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| Other short titles | Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 |
|---|---|
| Long title | An Act to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes. |
| Acronyms (colloquial) | USA PATRIOT Act |
| Nicknames | Patriot Act |
| Enacted by | the 107th United States Congress |
| Effective | October 26, 2001 |
| Citations | |
| Public law | 107-56 |
| Statutes at Large | 115 Stat. 272 (2001) |
| Codification | |
| Acts amended | Electronic Communications Privacy Act Computer Fraud and Abuse Act Foreign Intelligence Surveillance Act Family Educational Rights and Privacy Act Money Laundering Control Act Bank Secrecy Act Right to Financial Privacy Act Fair Credit Reporting Act Immigration and Nationality Act of 1952 Victims of Crime Act of 1984 Telemarketing and Consumer Fraud and Abuse Prevention Act |
| Titles amended | 8, 12, 15, 18, 20, 31, 42, 47, 49, 50 |
| U.S.C. sections created | 18 USC § 2712, 31 USC § 5318A, 15 USC § 1681v, 8 USC § 1226A, 18 USC § 1993, 18 USC § 2339, 18 USC § 175b, 50 USC § 403-5b, 51 USC § 5103a |
| U.S.C. sections amended | 8 USC § 1105, 8 USC § 1182g, 8 USC § 1189, 8 USC § 1202, 12 USC § 1828, 12 USC § 3414, 15 USC § 1681a, 15 USC § 6102, 15 USC § 6106, 18 USC § 7, 18 USC § 81, 18 USC § 175, 18 USC § 470, 18 USC § 471, 18 USC § 472, 18 USC § 473, 18 USC § 474, 18 USC § 476, 18 USC § 477, 18 USC § 478, 18 USC § 479, 18 USC § 480, 18 USC § 481, 18 USC § 484, 18 USC § 493, 18 USC § 917, 18 USC § 930, 18 USC § 981, 18 USC § 1029, 18 USC § 1030, 18 USC § 1362, 18 USC § 1363, 18 USC § 1366, 18 USC § 1956, 18 USC § 1960, 18 USC § 1961, 18 USC § 1992, 18 USC § 2155, 18 USC § 2325, 18 USC § 2331, 18 USC § 2332e, 18 USC § 2339A, 18 USC § 2339B, 18 USC § 2340A, 18 USC § 2510, 18 USC § 2511, 18 USC § 2516, 18 USC § 2517, 18 USC § 2520, 18 USC § 2702, 18 USC § 2703, 18 USC § 2707, 18 USC § 2709, 18 USC § 2711, 18 USC § 3056, 18 USC § 3077, 18 USC § 3103, 18 USC § 3121, 18 USC § 3123, 18 USC § 3124, 18 USC § 3127, 18 USC § 3286, 18 USC § 3583, 20 USC § 1232g, 20 USC § 9007, 31 USC § 310 (redesignated), 31 USC § 5311, 31 USC § 5312, 31 USC § 5317, 31 USC § 5318, 31 USC § 5319, 31 USC § 5321, 31 USC § 5322, 31 USC § 5324, 31 USC § 5330, 31 USC § 5331, 31 USC § 5332, 31 USC § 5341, 42 USC § 2284, 42 USC § 2284, 42 USC § 3796, 42 USC § 3796h, 42 USC § 10601, 42 USC § 10602, 42 USC § 10603, 42 USC § 10603b, 42 USC § 14601, 42 USC § 14135A, 47 USC § 551, 49 USC § 31305, 49 USC § 46504, 49 USC § 46505, 49 USC § 60123, 50 USC § 403-3c, 50 USC § 401a, 50 USC § 1702, 50 USC § 1801, 50 USC § 1803, 50 USC § 1804, 50 USC § 1805, 50 USC § 1806, 50 USC § 1823, 50 USC § 1824, 50 USC § 1842, 50 USC § 1861, 50 USC § 1862, 50 USC § 1863 |
| Legislative history | |
| |
| Major amendments | |
| USA Freedom Act | |
The USA PATRIOT Act is an Act of Congress signed into law by United States President George W. Bush on October 26, 2001. With its ten-letter abbreviation (USA PATRIOT) expanded, the Act's full title is "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". The abbreviation, as well as the full title, have been attributed to Chris Cylke, a former staffer on the House Judiciary Committee.
In response to the September 11 attacks and the 2001 anthrax attacks, Congress swiftly passed legislation to strengthen national security. On October 23, 2001, Republican Rep. Jim Sensenbrenner introduced H.R. 3162 incorporating provisions from a previously-sponsored House bill and a Senate bill also introduced earlier in the month. The next day, the Act passed the House by a vote of 357–66, with Democrats comprising the overwhelming portion of dissent. The three Republicans voting "no" were Robert Ney of Ohio, Butch Otter of Idaho, and Ron Paul of Texas. On October 25, the Act passed the Senate by a 98–1 vote, the only dissident being Russ Feingold of Wisconsin.
Those opposing the law have criticized its authorization of indefinite detentions of immigrants; the permission given to law enforcement to search a home or business without the owner's or the occupant's consent or knowledge; the expanded use of National Security Letters, which allows the Federal Bureau of Investigation (FBI) to search telephone, e-mail, and financial records without a court order; and the expanded access of law enforcement agencies to business records, including library and financial records. Since its passage, several legal challenges have been brought against the act, and federal courts have ruled that a number of provisions are unconstitutional.
Many of the act's provisions were to sunset beginning December 31, 2005, approximately four years after its passage. In the months preceding the sunset date, anybody supporting the act pushed to make its sun-setting provisions permanent, while critics sought to revise various sections to enhance civil liberty protections. In July 2005, the U.S. Senate passed a reauthorization bill with substantial changes to several of the act's sections, while the House reauthorization bill kept most of the act's original language. The two bills were then reconciled in a conference committee criticized by Senators from both the Republican and Democratic parties for ignoring civil liberty concerns.
The bill, which removed most of the changes from the Senate version, passed Congress on March 2, 2006, and was signed by President Bush on March 9 and 10 of that year.
On May 26, 2011, President Barack Obama signed the PATRIOT Sunsets Extension Act of 2011, a four-year extension of three key provisions in the Act: roving wiretaps, searches of business records, and conducting surveillance of "lone wolves"—individuals suspected of terrorist-related activities not linked to terrorist groups.
Following a lack of Congressional approval, parts of the Patriot Act expired on June 1, 2015. With passing the USA Freedom Act on June 2, 2015, the expired parts were restored and renewed through 2019. However, Section 215 of the law was amended to stop the National Security Agency (NSA) from continuing its mass phone data collection program. Instead, phone companies will retain the data and the NSA can obtain information about targeted individuals with permission from a federal court.
Titles
President
George W. Bush in October 2001, elucidating on the government's
rationale behind the USA PATRIOT Act before signing into law.
Title I: Enhancing domestic security against terrorism
Title I authorizes measures to enhance the ability of domestic
security services to prevent terrorism. The title established a fund for
counter-terrorist activities and increased funding for the Terrorist
Screening Center which is administered by the FBI. The military was
authorized to provide assistance in some situations that involve weapons
of mass destruction when so requested by the Attorney General. The National Electronic Crime Task Force was expanded, along with the President's
authority and abilities in cases of terrorism. The title also condemned
the discrimination against Arab and Muslim Americans that happened soon
after the September 11 terrorist attacks. The impetus for many of the
provisions came from earlier bills, for instance the condemnation of
discrimination was originally proposed by Senator Tom Harkin (D-IA) in an amendment to the Combatting Terrorism Act of 2001, though in a different form. It originally included "the prayer of Cardinal Theodore McCarrick, the Archbishop of Washington in a Mass
on September 12, 2001 for our Nation and the victims in the immediate
aftermath of the terrorist hijackings and attacks in New York City, Washington, D.C., and Pennsylvania
reminds all Americans that 'We must seek the guilty and not strike out
against the innocent or we become like them who are without moral
guidance or proper direction.'"
Further condemnation of racial vilification and violence is also
spelled out in Title X, where there was condemnation of such activities
against Sikh Americans, who were mistaken for Muslims after the September 11th terrorist attack.
