USA PATRIOT Act

   

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act, H.R. 3162, S. 1510, Public Law 107-56) is a United States legislative law, enacted in response to the September 11, 2001 Terrorist Attacks. The bill passed 98-1 in the United States Senate, and 356-66 in the United States House of Representatives; Senator Russ Feingold (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 PATRIOT Act has been used to charge 372 suspected terrorists and convict 194 of them.


Domestic vs foreign law enforcement and surveillance

Domestic Law Enforcement Foreign Intelligence Surveillance
1. Intercept Orders.

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

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

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

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

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

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

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

2. FISA Pen/Trap.

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

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

3. Physical search warrants

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

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

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

3. FISA Physical search warrants

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

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

4. Subpoenas for stored information.

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

4. FISA subpoenas

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

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

Public opinion

According to a September 9, 2003 CNN/USA Today/Gallup Poll, 75% of Americans are not worried about the USA PATRIOT Act violating their civil rights.[1] (http://www.gallup.com/poll/releases/pr030909.asp#rm) Just 22% say the legislation goes "too far," while about the same number, 21%, say "not far enough." A plurality, 48%, says the Act is "about right."

According to recent polls, 52% of Americans report being concerned that their civil liberties are being infringed by the Bush administration's war on terrorism. [2] (http://www.villagevoice.com/issues/0422/hentoff.php)

Challenges to limit the USA PATRIOT Act

United States Senate

On July 31, 2003, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR), introduced the "Protecting the Rights of Individuals Act" (S. 1552) [3] (http://www.fas.org/irp/congress/2003_cr/s1552.html). 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.

United States House of Representatives

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, warrantless library, medical, and financial record searches, and the detention and deportation of non-citizens without meaningful judicial review. Beyond the USA PATRIOT Act, the bill cements the fundamental right of Attorney/Client Privilege and restores transparency in the Department of Justice and Department of Homeland Security by revoking FOIA secrecy orders, along with other important provisions.

Bernie Sanders (I-VT) with Reps. Jerrold Nadler (D-NY), John Conyers Jr. (D-Mich.), C. L. Otter (R-Idaho), and Ron Paul (R-Texas) proposed an amendment to the Commerce, Justice, State Appropriations Bill of 2005 which would cut off funding to the Department of Justice for searches conducted under Section 215. The amendment failed to pass the House with a tie vote, 210–210. Although the original vote came down in favor of the amendment, the vote was held open and several House members were persuaded to change their votes. [4] (http://www.washingtonpost.com/wp-dyn/articles/A37480-2004Jul8.html)

American Civil Liberties Union

Main article: ACLU v. Ashcroft

On April 9, 2004 the ACLU filed a lawsuit challenging the national security letter (NSL)[5] (http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002709----000-.html) provisions of the Electronic Communications Privacy Act which allows the FBI to obtain customer records from phone and Internet companies in terrorism investigations. The ACLU successfully argued that phone companies and ISPs should be able to disclose receiving a subpoena from the FBI and it outweighs the FBI's need for secrecy in counter-terrorism investigations. No part of the Patriot Act was impacted.

