USA PATRIOT Act

The Patriot Act,, (U.S. H.R. 3162, S. 1510, Public Law 107–56) is an act of federal legislation in the United States. Enacted by an overwhelming majority of the U.S. Congress after the September 11, 2001 Terrorist Attacks, it was primarily intended to enhance the authority of U.S. law enforcement to preempt and investigate potential terrorism. Expanding on FISA, the USA Act defines terrorism as activity that appears to be intended to (1) intimidate or coerce the government or civil population AND (2) breaks criminal laws AND (3) endangers human life. This definition is adopted in the USA PATRIOT Act. Critics claim the Act is unnecessary and enables U.S. law enforcement to infringe upon free-speech, freedom of the press, human rights, and right to privacy.

Its given name is USA PATRIOT Act, which is a backronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001¹

The bill passed 98–1 in the United States Senate, and 357–66 in the United States House of Representatives; Senator Russ Feingold (Democrat, Wisconsin) 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. As of November 16, 2004, the USA PATRIOT Act has been used to charge 372 suspected terrorists and convict 194 of them.

Provisions

The USA PATRIOT Act mostly incorporates the provisions of the earlier anti-terrorism USA Act (H.R. 2975 and S. 1510). The House passed the USA Act on October 12, 2001. The Senate passed it on October 11, 2001. The primary differences between the USA Act and the USA PATRIOT Act are:

• The inclusion of the Financial Anti-Terrorism Act (H.R. 3004), which expands money laundering abatement to international terrorism.
• Immunity against prosecution for the providers of wiretaps in accordance with the Foreign Intelligence Surveillance Act of 1978.
• Request for a report on integrating automated fingerprint identification for ports of entry into the United States.
• Start of a foreign student monitoring program.
• Request for machine readable passports.
• Prevention of consulate shopping.
• Expansion of the Biological Weapons Statute.
• Clearer definition of "Electronic Surveillance"
• Miscellaneous benefits for victims of the September 11 attack and extra penalties for those who illegally file for such benefits.

Most issues considered to be unique to the USA PATRIOT Act are actually part of the USA Act. The USA Act is in itself mostly comprised of the Foreign Intelligence Surveillance Act of 1978. As such, it is commonly referred to as the "And Terrorism Too" act because it expands the definition of terrorism to include terrorist activities that are not backed by a foreign power.

Sneak-and-Peek searches

Much of the backlash against the USA PATRIOT Act has been directed at the provisions for Sneak-and-Peek searches. The detractors make a general claim that the government may search anyone's home or gain access to any of their library, finance, or work records without a warrant. This is a blantantly false statement.

A Sneak-and-Peek search does require a warrant. In special cases covered by FISA (incorporated in the USA PATRIOT Act), the warrant may come from the Foreign Intelligence Surveillance Court (FISC) instead of a common Federal or State Court. FISC warrants are not public record and therefore are not required to be released. Other warrants must be released, especially to the person under investigation.

A second complaint against Sneak-and-Peek searches is that the owner of the property (or person identified in business/library records) does not have to be told about the search. There is a special clause that allows the Director of the FBI to request phone records for a person without ever notifying the person. For all other searches, the person must be notified, but not necessarily before the search. The judge providing the warrant may allow a delay in notification when there is risk of:

• endangering the life or physical safety of an individual;
• flight from prosecution;
• destruction of or tampering with evidence;
• intimidation of potential witnesses; or
• otherwise seriously jeopardizing an investigation or unduly delaying a trial.

The delays are on average 7 days, but have been as long as 90 days. [1]

See also: Foreign Intelligence Surveillance Court

Challenges to limit the USA PATRIOT Act

U.S. Congress

On July 31, 2003, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR), introduced the "Protecting the Rights of Individuals Act" (S. 1552) [2]. 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.

On September 24, 2003, Congressman 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, 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 right of Attorney/Client Privilege and attempts to restore 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. [3]

American Civil Liberties Union

Main article: ACLU v. Ashcroft

On April 9, 2004 the ACLU filed a lawsuit challenging the national security letter (NSL)[4] provisions of the Electronic Communications Privacy Act, which allows the Director of the FBI (or a designee not below Deputy Assistant Directory of the FBI) to obtain customer records from phone and Internet companies in terrorism investigations. The ACLU successfully argued that phone companies and Internet Service Providers should be able to disclose receiving a subpoena from the Director of the FBI, and that doing so outweighs the Director's need for secrecy in counter-terrorism investigations. No part of the USA PATRIOT Act was impacted.