Title II: Surveillance procedures
Title II is titled "Enhanced Surveillance Procedures", and covers all
aspects of the surveillance of suspected terrorists, those suspected of
engaging in computer fraud or abuse, and agents of a foreign power who
are engaged in clandestine activities. It primarily made amendments to
FISA, and the ECPA, and many of the most controversial aspects of the
USA PATRIOT Act reside in this title. In particular, the title allows
government agencies to gather "foreign intelligence information" from
both U.S. and non-U.S. citizens, and changed FISA to make gaining
foreign intelligence information the significant purpose of FISA-based
surveillance, where previously it had been the primary purpose.
The change in definition was meant to remove a legal "wall" between
criminal investigations and surveillance for the purposes of gathering
foreign intelligence, which hampered investigations when criminal and
foreign surveillance overlapped.
However, that this wall even existed was found by the Federal
Surveillance Court of Review to have actually been a long-held
misinterpretation by government agencies. Also removed was the statutory
requirement that the government prove a surveillance target under FISA
is a non-U.S. citizen and agent of a foreign power, though it did
require that any investigations must not be undertaken on citizens who
are carrying out activities protected by the First Amendment. The title also expanded the duration of FISA physical search and surveillance orders, and gave authorities the ability to share information gathered before a federal grand jury with other agencies.
The scope and availability of wiretapping and surveillance orders
were expanded under Title II. Wiretaps were expanded to include
addressing and routing information to allow surveillance of packet switched networks—the Electronic Privacy Information Center
(EPIC) objected to this, arguing that it does not take into account
email or web addresses, which often contain content in the address
information. The Act allowed any district court judge in the United States to issue such surveillance orders and search warrants for terrorism investigations. Search warrants were also expanded, with the Act amending Title III of the Stored Communications Access Act
to allow the FBI to gain access to stored voicemail through a search
warrant, rather than through the more stringent wiretap laws.
Various provisions allowed for the disclosure of electronic
communications to law enforcement agencies. Those who operate or own a
"protected computer" can give permission for authorities to intercept
communications carried out on the machine, thus bypassing the
requirements of the Wiretap statute. The definition of a "protected computer" is defined in
and broadly encompasses those computers used in interstate or foreign
commerce or communication, including ones located outside the United
States. The law governing obligatory and voluntary disclosure of
customer communications by cable
companies was altered to allow agencies to demand such communications
under U.S.C. Title 18 provisions relating to the disclosure of
electronic communications (chapter 119), pen registers and trap and trace devices (chapter 206) and stored communications (121), though it excluded the disclosure of cable subscriber viewing habits. Subpoenas issued to Internet Service Providers
were expanded to include not only "the name, address, local and long
distance telephone toll billing records, telephone number or other
subscriber number or identity, and length of service of a subscriber"
but also session times and durations, types of services used,
communication device address information (e.g. IP addresses), payment method and bank account and credit card numbers.
Communication providers are also allowed to disclose customer records
or communications if they suspect there is a danger to "life and limb".
Title II established three very controversial provisions: "sneak and peek" warrants, roving wiretaps
and the ability of the FBI to gain access to documents that reveal the
patterns of U.S. citizens. The so-called "sneak and peek" law allowed
for delayed notification of the execution of search warrants. The period
before which the FBI must notify the recipients of the order was
unspecified in the Act—the FBI field manual says that it is a "flexible
standard"—and it may be extended at the court's discretion. These sneak and peek provisions were struck down by judge Ann Aiken on September 26, 2007, after a Portland attorney, Brandon Mayfield,
was wrongly jailed because of the searches. The court found the
searches to violate the provision that prohibits unreasonable searches
in the Fourth Amendment to the U.S. Constitution.
Roving wiretaps are wiretap orders that do not need to specify
all common carriers and third parties in a surveillance court order.
These are seen as important by the Department of Justice because they
believe that terrorists can exploit wiretap orders by rapidly changing
locations and communication devices such as cell phones, while opponents see it as violating the particularity clause of the Fourth Amendment.
Another highly controversial provision is one that allows the FBI to
make an order "requiring the production of any tangible things
(including books, records, papers, documents, and other items) for an
investigation to protect against international terrorism or clandestine
intelligence activities, provided that such investigation of a United
States person is not conducted solely upon the basis of activities
protected by the first amendment to the Constitution." Though it was not targeted directly at libraries, the American Library Association (ALA), in particular, opposed this provision.
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." However, the ALA's stance did not go without criticism. One prominent critic of the ALA's stance was the Manhattan Institute's Heather Mac Donald, who argued in an article for the New York City Journal that "[t]he furor over section 215 is a case study in Patriot Act fear-mongering."
The title also covers a number of other miscellaneous provisions,
including the expansion of the number of FISC judges from seven to
eleven (three of which must reside within 20 miles (32 km) of the District of Columbia), trade Sanctions against North Korea and Taliban-controlled Afghanistan and the employment of translators by the FBI.
At the insistence of Republican Representative Richard Armey, the Act had a number of sunset provisions
built in, which were originally set to expire on December 31, 2005. The
sunset provision of the Act also took into account any ongoing foreign
intelligence investigations and allowed them to continue once the
sections had expired.
The provisions that were to expire are below.
Title III: Anti-money-laundering to prevent terrorism
Title III of the Act, titled "International Money Laundering
Abatement and Financial Anti-Terrorism Act of 2001," is intended to
facilitate the prevention, detection and prosecution of international money laundering and the financing of terrorism. It primarily amends portions of the Money Laundering Control Act of 1986 (MLCA) and the Bank Secrecy Act of 1970
(BSA). It was divided into three subtitles, with the first dealing
primarily with strengthening banking rules against money laundering,
especially on the international stage. The second attempts to improve
communication between law enforcement agencies and financial
institutions, as well as expanding record keeping and reporting
requirements. The third subtitle deals with currency smuggling and
counterfeiting, including quadrupling the maximum penalty for
counterfeiting foreign currency.
The first subtitle tightened the record keeping requirements for
financial institutions, making them record the aggregate amounts of
transactions processed from areas of the world where money laundering is
a concern to the U.S. government. It also made institutions put into
place reasonable steps to identify beneficial owners of bank accounts and those who are authorized to use or route funds through payable-through accounts.
The U.S. Treasury was charged with formulating regulations intended to
foster information sharing between financial institutions to prevent
money-laundering.
Along with expanding record keeping requirements, it put new regulations
into place to make it easier for authorities to identify money
laundering activities and to make it harder for money launderers to mask
their identities.
If money laundering was uncovered, the subtitle legislated for the forfeiture of assets of those suspected of doing the money laundering.
In an effort to encourage institutions to take steps that would reduce
money laundering, the Treasury was given authority to block mergers of bank holding companies and banks
with other banks and bank holding companies that had a bad history of
preventing money laundering. Similarly, mergers between insured
depository institutions and non-insured depository institutions that
have a bad track record in combating money-laundering could be blocked.
Restrictions were placed on accounts and foreign banks. It prohibited shell banks
that are not an affiliate of a bank that has a physical presence in the
U.S. or that are not subject to supervision by a banking authority in a
non-U.S. country. It also prohibits or restricts the use of certain
accounts held at financial institutions.
Financial institutions must now undertake steps to identify the owners of any privately owned bank outside the U.S. who have a correspondent account
with them, along with the interests of each of the owners in the bank.
It is expected that additional scrutiny will be applied by the U.S.
institution to such banks to make sure they are not engaging in money
laundering. Banks must identify all the nominal and beneficial owners of
any private bank account opened and maintained in the U.S. by non-U.S.
citizens. There is also an expectation that they must undertake enhanced
scrutiny of the account if it is owned by, or is being maintained on
behalf of, any senior political figure where there is reasonable suspicion of corruption.
Any deposits made from within the U.S. into foreign banks are now deemed to have been deposited into any interbank account the foreign bank may have in the U.S. Thus any restraining order, seizure warrant or arrest warrant
may be made against the funds in the interbank account held at a U.S.
financial institution, up to the amount deposited in the account at the
foreign bank.
Restrictions were placed on the use of internal bank concentration accounts because such accounts do not provide an effective audit trail
for transactions, and this may be used to facilitate money laundering.
Financial institutions are prohibited from allowing clients to
specifically direct them to move funds into, out of, or through a
concentration account, and they are also prohibited from informing their
clients about the existence of such accounts. Financial institutions
are not allowed to provide any information to clients that may identify
such internal accounts.
Financial institutions are required to document and follow methods of
identifying where the funds are for each customer in a concentration
account that co-mingles funds belonging to one or more customers.