Alleged abuses under the PATRIOT Act

  • In Las Vegas, police used the PATRIOT Act to subpoena two stockbrokers for evidence in a public official corruption case against a strip club owner (who ultimately pled guilty). Supporters of the PATRIOT Act point out that Section 314 of the Patriot Act states it can be applied to activities "that may involve terrorist acts OR money-laundering activities". Accordingly, the federal investigators' actions did not exceed the authority of the Patriot Act. [6] (http://yconservatives.com/Carmack-62.html)
  • 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. Supporters of the PATRIOT Act point out that journalists -- like all other citizens -- are not privileged from being subjected to subpoenas when they possess information relevant to a criminal investigation.[7] (http://www.theregister.co.uk/2003/09/29/fbi_bypasses_first_amendment/)
  • Beyond the above examples, in September 2003, the New York Times reported that a study by Congress showed hundreds of cases where the Patriot Act was used to investigate non-terrorist crimes. [8] (http://www.jointogether.org/sa/news/summaries/reader/0,1854,567051,00.html). Supporters of the PATRIOT Act point out that the Act is not limited to "terrorist crimes," and further that the New York Times report referred to above misconstrued the nature of many of the investigations conducted under the PATRIOT Act.
  • In April 2004, a Muslim Idaho man went on trial on charges of supporting terrorism by maintaining some web sites (among many he assisted) that supported violent activities. [9] (http://www.washingtonpost.com/wp-dyn/articles/A13072-2004Apr14.html) This type of "guilt by association" was resurrected by the 1996 "anti-terrorism" act signed by President Clinton, but was further expanded under the Patriot Act. Supporters of the PATRIOT Act point out 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.
  • In May 2004, the FBI cordoned off the entire block of a University of Buffalo associate art professor's house, impounding his computers, manuscripts, books, equipment for further analysis and The Buffalo Health Department temporarily condemned the house as a health risk after suspicious vials and bacterial cultures were discovered at his home. The professor, whose art involves the use of biology equipment as part of a project educating the public about the politics of biotechnology was charged with violations under the Section 175 of the US Biological Weapons Anti-Terrorism Act which was expanded by the USA Patriot Act. [10] (http://www.caedefensefund.org/) [11] (http://www.newfarm.org/news/0604/061104/bio_artist.shtml) Supporters of the PATRIOT Act point out that the investigation of Mr. Kurtz began after he called 911 to report that his 45-year-old wife had died overnight. At that point, police noticed a mobile DNA extraction laboratory and petri dishes containing E. coli bacteria in his home. Mr. Kurtz contended that the biological agents were being used in his latest art project, but police felt compelled to investigate further. Moreover, Mr. Kurtz was not charged with a violation of the PATRIOT Act or the Biological Weapons Anti-Terrorism Act.
  • The ACLU was prevented from releasing the text of its countersuit challenging aspects of the Patriot Act because the government claimed it would violate secrecy provisions of the act. [12] (http://www.washingtonpost.com/wp-dyn/articles/A51423-2004Apr28.html) Supporters of the PATRIOT Act point out that the ACLU's constitutional challenge was disclosed, and only the details of an ongoing federal investigation were redacted. Moreover, the secrecy provisions of the PATRIOT Act are subject to both judicial and congressional oversight.
  • The maintainer of a TV-show fan website was charged with copyright infringement after the MPAA directed the FBI to obtain records from the site's Internet service provider about the site under the USA PATRIOT Act [13] (http://www.sg1archive.com/nightmare.shtml) [14] (http://yro.slashdot.org/yro/04/07/27/129219.shtml?tid=153&tid=214&tid=129) Supporters of the PATRIOT Act point out that McGaughey was charged with copyright violations and computer fraud, and that the PATRIOT Act amended the Computer Fraud and Abuse Act. Accordingly, the use of the PATRIOT Act was entirely appropriate.
  • Sherman Austin, anarchist and webmaster of Raise the Fist, plead guilty to violating 18 U.S.C. 842(p)[15] (http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000842----000-.html), a 1997 "anti-terrorism" statute authored by California Democratic Senator Dianne Feinstein[16] (http://feinstein.senate.gov/03Releases/r-bombmaking3.htm) that prohibits the distribution of bombmaking information knowing or intending that the information will be used in a violent federal crime. Many wrongly assume this case was investigated or prosecuted using the PATRIOT Act.

Expiration and possible renewal of the USA PATRIOT Act

Sunset provisions

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

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.
  • §220. Nationwide Service Of Search Warrants For Electronic Evidence.
  • §223. Civil Liability For Certain Unauthorized Disclosures.

Permanent/non-expiring provisions

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

See also

Historical similarities to other laws

External links and references

Governmental

Other

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