On August 30, 2004, the ACLU ran a $1.52 million ad campaign agaisnt the USA PATRIOT Act. The ad claimed, "So the government can search your house... My house... Our house... Without notifying us. Treating us all like suspects. It's part of the PATRIOT Act." Initial criticism of the ad pointed out that the phrase "without notifying us" implies that a person will never be notified of a search. There is a provision in the USA PATRIOT Act that allows for delayed notification of warrants in special cases.

Section 805 ruled vague

On January 23, 2004, U.S. District Judge Audrey Collins ruled that Section 805 (which classifies "expert advice or assistance" as material support to terrorism) was vague and in violation of the First and Fifth Amendments, marking the first legal decision to set a part of the Act aside. The lawsuit against the act was brought by the Humanitarian Law Project, representing five organizations and two U.S. citizens who wanted to provide expert advice to Kurdish refugees in Turkey. Groups providing aid to these organizations had suspended their activities for fear of violating the USA PATRIOT Act, and they filed a lawsuit against the Departments of Justice and State to challenge the law, claiming the phrase "expert advice or assistance" was too vague. [5]

Collins granted the plaintiff's motion that "expert advice or assistance" is impermissibly vague, but denied a nationwide injunction against the provision. The plaintiffs were granted "enjoinment" from enforcement of the provision.

Section 505 ruled unconstitutional

On September 29, 2004, U.S. District Judge Victor Marrero struck down Section 505—which allowed the government to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight—was in violation of the First and Fourth Amendment. The court also found the broad gag provision in the law to be an "unconstitutional prior restraint" on free speech. [6]

Public opinion

According to The Gallup Organization, the public is wary but ignorant about the US PATRIOT Act. In January 2002, 47% Americans wanted their government to stop terrorism even if it reduced civil liberties. By November 2003 this number had dropped to 31%, indicating either increasing concern about expanding government powers or reduced fear of terrorism. From 2003 to 2004, nearly a quarter of people felt that the US PATRIOT Act went too far while most felt that it was either just right or did not go far enough. By 2005, the people polled were statistically divided half and half for and against the US PATRIOT Act.

At the same time, only half of the people polled claimed to now some of the provisions of the US PATRIOT Act. After the 2004 elections, the number of people claiming to know some of the provisions fell sharply.

Gallup Poll statistics from [7] and [8]:

Other polls indicate that 52% of Americans are concerned that their civil liberties are being infringed by the administration's war on terrorism. [9]

Alleged abuses under the USA PATRIOT Act

Allegedly outside the Act's scope

Critics of the law often believe that all provisions of the law were intended to focus solely on terrorism. This is not the case at all. The USA PATRIOT Act is an extension of the Foreign Intelligence Surveillance Act (FISA) from 1978, which is primarily, but not wholly, concerned with espionage and terrorism. The changes from FISA, to the USA Act and finally the USA PATRIOT Act are intended to increase the power of the government to fight terrorism, but not limit other provisions.

The misunderstanding about the origins and purpose of the USA PATRIOT Act cause critics and uninformed to believe it is a dishonest anti-terrorism bill that has overstepped its bounds. If it were true that the USA PATRIOT Act were created in whole in 2001 for the sole purpose of anti-terrorism, there would be a cause for argument.

Using the Act against money-laundering activities

In Las Vegas, police used the USA PATRIOT Act to subpoena two stockbrokers for evidence in a public official corruption case against a strip club owner (who ultimately pled guilty). The USA PATRIOT Act, Section 314 is a provision to investigate money-laundering activities. Accordingly, the federal investigators' actions did not exceed the authority of the Act. [10]

Using the Act against computer fraud

Adam McGaughey, the webmaster of a fan site for the television show Stargate SG-1, was charged with copyright infringement and computer fraud. During the investigation, the FBI invoked a provision of the Act to obtain records from the site's Internet Service Provider. [11] The USA PATRIOT Act amended the Computer Fraud and Abuse Act to include search and seizure of records from Internet Service Providers.