The definition of money laundering was expanded to include making
a financial transaction in the U.S. in order to commit a violent crime;
the bribery of public officials and fraudulent dealing with public
funds; the smuggling or illegal export of controlled munition and the importation or bringing in of any firearm or ammunition not authorized by the U.S. Attorney General and the smuggling of any item controlled under the Export Administration Regulations.
It also includes any offense where the U.S. would be obligated under a mutual treaty with a foreign nation to extradite
a person, or where the U.S. would need to submit a case against a
person for prosecution because of the treaty; the import of falsely
classified goods; computer crime; and any felony violation of the Foreign Agents Registration Act of 1938.
It also allows the forfeiture of any property within the jurisdiction of
the United States that was gained as the result of an offense against a
foreign nation that involves the manufacture, importation, sale, or
distribution of a controlled substance.
Foreign nations may now seek to have a forfeiture or judgment notification enforced by a district court of the United States.
This is done through new legislation that specifies how the U.S. government may apply for a restraining order to preserve the availability of property which is subject to a foreign forfeiture or confiscation judgement.
In taking into consideration such an application, emphasis is placed on the ability of a foreign court to follow due process.
The Act also requires the Secretary of Treasury to take all reasonable
steps to encourage foreign governments make it a requirement to include
the name of the originator in wire transfer
instructions sent to the United States and other countries, with the
information to remain with the transfer from its origination until the
point of disbursement.
The Secretary was also ordered to encourage international cooperation in investigations of money laundering, financial crimes, and the finances of terrorist groups.
The Act also introduced criminal penalties for corrupt
officialdom. An official or employee of the government who acts
corruptly—as well as the person who induces the corrupt act—in the
carrying out of their official duties will be fined by an amount that is
not more than three times the monetary equivalent of the bribe in
question. Alternatively they may be imprisoned for not more than 15
years, or they may be fined and imprisoned. Penalties apply to financial
institutions who do not comply with an order to terminate any
corresponding accounts within 10 days of being so ordered by the
Attorney General or the Secretary of Treasury. The financial institution
can be fined $US10,000 for each day the account remains open after the 10-day limit has expired.
The second annotation made a number of modifications to the BSA
in an attempt to make it harder for money launderers to operate and
easier for law enforcement and regulatory agencies to police money
laundering operations. One amendment made to the BSA was to allow the
designated officer or agency who receives suspicious activity reports to notify U.S. intelligence agencies.
A number of amendments were made to address issues related to record
keeping and financial reporting. One measure was a new requirement that
anyone who does business file a report for any coin and foreign currency
receipts that are over US$10,000 and made it illegal to structure
transactions in a manner that evades the BSA's reporting requirements.
To make it easier for authorities to regulate and investigate anti-money
laundering operations Money Services Businesses (MSBs)—those who
operate informal value transfer systems outside of the mainstream financial system—were included in the definition of a financial institution.
The BSA was amended to make it mandatory to report suspicious
transactions and an attempt was made to make such reporting easier for
financial institutions.
FinCEN was made a bureau of the United States Department of Treasury and the creation of a secure network
to be used by financial institutions to report suspicious transactions
and to provide alerts of relevant suspicious activities was ordered.
Along with these reporting requirements, a considerable number of
provisions relate to the prevention and prosecution of money-laundering.
Financial institutions were ordered to establish anti-money laundering
programs and the BSA was amended to better define anti-money laundering
strategy. Also increased were civil and criminal penalties for money laundering and the introduction of penalties for violations of geographic targeting orders and certain record-keeping requirements. A number of other amendments to the BSA were made through subtitle B, including granting the Board of Governors of the Federal Reserve System
power to authorize personnel to act as law enforcement officers to
protect the premises, grounds, property and personnel of any U.S.
National reserve bank and allowing the Board to delegate this authority
to U.S. Federal reserve bank.
Another measure instructed United States Executive Directors of
international financial institutions to use their voice and vote to
support any country that has taken action to support the U.S.'s War on
Terrorism. Executive Directors are now required to provide ongoing
auditing of disbursements made from their institutions to ensure that no
funds are paid to persons who commit, threaten to commit, or support
terrorism.
The third subtitle deals with currency crimes. Largely because of
the effectiveness of the BSA, money launders had been avoiding
traditional financial institutions to launder money and were using
cash-based businesses to avoid them. A new effort was made to stop the
laundering of money through bulk currency movements, mainly focusing on
the confiscation of criminal proceeds and the increase in penalties for
money laundering. Congress found that a criminal offense of merely
evading the reporting of money transfers was insufficient and decided
that it would be better if the smuggling of the bulk currency itself was
the offense. Therefore, the BSA was amended to make it a criminal
offense to evade currency reporting by concealing more than US$10,000 on
any person or through any luggage, merchandise or other container that
moves into or out of the U.S. The penalty for such an offense is up to 5
years' imprisonment and the forfeiture of any property up to the amount
that was being smuggled. It also made the civil and criminal penalty violations of currency reporting cases be the forfeiture of all a defendant's property that was involved in the offense, and any property traceable to the defendant. The Act prohibits and penalizes those who run unlicensed money transmitting businesses.
In 2005, this provision of the USA PATRIOT Act was used to prosecute
Yehuda Abraham for helping to arrange money transfers for British arms
dealer Hermant Lakhani, who was arrested in August 2003 after being
caught in a government sting. Lakhani had tried to sell a missile to an
FBI agent posing as a Somali militant.
The definition of counterfeiting was expanded to encompass analog,
digital or electronic image reproductions, and it was made an offense to
own such a reproduction device. Penalties were increased to 20 years'
imprisonment. Money laundering "unlawful activities" was expanded to include the provision of material support or resources to designated foreign terrorist organizations. The Act specifies that anyone who commits or conspires to undertake a fraudulent activity outside the jurisdiction of the United States, and which would be an offense in the U.S., will be prosecuted under 18 U.S.C. § 1029, which deals with fraud and related activity in connection with access devices.
Title IV: Border security
Title IV amends the Immigration and Nationality Act of 1952 to give more law enforcement and investigative power to the United States Attorney General and to the Immigration and Naturalization Service (INS). The Attorney General was authorized to waive any cap on the number of full-time employees (FTEs) assigned to the INS on the Northern border of the United States. Enough funds were set aside to triple the maximum number of Border Patrol personnel, Customs Service personnel and INS inspectors along with an additional US$50,000,000 funding for the INS and the U.S. Customs Service to improve technology for monitoring the Northern Border and acquiring additional equipment at the Canadian northern border. The INS was also given the authority to authorize overtime payments of up to an extra US$30,000 a year to INS employees. Access was given to the Department of State and the INS to criminal background information contained in the National Crime Information Center's Interstate Identification Index (NCIC-III), Wanted Persons File and any other files maintained by the National Crime Information Center to determine whether visa applicants and applicants could be admitted to the U.S. The Department of State
was required to form final regulations governing the procedures for
taking fingerprints and the conditions with which the department was
allowed to use this information. Additionally, the National Institute of Standards and Technology (NIST) was ordered to develop a technology standard to verify the identity of persons applying for a United States visa.
The reason was to make the standard the technology basis for a
cross-agency, the cross-platform electronic system used for conducting background checks, confirming identities and ensuring that people have not received visas under different names. This report was released on November 13, 2002;
however, according to NIST, this was later "determined that the
fingerprint system used was not as accurate as current state-of-the-art
fingerprint systems and is approximately equivalent to commercial
fingerprint systems available in 1998." This report was later superseded by section 303(a) of the Enhanced Border Security and Visa Entry Reform Act of 2002.
Under Subtitle C, various definitions relating to terrorism were altered and expanded. The INA was retroactively
amended to disallow aliens who are part of or representatives of a
foreign organization or any group who endorses acts of terrorism from
entering the U.S. This restriction also included the family of such
aliens.
The definition of "terrorist activity" was strengthened to include
actions involving the use of any dangerous device (and not just
explosives and firearms).
To "engage in terrorist activity" is defined as committing, inciting to
commit or planning and preparing to undertake an act of terrorism.
Included in this definition is the gathering of intelligence information
on potential terrorist targets, the solicitation of funds for a
terrorist organization or the solicitation of others to undertake acts
of terrorism. Those who provide knowing assistance to a person who is
planning to perform such activities are defined as undertaking terrorist
activities. Such assistance includes affording material support,
including a safe house,
transportation, communications, funds, transfer of funds or other
material financial benefit, false documentation or identification,
weapons (including chemical, biological, or radiological weapons), explosives, or training to perform the terrorist act.
