallup Poll, 75% of Americans are not worried about the USA PATRIOT Act violating their civil rights.[1] Just 22% say the legislation goes "too far," while about the same number, 21%, say "not far enough." A plurality, 48%, says the Act is "about right."

According to recent polls, 52% of Americans report being concerned that their civil liberties are being infringed by the Bush administration's war on terrorism. [2]

Bills to limit the USA PATRIOT Act

US Senate

On July 31, 2003, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR), introduced the "Protecting the Rights of Individuals Act" (S. 1552) [3]. This bill would revise several provisions of the USA PATRIOT Act to increase judicial review. For example, instead of PEN/Trap warrants to track Internet usage being based on the claims of law-enforcement, they would be based on "specific and articulable facts that reasonably indicate that a crime has been, is being, or will be committed, and that information likely to be obtained by such installation and use is relevant to the investigation of that crime." However, the Protecting the Rights of Individuals Act doesn't address the portion of Sec. 216 of the USA PATRIOT Act which allows unnamed-persons to be subject to a PEN/Trap warrant based on law-enforcement certifying that those individuals should have been named.

US House of Representatives

On September 24, 2003, Congressman and Democratic Presidential Candidate Dennis Kucinich (D-OH), Co-Chair of the Progressive Caucus, introduced legislation into the US House of Representatives to repeal more than ten sections of the Act. The bill, titled the "Benjamin Franklin True Patriot Act", looks to review certain sections of the USA PATRIOT Act, including those that authorize sneak and peek searches, warrantless library, medical, and financial record searches, and the detention and deportation of non-citizens without meaningful judicial review. Beyond the USA PATRIOT Act, the bill cements the fundamental right of Attorney/Client Privilege and restores transparency in the Department of Justice and Department of Homeland Security by revoking FOIA secrecy orders, along with other important provisions.

Bernie Sanders (I-VT) with Reps. Jerrold Nadler (D-NY), John Conyers Jr. (D-Mich.), C. L. Otter (R-Idaho), and Ron Paul (R-Texas) proposed an amendment to the Commerce, Justice, State Appropriations Bill of 2005 which would cut off funding to the Department of Justice for searches conducted under Section 215. The amendment failed to pass the House with a tie vote, 210-210. Although the original vote came down in favor of the amendment, the vote was held open and several House members were persuaded to change their votes. [4]

Alleged abuses under the PATRIOT Act

  • In Las Vegas, police used a FISA warrant to monitor the activities of a strip club owner.
  • The FBI ordered all journalists that have ever written about computer hacker, Adrian Lamo, to turn over their information under the auspices of the Patriot Act. [5]
  • Beyond the above examples, in September 2003, the New York Times reported that a study by Congress showed hundreds of cases where the Patriot Act was used to investigate non-terrorist crimes. [6]
  • In April, 2004, a Muslim Idaho man went on trial on charges of supporting terrorism by maintaining some web sites (among many he assisted) that supported violent activities. [7] This type of "guilt by association" was resurrected by the 1996 "anti-terrorism" act signed by President Clinton, but was further expanded under the Patriot Act.
  • In May 2004, the FBI cordoned off the entire block of a University of Buffalo associate art professor's house, impounding his computers, manuscripts, books, equipment for further analysis and The Buffalo Health Department temporarily condemned the house as a health risk after suspicious vials and bacterial cultures were discovered at his home. The professor, whose art involves the use of biology equipment as part of a project educating the public about the politics of biotechnology was charged with violations under the Section 175 of the US Biological Weapons Anti-Terrorism Act which was expanded by the USA Patriot Act. [8] [9]
  • The ACLU was prevented from releasing the text of its lawsuit challenging aspects of the Patriot Act because the government claimed it would violate secrecy provisions of the act. [10]
  • The maintainer of a TV-show fan website was charged with copyright infringement after the MPAA directed the FBI to obtain records from the site's Internet service provider about the site under the USA Patriot Act [11] [12]

Sunset information

Sunset Provisions

Under PATRIOT §224, several of the surveillance portions of PATRIOT will expire on December 31, 2005.

A. The provisions that expire include:

  • §201. Authority To Intercept Wire, Oral, And Electronic Communications Relating To Terrorism.
  • §202. Authority To Intercept Wire, Oral, And Electronic Communications Relating To Computer Fraud And Abuse Offenses.
  • §203(b), (d). Authority To Share Criminal Investigative Information.
  • §206. Roving Surveillance Authority Under The Foreign Intelligence Surveillance Act Of 1978.
  • §207. Duration Of FISA Surveillance Of Non-United States Persons Who Are Agents Of A Foreign Power.
  • §209. Seizure Of Voice-Mail Messages Pursuant To Warrants.
  • §212. Emergency Disclosure Of Electronic Communications To Protect Life And Limb.
  • §214. Pen Register And Trap And Trace Authority Under FISA.
  • §215. Access To Records And Other Items Under FISA.
  • §217. Interception Of Computer Trespasser Communications.
  • §218. Foreign Intelligence Information.
  • §220. Nationwide Service Of Search Warrants For Electronic Evidence.
  • §223. Civil Liability For Certain Unauthorized Disclosures.

B. The following provisions do not expire:

  • §203(a),(c). Authority To Share Criminal Investigative Information.
  • §208. Designation Of Judges.
  • §210. Scope Of Subpoenas For Records Of Electronic Communications.
  • §211. Clarification Of Scope [privacy provisions of Cable Act overridden for communication services offered by cable providers (but not for records relating to cable viewing.)]
  • §213. Authority For Delaying Notice Of The Execution Of A Warrant--"Sneak and Peek"
  • §216. Modification Of Authorities Relating To Use Of Pen Registers And Trap And Trace Devices.
  • §219. Single-Jurisdiction Search Warrants For Terrorism.
  • §222. Assistance To Law Enforcement Agencies.
  • §225. Immunity For Compliance With Fisa Wiretap. Can continue all investigations active at the time of expiration.

See also

Historical similarities to other laws

Governmental

Other

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