Continued misunderstandings of the USA PATRIOT Act

In September 2003, the New York Times reported on a case of the US PATRIOT Act being used to investigate drug trafficers. In the article is mention of a study by Congress that referenced hundreds of cases where the USA PATRIOT Act was used to investigate non-terrorist crimes.[12] The USA PATRIOT Act is not limited to "terrorist crimes."

Wrongfully accused under the Act

In May 2004, Professor Steve Kurtz of the University of Buffalo reported his wife's death of cardiac arrest. The associate art professor, who was working on a project designed to warn the public about the dangers of biotechnology, was using bacterial cultures and biological equipment in his work. Police arriving at the scene found the equipment suspicious and notified the FBI Joint Terrorism Task Force. The FBI cordoned off the block surrounding his house and impounded computers, manuscripts, books, and equipment for further analysis; the Buffalo Health Department temporarily condemned the house as a health risk while the cultures were analyzed. Kurtz was charged with violations under the Section 175 of the US Biological Weapons Anti-Terrorism Act—a law which was expanded by the USA PATRIOT Act. A grand jury rejected these charges, but he is still charged with mail and wire fraud. [13] [14]

FBI agents used a USA PATRIOT Act "sneak and peak" search to secretly examine the home of Brandon Mayfield, who was wrongfully jailed for two weeks on suspicion of involvement in the Madrid train bombings. Agents seized three hard drives, 10 DNA samples preserved on cotton swabs and took 335 photos of personal items. Mayfield has filed a lawsuit against the U.S. government, contending that his rights were violated by his arrest and by the investigation against him. He also contends the Patriot Act is unconstitutional. [15]

Distasteful prosecutions

The FBI ordered a handful of journalists that had written about computer hacker Adrian Lamo to turn over their notes and other information under the auspices of the PATRIOT Act.[16] Supporters of the PATRIOT Act reply that journalists—like all other citizens—are not privileged from being subjected to subpoenas when they possess information relevant to a criminal investigation.

The ACLU filed a countersuit on April 6, 2004 claiming that a section of the USA PATRIOT ACT was unconstitutional because it allowed the FBI to demand financial records and other documents from small businesses without a warrant or judicial approvial. The specific action in question was the request of the FBI for the account information for users of an Internet service provider.

Citing possible secrecy provisions of the USA PATRIOT Act, the Department of Justice barred the ACLU from releasing the text of a countersuit for three weeks. [17] After judicial and congressional oversight, sections of the countersuit that did not violate secrecy rules of the USA PATRIOT ACT were released.

Other cases

In April 2003, Sami Omar Al-Hussayen was arrested on charges of supporting terrorism by maintaining several web sites that supported violent activities. [18] This crime was created by a 1996 act signed by President Clinton, but was further expanded under the USA PATRIOT Act. Supporters of the Act respond that prosecutors did not try Mr. Al-Hussayen because of his association with the website, but because he actively participated in raising money for terrorist organizations, recruiting terrorists, and disseminating inflammatory rhetoric via his website. Prosecutors said the sites included religious edicts justifying suicide bombings and an invitation to contribute financially to the militant Palestinian organization Hamas.

On the other hand, sometimes critics of the law mistake unrelated prosecution as being under the USA PATRIOT Act. Sherman Austin, anarchist and webmaster of Raise the Fist, plead guilty to violating 18 U.S.C. 842(p), a 1997 statute authored by California Democratic Senator Dianne Feinstein which prohibits the distribution of bombmaking information knowing or intending that the information will be used in a violent federal crime. Despite claims to the contrary, the USA PATRIOT Act was not invoked in this case.

Expiration and possible renewal of the USA PATRIOT Act

Sunset provision

Under PAT §224, several of the surveillance portions (200 level sections) of the PATRIOT Act will expire on December 31, 2005.

It is important to note that this sunset provision excludes investigations that began before the expiration date. Those investigations may continue with the original PATRIOT Act's full powers.

Provisions that will expire

• §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. (Lowers standard of evidence for FISA warrants.)
• §220. Nationwide Service Of Search Warrants For Electronic Evidence.
• §223. Civil Liability For Certain Unauthorized Disclosures.
• §224. Sunset. (self-cancelling)
• §225. Immunity For Compliance With Fisa Wiretap.

Permanent/non-expiring provisions

• §203(a);

INSERT INTO cur VALUES (c). Authority To Share Criminal Investigative Information.