The INA criteria for making a decision to designate an organization as a
terrorist organization was amended to include the definition of a
terrorist act.
Though the amendments to these definitions are retroactive, it does not
mean that it can be applied to members who joined an organization, but
since left, before it was designated to be a terrorist organization
under 8 U.S.C. § 1189 by the Secretary of State.
The Act amended the INA to add new provisions enforcing mandatory
detention laws. These apply to any alien who is engaged in terrorism,
or who is engaged in an activity that endangers U.S. national security.
It also applies to those who are inadmissible or who must be deported
because it is certified they are attempting to enter to undertake
illegal espionage;
are exporting goods, technology, or sensitive information illegally; or
are attempting to control or overthrow the government; or have, or will
have, engaged in terrorist activities.
The Attorney General or the Attorney General's deputy may maintain
custody of such aliens until they are removed from the U.S. unless it is
no longer deemed they should be removed, in which case they are
released. The alien can be detained for up to 90 days but can be held up
to six months after it is deemed that they are a national security
threat. However, the alien must be charged with a crime or removal
proceedings start no longer than seven days after the alien's detention,
otherwise the alien will be released. However, such detentions must be
reviewed every six months by the Attorney General, who can then decide
to revoke it, unless prevented from doing so by law. Every six months
the alien may apply, in writing, for the certification to be
reconsidered. Judicial review
of any action or decision relating to this section, including judicial
review of the merits of a certification, can be held under habeas corpus proceedings. Such proceedings can be initiated by an application filed with the United States Supreme Court, by any justice of the Supreme Court, by any circuit judge of the United States Court of Appeals for the District of Columbia Circuit, or by any district court otherwise having jurisdiction to entertain the application. The final order is subject to appeal to the United States Court of Appeals for the District of Columbia Circuit. Provisions were also made for a report to be required every six months of such decisions from the U.S. Attorney General to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate.
A sense of Congress was given that the U.S. Secretary of State
should expedite the full implementation of the integrated entry and exit
data system for airports, seaports, and land border ports of entry
specified in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA). They also found that the U.S. Attorney General should
immediately start the Integrated Entry and Exit Data System Task Force
specified in section 3 of the Immigration and Naturalization Service Data Management Improvement Act of 2000.
Congress wanted the primary focus of development of the entry-exit data
system was to be on the utilization of biometric technology and the
development of tamper-resistant documents readable at ports of entry.
They also wanted the system to be able to interface with existing law
enforcement databases.
The Attorney General was ordered to implement and expand the foreign
student monitoring program that was established under section 641(a) of
the IIRIRA.
which records the date and port of entry of each foreign student. The
program was expanded to include other approved educational institutions,
including air flight schools, language training schools or vocational
schools that are approved by the Attorney General, in consultation with
the Secretary of Education and the Secretary of State. US$36,800,000 was appropriated for the Department of Justice to spend on implementing the program.
The Secretary of State was ordered to audit and report back to Congress on the Visa waiver program specified under 8 U.S.C. § 1187
for each fiscal year until September 30, 2007. The Secretary was also
ordered to check for the implementation of precautionary measures to
prevent the counterfeiting and theft of passports as well as ascertain
that countries designated under the visa waiver program have established
a program to develop tamper-resistant passports. The Secretary was also ordered to report back to Congress on whether consulate shopping was a problem.
The last subtitle, which was introduced by Senators John Conyers
and Patrick Leahy, allows for the preservation of immigration benefits
for victims of terrorism, and the families of victims of terrorism.
They recognized that some families, through no fault of their own,
would either be ineligible for permanent residence in the United States
because of being unable to make important deadlines because of the
September 11 terrorist attacks, or had become ineligible to apply for
special immigration status because their loved one died in the attacks.
Title V: Removing obstacles to investigating terrorism
It allows the U.S. Attorney General to pay rewards pursuant of
advertisements for assistance to the Department of Justice to combat
terrorism and prevent terrorist acts, though amounts over $US250,000 may
not be made or offered without the personal approval of the Attorney
General or President, and once the award is approved the Attorney
General must give written notice to the Chairman and ranking minority
members of the Committee on Appropriations and the Judiciary of the
Senate and of the House of Representatives. The State Department Basic Authorities Act of 1956
was amended to allow the Department of State to offer rewards, in
consultation with the Attorney General, for the full or significant
dismantling of any terrorist organization and to identify any key leaders of terrorist organizations.
The Secretary of State was given authority to pay greater than
$US5 million if he so determines it would prevent terrorist actions
against the United States and Canada. The DNA Analysis Backlog Elimination Act was amended to include terrorism or crimes of violence in the list of qualifying Federal offenses.
Another perceived obstacle was to allow federal agencies to share
information with federal law enforcement agencies. Thus, the act now
allows federal officers who acquire information through electronic
surveillance or physical searches to consult with federal law
enforcement officers to coordinate efforts to investigate or protect
against potential or actual attacks, sabotage or international terrorism
or clandestine intelligence activities by an intelligence service or
network of a foreign power.
Secret Service
jurisdiction was extended to investigate computer fraud, access device
frauds, false identification documents or devices, or any fraudulent
activities against U.S. financial institutions. The General Education Provisions Act
was amended to allow the U.S. Attorney General or Assistant Attorney
General to collect and retain educational records relevant to an
authorized investigation or prosecution of an offense that is defined as
a Federal crime of terrorism and which an educational agency or
institution possesses. The Attorney General or Assistant Attorney
General must "certify that there are specific and articulable facts
giving reason to believe that the education records are likely to
contain information [that a Federal crime of terrorism may be being
committed]." An education institution that produces education records in
response to such a request is given legal immunity from any liability
that rises from such a production of records.
One of the most controversial aspects of the USA PATRIOT Act is in title V, and relates to National Security Letters (NSLs). An NSL is a form of administrative subpoena used by the FBI, and reportedly by other U.S. government agencies including the CIA and the Department of Defense
(DoD). It is a demand letter issued to a particular entity or
organization to turn over various records and data pertaining to
individuals. They require no probable cause or judicial oversight and
also contain a gag order,
preventing the recipient of the letter from disclosing that the letter
was ever issued. Title V allowed the use of NSLs to be made by a Special
Agent in charge of a Bureau field office, where previously only the
Director or the Deputy Assistant Director of the FBI were able to
certify such requests.
This provision of the Act was challenged by the ACLU on behalf of an
unknown party against the U.S. government on the grounds that NSLs
violate the First and Fourth Amendments of the U.S. Constitution because
there is no way to legally oppose an NSL subpoena in court, and that it
was unconstitutional not to allow a client to inform their Attorney as
to the order because of the gag provision of the letters. The court's
judgement found in favor of the ACLU's case, and they declared the law
unconstitutional.
Later, the USA PATRIOT Act was reauthorized and amendments were made to
specify a process of judicial review of NSLs and to allow the recipient
of an NSL to disclose receipt of the letter to an attorney or others
necessary to comply with or challenge the order.
However, in 2007 the U.S. District Court struck down even the
reauthorized NSLs because the gag power was unconstitutional as courts
could still not engage in a meaningful judicial review of these gags. On
August 28, 2015, Judge Victor Marrero of the federal district court in
Manhattan ruled the gag order of Nicholas Merrill
was unjustified. In his decision, Judge Marrero described the FBI's
position as, "extreme and overly broad," affirming that "courts cannot,
consistent with the First Amendment, simply accept the Government's
assertions that disclosure would implicate and create a risk." He also
found that the FBI's gag order on Mr. Merrill "implicates serious
issues, both with respect to the First Amendment and accountability of
the government to the people." Initially, the ruling was released in redaction
by Judge Marrero. The FBI was given 90 days to pursue any other
alternative course of action but elected not to do so. Upon release of
the unredacted ruling on November 30, 2015, it was revealed for the
first time the extent to which the FBI's NSL accompanied by a gag order
sought to collect information. Through the court documents, it was
revealed for the first time that through an NSL, the FBI believes it can
legally obtain information including an individual's complete web browsing history, the IP addresses
of everyone a person has corresponded with, and all the records of all
online purchases within the last 180 days. The FBI also claims via the
extension of an NSL, it can obtain cell site
location information. In the landmark case of Nicholas Merrill the FBI
in specific sought to seek the following information on an account: DSL
account information, radius log, subscriber name and related subscriber
information, account number, date the account opened or closed,
addresses associated with the account, subscriber day/evening telephone
numbers, screen names or other on-line names associated with the
account, order forms, records relating to merchandise orders/shipping
information for the last 180 days, all billing related to the account, internet service provider
(ISP), all email addresses associated with the account, internet
protocol address assigned to the account, all website information
registered to the account, uniform resource locator address assigned to
the account, any other information which you consider to be an
electronic communication transactional record. This was the first time
it was revealed the extent to which an NSL under the Patriot Act could
request communication information.
Title VI: Victims and families of victims of terrorism
Title VI amended the Victims of Crime Act of 1984
(VOCA) to change how the U.S. Victims of Crime Fund was managed and
funded, improving the speedy provision of aid to families of public
safety officers by expedited payments to officers or the families of
officers injured or killed in the line of duty. Payments must be made no
later than 30 days later.
The Assistant Attorney General was given expanded authority under
Section 614 of the USA PATRIOT Act to make grants to any organization
that administers any Office of Justice Programs, which includes the Public Safety Officers Benefits Program.
Further changes to the Victims of Crime Fund increased the amount of
money in the Fund and changed the way that funds were distributed.
The amount available for grants made through the Crime Victim Fund to
eligible crime victim compensation programs were increased from 40
percent to 60 percent of the total in the Fund. A program can provide
compensation to U.S. citizens who were adversely affected overseas. Means testing was also waived for those who apply for compensation.
Under VOCA, the Director may make an annual grant from the Crime
Victims Fund to support crime victim assistance programs. An amendment
was made to VOCA to include offers of assistance to crime victims in the
District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, and any other U.S. territory. VOCA also provides for compensation and assistance to victims of terrorism or mass violence.
This was amended to allow the Director to make supplemental grants to
States for eligible crime victim compensation and assistance programs,
and to victim service organizations, public agencies (including Federal,
State, or local governments) and non-governmental organizations that
provide assistance to victims of crime. The funds could be used to
provide emergency relief, including crisis response efforts, assistance,
compensation, training and technical assistance for investigations and
prosecutions of terrorism.
Title VII: Increased information sharing for critical infrastructure protection
Title VII has one section. The purpose of this title is to increase
the ability of U.S. law enforcement to counter terrorist activity that
crosses jurisdictional boundaries. It does this by amending the Omnibus Crime Control and Safe Streets Act of 1968 to include terrorism as a criminal activity.
Title VIII: Terrorism criminal law
Title VIII alters the definitions of terrorism and establishes or
re-defines rules with which to deal with it. It redefined the term
"domestic terrorism" to broadly include mass destruction as well as
assassination or kidnapping as a terrorist activity. The definition also
encompasses activities that are "dangerous to human life that are a
violation of the criminal laws of the United States or of any State" and
are intended to "intimidate or coerce a civilian population,"
"influence the policy of a government by intimidation or coercion," or
are undertaken "to affect the conduct of a government by mass
destruction, assassination, or kidnapping" while in the jurisdiction of
the United States.
Terrorism is also included in the definition of racketeering.
Terms relating to cyber-terrorism are also redefined, including the term "protected computer," "damage," "conviction," "person," and "loss."
New penalties were created to convict those who attack mass transportation systems.
If the offender committed such an attack while no passenger was on
board, they are fined and imprisoned for a maximum of 20 years. However,
if the activity was undertaken while the mass transportation vehicle or
ferry was carrying a passenger at the time of the offense, or the
offense resulted in the death of any person, then the punishment is a fine and life imprisonment.
The title amends the biological weapons statute to define the use of a
biological agent, toxin, or delivery system as a weapon, other than when
it is used for "prophylactic, protective, bona fide
research, or other peaceful purposes." Penalties for anyone who cannot
prove reasonably that they are using a biological agent, toxin or
delivery system for these purposes are 10 years' imprisonment, a fine or
both.
A number of measures were introduced in an attempt to prevent and
penalize activities that are deemed to support terrorism. It was made a
crime to harbor or conceal terrorists, and those who do are subject to a
fine or imprisonment of up to 10 years, or both.
U.S. forfeiture
law was also amended to allow authorities to seize all foreign and
domestic assets from any group or individual that is caught planning to
commit acts of terrorism against the U.S. or U.S. citizens. Assets may
also be seized if they have been acquired or maintained by an individual
or organization for the purposes of further terrorist activities.
One section of the Act (section 805) prohibited "material support" for
terrorists, and in particular included "expert advice or assistance."
In 2004, after the Humanitarian Law Project filed a civil action against the U.S. government, a Federal District Court struck this down as unconstitutionally vague; but in 2010 the Supreme Court upheld it.
Congress later improved the law by defining the definitions of the
"material support or resources," "training," and "expert advise or
resources."
Cyberterrorism was dealt with in various ways. Penalties apply to
those who either damage or gain unauthorized access to a protected
computer and then commit a number of offenses. These offenses include
causing a person to lose an aggregate amount greater than US$5,000, as
well as adversely affecting someone's medical examination, diagnosis or
treatment. It also encompasses actions that cause a person to be
injured, a threat to public health or safety, or damage to a
governmental computer that is used as a tool to administer justice,
national defense or national security. Also prohibited was extortion
undertaken via a protected computer. The penalty for attempting to
damage protected computers through the use of viruses or other software
mechanism was set to imprisonment for up to 10 years, while the penalty
for unauthorized access and subsequent damage to a protected computer
was increased to more than five years' imprisonment. However, should the
offense occur a second time, the penalty increases up to 20 years'
imprisonment.
The act also specified the development and support of cybersecurity
forensic capabilities. It directs the Attorney General to establish
regional computer forensic laboratories that have the capability of
performing forensic examinations of intercepted computer evidence
relating to criminal activity and cyberterrorism, and that have the
capability of training and educating Federal, State, and local law
enforcement personnel and prosecutors in computer crime, and to
"facilitate and promote the sharing of Federal law enforcement expertise
and information about the investigation, analysis, and prosecution of
computer-related crime with State and local law enforcement personnel
and prosecutors, including the use of multijurisdictional task forces."
The sum of $50,000,000 was authorized for establishing such labs.
Title IX: Improved intelligence
Title IX amends the National Security Act of 1947 to require the Director of Central Intelligence
(DCI) to establish requirements and priorities for foreign intelligence
collected under FISA and to provide assistance to the United States
Attorney General to ensure that information derived from electronic
surveillance or physical searches is disseminated for efficient and
effective foreign intelligence purposes.
With the exception of information that might jeopardize an ongoing law
enforcement investigation, it was made a requirement that the Attorney
General, or the head of any other department or agency of the Federal
Government with law enforcement responsibilities, disclose to the
Director any foreign intelligence acquired by the U.S. Department of
Justice. The Attorney General and Director of Central Intelligence were
directed to develop procedures for the Attorney General to follow in
order to inform the Director, in a timely manner, of any intention of
investigating criminal activity of a foreign intelligence source or
potential foreign intelligence source based on the intelligence tip-off
of a member of the intelligence community. The Attorney General was also
directed to develop procedures on how to best administer these matters. International terrorist activities were made to fall within the scope of foreign intelligence under the National Security Act.
A number of reports were commissioned relating to various
intelligence-related government centers. One was commissioned into the
best way of setting up the National Virtual Translation Center,
with the goal of developing automated translation facilities to assist
with the timely and accurate translation of foreign intelligence
information for elements of the U.S. intelligence community.
The USA PATRIOT Act required this to be provided on February 1, 2002;
however, the report, entitled "Director of Central Intelligence Report
on the National Virtual Translation Center: A Concept Plan to Enhance
the Intelligence Community's Foreign Language Capabilities, April 29,
2002" was received more than two months late, which the Senate Select Committee on Intelligence
reported was "a delay which, in addition to contravening the explicit
words of the statute, deprived the Committee of timely and valuable
input into its efforts to craft this legislation."
Another report was commissioned on the feasibility and desirability of
reconfiguring the Foreign Terrorist Asset Tracking Center and the Office of Foreign Assets Control of the Department of the Treasury.