• §205. Employment of Translators by the Federal Bureau of Investigation.
• §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.
• §221. Trade Sanctions.
• §222. Assistance To Law Enforcement Agencies.

Historical similarities to other laws

• Antiterrorism and Effective Death Penalty Act of 1996 passed in 1996

AEDPA is similar to the USA PATRIOT Act in that it was passed quickly following the terrorist attack on the Oklahoma City Federal Building. Apart from that, the AEDPA is concerned with application of the death penalty and limitations on appeals in the death penalty process. Neither of those issues are part of the USA PATRIOT Act.

• Reichstag Fire Decree, Germany, enacted February 28, 1933 after the Reichstag fire

The Reichstag Fire Decree is often used as an example of similarities to the USA PATRIOT Act. The similarities are that the Reichstag Fire Decree was passed after an act of terrorism, the decree was passed quickly, and the decree limited civil liberties with the expressed purpose of protecting the people of Germany.

However, the Reichstag Fire Decree went far beyond the USA PATRIOT Act. The USA PATRIOT Act does not remove all civil liberties of all citizens. It does not seize states rights. It does not introduce the death penalty for crimes against the government. It does have a date of expiration (the Reichstag Fire Decree is in effect until further notice).

Regardless of the differences, the Reichstag Fire Decree is an extremely popular example used by detractors of the USA PATRIOT Act because it led to the empowerment of Nazi Germany. This image fits very well with the anti-Bush commercials during the 2004 election that portrayed George Bush as a second Hitler, whether or not this is accurate.

See also

• US governmental response to the September 11 attacks
• Homeland security
• Domestic Security Enhancement Act of 2003, also known as PATRIOT II.
• ACLU v. Ashcroft – the court opinion mentions PATRIOT Act three times but provisions of the PATRIOT Act were not adjudicated. [19]
• Summary of Sec. 411 of the USA PATRIOT Act
• Benjamin Franklin True Patriot Act
• Red Squad

External links and references

Governmental

• H.R. 3162, full text
• H.R. 3162, Bill Summary and Status
• H.R. 3162 Vote Summary (Senate)
• Department of Justice's "The USA PATRIOT Act: Preserving Life and Liberty"

Other

• The Patriot Act under Fire, by John Yoo, Eric Posner, December 23, 2003
• The Patriot Act and Related Provisions: The Heritage Foundation's Research
• 4 State Governments and over 350 Local Governments Pass Resolutions Denouncing The USA Patriot Act
• Video: Howard Dean and Governor Bill Owens (R-CO), debate the USA PATRIOT Act, August 9, 2004 (Real Player required)
• Should you be scared of the Patriot Act? — analysis by Dahlia Lithwic, Slate
• Electronic Frontier Foundation analysis
• The Bill of Rights Defense Committee – the leading resource for community-level initiatives opposing the PATRIOT Act.
• Alert: USA PATRIOT Act, American Library Association Office for Intellectual Freedom
• Statement Of U.S. Senator Russ Feingold On The Anti-Terrorism Bill, October 25, 2001
• Patriot Raid, by Jason Halperin, AlterNet, April 29, 2003 — account of raid and detention under auspices of USA PATRIOT Act
• List of communities which passed resolutions criticizing the act
• Text of Protecting the Rights of Individuals Act 2003 Senate bill to limit USA PATRIOT Act (note: this bill has not been passed).
• Map of cities, towns, counties, and states which have passed resolutions against the USA PATRIOT act
• Thousands dead, millions deprived of civil liberties?, by Richard Stallman
• Article warning of dangers posed by the Bush Administration's latent "PATRIOT II" draft legislation.
• Electronic Frontier Foundation's Detailed Analysis of the PATRIOT Act
• American Library Association's Resolution on the PATRIOT Act [20]
• More on Wikipedia and its PATRIOT

Act overview; Volokh Conspiracy, Orin Kerr

• A video about Patriot Act
• A Brief Analysis of the Domestic Security Enhancement Act 2003 Also Known as USA Patriot Act II

Note

The USA PATRIOT Act is commonly referred to by its acronym, as the USA PATRIOT Act, or as the PATRIOT Act or even the Patriot Act; although most Americans know that it is an acronym (even if they do not know the expanded version), that fact is not as well known outside the United States.