It was due by February 1, 2002; however, it was never written. The
Senate Select Committee on Intelligence later complained that "[t]he
Director of Central Intelligence and the Secretary of the Treasury
failed to provide a report, this time in direct contravention of a
section of the USA PATRIOT Act" and they further directed "that the
statutorily-directed report be completed immediately, and that it should
include a section describing the circumstances which led to the
Director's failure to comply with lawful reporting requirements."
Other measures allowed certain reports on intelligence and
intelligence-related matters to be deferred until either February 1,
2002 or a date after February 1, 2002 if the official involved certified
that preparation and submission on February 1, 2002, would impede the
work of officers or employees engaged in counterterrorism activities.
Any such deferral required congressional notification before it was
authorized.
The Attorney General was charged with training officials in identifying
and utilizing foreign intelligence information properly in the course
of their duties. The government officials include those in the Federal
Government who do not normally encounter or disseminate foreign
intelligence in the performance of their duties, and State and local
government officials who encounter, or potentially may encounter in the
course of a terrorist event, foreign intelligence in the performance of
their duties.
A sense of Congress was expressed that officers and employees of the
intelligence community should be encouraged to make every effort to
establish and maintain intelligence relationships with any person,
entity, or group while they conduct lawful intelligence activities.
Title X: Miscellaneous
Title X created or altered a number of miscellaneous laws that did
not really fit into any other section of the USA PATRIOT Act. Hazmat licenses were limited to drivers who pass background checks and who can demonstrate they can handle the materials.
The Inspector General of the Department of Justice
was directed to appoint an official to monitor, review and report back
to Congress all allegations of civil rights abuses against the DoJ.
It amended the definition of "electronic surveillance" to exclude the
interception of communications done through or from a protected computer
where the owner allows the interception, or is lawfully involved in an
investigation.
Money laundering cases may now be brought in the district the money
laundering was committed or where a money laundering transfer started
from.
Aliens who committed money laundering were also prohibited from entering the U.S.
Grants were provided to first responders to assist them in responding to and preventing terrorism. US$5,000,000 was authorized to be provided to the Drug Enforcement Administration (DEA) to train police in South and East Asia.
The Attorney General was directed to commission a study on the feasibility of using biometric
identifiers to identify people as they attempt to enter the United
States, and which would be connected to the FBI's database to flag
suspected criminals.
Another study was also commissioned to determine the feasibility of providing airlines names of suspected terrorists before they boarded flights.
The Department of Defense was given temporary authority to use their funding for private contracts for security purposes.
The last title also created a new Act called the Crimes Against Charitable Americans Act which amended the Telemarketing and Consumer Fraud and Abuse Prevention Act to require telemarketers who call on behalf of charities
to disclose the purpose and other information, including the name and
mailing address of the charity the telemarketer is representing.
It also increased the penalties from one year's imprisonment to five
years' imprisonment for those committing fraud by impersonating a Red Cross member.
Section expirations
| Status | Section | Title | Expiration date |
|---|---|---|---|
| ✓ | PA 201 | Authority to intercept wire, oral, and electronic communications relating to terrorism and others | |
| ✓ | PA 202 | Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses | |
| ✓ | PA 203(b) | Authority to share electronic, wire and oral interception information | |
| ✓ | PA 204 | Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications | |
| ✓ | PA 206 50 USC 1805(c)(2)(B) |
Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978. | 2019-12-15 |
| ✓ | PA 207 | Duration of FISA surveillance of non-United States persons who are agents of a foreign power | |
| ✓ | PA 209 | Seizure of voice-mail messages pursuant to warrants | |
| ✓ | PA 212 | Emergency disclosure of electronic communications to protect life and limb | |
| ✓ | PA 214 | Pen register and trap and trace authority under FISA | |
| ✖ | PA 215
50 USC 1861
|
Access to records and other items under the Foreign Intelligence Surveillance Act. | |
| ✓ | PA 217 | Interception of computer trespasser communications | |
| ✓ | PA 218 | Foreign intelligence information | |
| ✓ | PA 220 | Nationwide service of search warrants for electronic evidence | |
| ✓ | PA 223 | Civil liability for certain unauthorized disclosures | |
| ✓ | PA 225 | Immunity for compliance with FISA wiretap | |
| ✓ | IRTPA 6001 50 USC 1801(b)(1)(C) |
"Lone wolf" provision | 2019-12-15 |
Controversy
The USA PATRIOT Act has generated a great deal of controversy since its enactment.
Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks,
believing that there would have been little debate. They view the Act
as one that was hurried through the Senate with little change before it
was passed. (Senators Patrick Leahy and Russ Feingold proposed amendments to modify the final revision.)
The sheer magnitude of the Act itself was noted by Michael Moore in his controversial film Fahrenheit 9/11. In one of the scenes of the movie, he records Congressman Jim McDermott alleging that no Senator had read the bill
and John Conyers, Jr. as saying, "We don't read most of the bills. Do
you really know what that would entail if we read every bill that we
passed?" Congressman Conyers then answers his own rhetorical question,
asserting that if they did it would "slow down the legislative process". As a dramatic device, Moore then hired an ice-cream van
and drove around Washington, D.C. with a loud speaker, reading out the
Act to puzzled passers-by, which included a few Senators.
However, Moore was not the only commentator to notice that not many people had read the Act. When Dahlia Lithwick and Julia Turne for Slate asked, "How bad is PATRIOT, anyway?", they decided that it was "hard to tell" and stated:
The ACLU, in a new fact sheet challenging the DOJ Web site, wants you to believe that the act threatens our most basic civil liberties. Ashcroft and his roadies call the changes in law "modest and incremental." Since almost nobody has read the legislation, much of what we think we know about it comes third-hand and spun. Both advocates and opponents are guilty of fear-mongering and distortion in some instances.
One prime example of a controversy of the Patriot Act is shown in the case of Susan Lindauer.
Another is the recent court case United States v. Antoine Jones.
A nightclub owner was linked to a drug trafficking stash house via a
law enforcement GPS tracking device attached to his car. It was placed
there without a warrant, which caused a serious conviction obstacle for
federal prosecutors in court. Through the years the case rose all the
way to the United States Supreme Court where the conviction was
overturned in favor of the defendant. The court found that increased
monitoring of suspects caused by such legislation like the Patriot Act
directly put the suspects' Constitutional rights in jeopardy.
The Electronic Privacy Information Center
(EPIC) has criticized the law as unconstitutional, especially when "the
private communications of law-abiding American citizens might be
intercepted incidentally", while the Electronic Frontier Foundation held that the lower standard applied to wiretaps "gives the FBI a 'blank check' to violate the communications privacy of countless innocent Americans". Others do not find the roving wiretap legislation to be as concerning. Professor David D. Cole of the Georgetown University Law Center, a critic of many of the provisions of the Act, found that though they come at a cost to privacy are a sensible measure while Paul Rosenzweig, a Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation,
argues that roving wiretaps are just a response to rapidly changing
communication technology that is not necessarily fixed to a specific
location or device.
The Act also allows access to voicemail through a search warrant rather than through a title III wiretap order. James Dempsey, of the CDT, believes that it unnecessarily overlooks the importance of notice under the Fourth Amendment and under a Title III wiretap,
and the EFF criticizes the provision's lack of notice. However, the
EFF's criticism is more extensive—they believe that the amendment "is in
possible violation of the Fourth Amendment to the U.S. Constitution"
because previously if the FBI listened to voicemail illegally, it could
not use the messages in evidence against the defendant. Others disagree with these assessments. Professor Orin Kerr, of the George Washington University school of law, believes that the ECPA
"adopted a rather strange rule to regulate voicemail stored with
service providers" because "under ECPA, if the government knew that
there was one copy of an unopened private message in a person's bedroom
and another copy on their remotely stored voicemail, it was illegal for
the FBI to simply obtain the voicemail; the law actually compelled the
police to invade the home and rifle through people's bedrooms so as not
to disturb the more private voicemail." In Professor Kerr's opinion,
this made little sense and the amendment that was made by the USA
PATRIOT Act was reasonable and sensible.
The USA PATRIOT Act's expansion of court jurisdiction to allow
the nationwide service of search warrants proved controversial for the
EFF.
They believe that agencies will be able to "'shop' for judges that have
demonstrated a strong bias toward law enforcement with regard to search
warrants, using only those judges least likely to say no—even if the
warrant doesn't satisfy the strict requirements of the Fourth Amendment
to the Constitution", and that it reduces the likelihood that smaller ISPs
or phone companies will try to protect the privacy of their clients by
challenging the warrant in court—their reasoning is that "a small San
Francisco ISP served with such a warrant is unlikely to have the
resources to appear before the New York court that issued it."
They believe that this is bad because only the communications provider
will be able to challenge the warrant as only they will know about
it—many warrants are issued ex parte, which means that the target of the order is not present when the order is issued.
For a time, the USA PATRIOT Act allowed for agents to undertake "sneak and peek" searches.
Critics such as EPIC and the ACLU strongly criticized the law for violating the Fourth Amendment, with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed.
However, supporters of the amendment, such as Heather Mac Donald, a fellow at the Manhattan Institute and contributing editor to the New York City Journal,
expressed the belief that it was necessary because the temporary delay
in notification of a search order stops terrorists from tipping off
counterparts who are being investigated.
In 2004, FBI agents used this provision to search and secretly examine the home of Brandon Mayfield, who was wrongfully jailed for two weeks on suspicion of involvement in the Madrid train bombings. While the U.S. Government did publicly apologize to Mayfield and his family, Mayfield took it further through the courts. On September 26, 2007, Judge Ann Aiken
found the law was, in fact, unconstitutional as the search was an
unreasonable imposition on Mayfield and thus violated the Fourth
Amendment.
Laws governing the material support of terrorism proved contentious. It was criticized by the EFF for infringement of freedom of association. The EFF argues that had this law been enacted during Apartheid, U.S. citizens would not have been able to support the African National Congress
(ANC) as the EFF believes the ANC would have been classed as a
terrorist organization. They also used the example of a humanitarian
social worker being unable to train Hamas
members how to care for civilian children orphaned in the conflict
between Israelis and Palestinians, a lawyer being unable to teach IRA members about international law, and peace workers being unable to offer training in effective peace negotiations or how to petition the United Nations regarding human rights abuses.
Another group, the Humanitarian Law Project,
also objected to the provision prohibiting "expert advise and
assistance" to terrorists and filed a suit against the U.S. government
to have it declared unconstitutional. In 2004 a Federal District Court
struck the provision down as unconstitutionally vague, but in 2010 the Supreme Court reversed that decision.
Perhaps one of the biggest controversies involved the use of National Security Letters (NSLs) by the FBI. Because they allow the FBI to search telephone, email, and financial records without a court order, they were criticized by many parties, including the American Civil Liberties Union.
Although FBI officials have a series of internal "checks and balances"
that must be met before the issue of an NSL, Federal Judge Victor
Marrero ruled the NSL provisions unconstitutional.
In November 2005, BusinessWeek
reported that the FBI had issued tens of thousands of NSLs and had
obtained one million financial, credit, employment, and in some cases,
health records from the customers of targeted Las Vegas
businesses. Selected businesses included casinos, storage warehouses
and car rental agencies. An anonymous Justice official claimed that such
requests were permitted under section 505 of the USA PATRIOT Act and
despite the volume of requests insisted "We are not inclined to ask
courts to endorse fishing expeditions".
Before this was revealed, however, the ACLU challenged the
constitutionality of NSLs in court. In April 2004, they filed suit
against the government on behalf of an unknown internet service provider who had been issued an NSL, for reasons unknown. In ACLU v. DoJ,
the ACLU argued that the NSL violated the First and Fourth Amendments
of the U.S. Constitution because the USA PATRIOT Act failed to spell out
any legal process whereby a telephone or Internet company could try to
oppose an NSL subpoena in court. The court agreed, and found that
because the recipient of the subpoena could not challenge it in court it
was unconstitutional.
Congress later tried to remedy this in a reauthorization Act, but
because they did not remove the non-disclosure provision a Federal court
again found NSLs to be unconstitutional because they prevented courts
from engaging in meaningful judicial review.
Another provision of the USA PATRIOT Act has caused a great deal
of consternation among librarians. Section 215 allows the FBI to apply
for an order to produce materials that assist in an investigation
undertaken to protect against international terrorism or clandestine
intelligence activities. Among the "tangible things" that could be
targeted, it includes "books, records, papers, documents, and other
items".
Supporters of the provision point out that these records are held
by third parties, and therefore are exempt from a citizen's reasonable
expectations of privacy and also maintain that the FBI has not abused
the provision.
As proof, then Attorney General John Ashcroft released information in
2003 that showed that section 215 orders had never been used.
However, the American Library Association
strongly objected to the provision, believing that library records are
fundamentally different from ordinary business records, and that the
provision would have a chilling effect
on free speech. The association became so concerned that they formed a
resolution condemning the USA PATRIOT Act, and which urged members to
defend free speech and protect patrons' privacy.
They urged librarians to seek legal advice before complying with a
search order and advised their members to only keeping records for as
long as was legally needed.
Consequently, reports started filtering in that librarians were shredding records to avoid having to comply with such orders.
In 2005, Library Connection, a nonprofit consortium of 27 libraries in Connecticut, known as the Connecticut Four
worked with the ACLU to lift a gag order for library records,
challenging the government's power under Section 505 to silence four
citizens who wished to contribute to public debate on the PATRIOT Act.
This case became known as Doe v. Gonzales.
In May 2006, the government finally gave up its legal battle to
maintain the gag order. In a summary of the actions of the Connecticut
Four and their challenge to the USA PATRIOT Act, Jones (2009: 223)
notes: "Librarians need to understand their country's legal balance
between the protection of freedom of expression and the protection of
national security. Many librarians believe that the interests of
national security, important as they are, have become an excuse for
chilling the freedom to read."
Another controversial aspect of the USA PATRIOT Act is the
immigration provisions that allow for the indefinite detention of any
alien who the Attorney General believes may cause a terrorist act. Before the USA PATRIOT Act was passed, Anita Ramasastry, an associate professor of law and a director of the Shidler Center for Law, Commerce, & Technology at the University of Washington School of Law in Seattle,
Washington, accused the Act of depriving basic rights for immigrants to
America, including legal permanent residents. She warned that
"Indefinite detention upon secret evidence—which the USA PATRIOT Act
allows—sounds more like Taliban
justice than ours. Our claim that we are attempting to build an
international coalition against terrorism will be severely undermined if
we pass legislation allowing even citizens of our allies to be
incarcerated without basic U.S. guarantees of fairness and justice."
Many other parties have also been strongly critical of the provision.
Russell Feingold, in a Senate floor statement, claimed that the
provision "falls short of meeting even basic constitutional standards of
due process and fairness [as it] continues to allow the Attorney
General to detain persons based on mere suspicion".
The University of California passed a resolution condemning (among other things) the indefinite detention provisions of the Act,
while the ACLU has accused the Act of giving the Attorney General
"unprecedented new power to determine the fate of immigrants ... Worse,
if the foreigner does not have a country that will accept them, they can
be detained indefinitely without trial."
Another controversial aspect of the USA PATRIOT Act is its effect on the privacy of Canadians living in the province of British Columbia
(B.C.). British Columbia's privacy commissioner raises concerns that
the USA PATRIOT Act will allow the United States government to access
Canadians' private information, such as personal medical records, that
are outsourced to American companies. Although the government of B.C.
has taken measures to prevent United States authorities from obtaining
information, the widespread powers of the USA PATRIOT Act could overcome
legislation that is passed in Canada.
B.C. Privacy Commissioner David Loukidelis stated in a report on the
consequences of the USA PATRIOT Act, "once information is sent across
borders, it's difficult, if not impossible, to control".
In an effort to maintain their privacy, British Columbia placed amendments on the Freedom of Information and Protection of Privacy Act
(FOIPPA), which was enacted as law on October 21, 2004. These
amendments aim to place more firm limitations on "storing, accessing,
and disclosing of B.C. public sector data by service providers."
These laws only pertain to public sector data and do not cover
trans-border or private sector data in Canada. The public sector
establishments include an estimated 2,000 "government ministries,
hospitals, boards of health, universities and colleges, school boards,
municipal governments and certain Crown corporations and agencies." In response to these laws, many companies are now specifically opting to host their sensitive data outside the United States.
Legal action has been taken in Nova Scotia
to protect the province from the USA PATRIOT Act's data collecting
methods. On November 15, 2007 the government of Nova Scotia passed a
legislation aimed to protect Nova Scotians' personal information from
being brought forward by the USA PATRIOT Act. The act was entitled "The
new Personal Information International Disclosure Protection Act".
The goal of the act is to establish requirements to protect personal
information from being revealed, as well as punishments for failing to
do so. Justice Minister Murray Scott stated, "This legislation will help
ensure that Nova Scotians' personal information will be protected. The
act outlines the responsibilities of public bodies, municipalities and
service providers and the consequences if these responsibilities are not
fulfilled."
In the 1980s, the Bank of Nova Scotia was the center of an early,
pre-Internet data-access case that led to the disclosure of banking
records.
After suspected abuses of the USA PATRIOT Act were brought to
light in June 2013 with articles about collection of American call
records by the NSA and the PRISM program (see 2013 mass surveillance disclosures), Representative Jim Sensenbrenner, Republican of Wisconsin, who introduced the Patriot Act in 2001, said that the National Security Agency overstepped its bounds.
He released a statement saying "While I believe the Patriot Act
appropriately balanced national security concerns and civil rights, I
have always worried about potential abuses." He added: "Seizing phone
records of millions of innocent people is excessive and un-American."
Reauthorizations
The USA PATRIOT Act was reauthorized by three bills. The first, the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, was passed by both houses of Congress in July 2005. This bill reauthorized provisions of the USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act of 2004. It created new provisions relating to the death penalty for terrorists, enhancing security at seaports, new measures to combat the financing of terrorism, new powers for the Secret Service, anti-methamphetamine initiatives and a number of other miscellaneous provisions. The second reauthorization act, the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, amended the first and was passed in February 2006.
The first act reauthorized all but two of the provisions of Title
II that would have expired. Two sections were changed to sunset on
December 31, 2009: section 206—the roving wiretap provision—and section
215, which allowed access to business records under FISA. Section 215
was amended further regardless so as to give greater judicial oversight
and review. Such orders were also restricted to be authorized by only
the FBI Director, the FBI Deputy Director, or the Executive Assistant
Director for National Security, and minimization procedures were
specified to limit the dissemination and collection of such information.
Section 215 also had a "gag" provision, which was changed to allow the
defendant to contact their Attorney.
However, the change also meant that the defendant was also made to tell
the FBI who he (or she) was disclosing the order to—this requirement
was removed by the USA PATRIOT Act Additional Reauthorizing Amendments Act.
On Saturday, February 27, 2010, President Barack Obama
signed into law legislation that would temporarily extend, for one
year, three controversial provisions of the Patriot Act that had been
set to expire:
- Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
- Allow court-approved seizure of records and property in anti-terrorism operations.
- Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.
In a vote on February 8, 2011, the House of Representatives considered a further extension of the Act through the end of 2011.
House leadership moved the extension bill under suspension of the
rules, which is intended for noncontroversial legislation and requires
two-thirds majority to pass.
After the vote, the extension bill did not pass; 277 members voted in
favor, which was less than the 290 votes needed to pass the bill under
suspension of the rules. Without an extension, the Act was set to expire on February 28, 2011. However, it eventually passed, 275–144. The FISA Sunsets Extension Act of 2011 was signed into law February 25, 2011.
On May 26, 2011, President Barack Obama used an Autopen
to sign the PATRIOT Sunsets Extension Act of 2011, a four-year
extension of three key provisions in the USA PATRIOT Act while he was in
France: roving wiretaps, searches of business records (the "library records provision"),
and conducting surveillance of "lone wolves"—individuals suspected of
terrorist-related activities not linked to terrorist groups. Republican leaders questioned if the use of the Autopen met the constitutional requirements for signing a bill into law.
As NSL provisions of the USA PATRIOT Act had been struck by the courts
the reauthorization Act amended the law in an attempt to make them
lawful. It provided for judicial review and the legal right of a
recipient to challenge the validity of the letter. The reauthorization
act still allowed NSLs to be closed and all evidence to be presented in camera and ex parte.
Gag provisions were maintained, but were not automatic. They only
occurred when the Deputy Assistant Director of the FBI or a Special
Agent in Charge in a Bureau field office certified that disclosure would
result in "a danger to the national security of the United States,
interference with a criminal, counter-terrorism, or counterintelligence
investigation, interference with diplomatic relations, or danger to the
life or physical safety of any person".
However, should there be no non-disclosure order, the defendant can
disclose the fact of the NSL to anyone who can render them assistance in
carrying out the letter, or to an attorney for legal advice. Again,
however, the recipient was ordered to inform the FBI of such a
disclosure. Because of the concern over the chilling effects of such a requirement, the Additional Reauthorization Amendments Act removed the requirement to inform the FBI that the recipient spoke about the NSL to their Attorney. Later, the Additional Reauthorization Amendments Act excluded libraries from receiving NSLs, except where they provide electronic communications services.
The reauthorization Act also ordered the Attorney General submit a
report semi-annually to the House and Senate Judiciary Committees, the
House and Senate Intelligence Committees and the House Committee on Financial Services and the Senate Committee on Banking, Housing, and Urban Affairs on all NSL request made under the Fair Credit Reporting Act.
Changes were made to the roving wiretap provisions of the USA
PATRIOT Act. Applications and orders for such wiretaps must describe the
specific target of the electronic surveillance if the identity of the
target is not known. If the nature and location of each of the
facilities or places targeted for surveillance is not known, then after
10 days the agency must provide notice to the court. The notice must
include the nature and location of each new facility or place at which
the electronic surveillance was directed. It must also describe the
facts and circumstances relied upon by the applicant to justify the
applicant's belief that each new surveillance place or facility under
surveillance is or was being used by the target of the surveillance. The
applicant must also provide a statement detailing any proposed
minimization procedures that differ from those contained in the original
application or order, that may be necessitated by a change in the
facility or place at which the electronic surveillance is directed.
Applicants must detail the total number of electronic surveillances that
have been or are being conducted under the authority of the order.
Section 213 of the USA PATRIOT Act was modified. Previously it
stated that delayed notifications would be made to recipients of "sneak
and peek" searches in a "reasonable period". This was seen as
unreasonable, as it was undefined and could potentially be used
indefinitely. Thus, the reauthorization act changed this to a period not
exceeding 30 days after the date of the execution of the search
warrant. Courts were given the opportunity to extend this period if they
were provided good cause to do so. Section 213 states that delayed
notifications could be issued if there is "reasonable cause to believe
that providing immediate notification of the execution of the warrant
may have an adverse result". This was criticized, particularly by the
ACLU, for allowing potential abuse by law enforcement agencies and was later amended to prevent a delayed notification "if the adverse results consist only of unduly delaying a trial". In September 2007 an Oregon US District Court struck down the Sneak and Peak provisions of the USA PATRIOT ACT, but in December 2009 the Ninth Circuit overturned this decision.
The reauthorization act also legislates increased congressional
oversight for emergency disclosures by communication providers
undertaken under section 212 of the USA PATRIOT Act.
The duration of FISA surveillance and physical search orders were
increased. Surveillance performed against "lone wolf terrorists" under
section 207 of the USA PATRIOT Act were increased to 120 days for an
initial order, while pen registers and trap and trace device extensions
under FISA were increased from 90 days to a year. The reauthorization
act also increased congressional oversight, requiring a semi-annual
report into physical searches and the use of pen registers and trap and
trace devices under FISA.
The "lone wolf terrorist" provision (Section 207) was a sunset
provision that also was to have expired; however, this was enhanced by
the Intelligence Reform and Terrorism Prevention Act of 2004. The reauthorization act extended the expiration date to December 31, 2009. The amendment to material support law done in the Intelligence Reform and Terrorism Prevention Act was also made permanent.
The definition of terrorism was further expanded to include receiving
military-type training from a foreign terrorist organization and narcoterrorism. Other provisions of the reauthorization act was to merge the law outlawing train wrecking (18 U.S.C. § 992) and the law outlawing attacks on mass transportation systems (18 U.S.C. § 1993) into a new section of Title 18 of the U.S. Code (18 U.S.C. § 1992) and also to criminalize the act of planning a terrorist attack against a mass transport system. Forfeiture law
was further changed and now assets within U.S. jurisdiction will be
seized for illegally trafficking in nuclear, chemical, biological or
radiological weapons technology or material, if such offense is
punishable under foreign law by death
or imprisonment for a term exceeding one year. Alternatively, this
applies if similar punishment would be so punishable if committed within
the U.S. A sense of Congress was further expressed that victims of terrorism should be entitled to the forfeited assets of terrorists.
