The USA PATRIOT Act or “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” was signed into law without legislative committee debate on October 26, 2001. Despite the fact that Senator Russ Feingold was the only senator to vote against the bill, it was the subject of much public debate from the outset, and there continues to be little agreement about its implications for law enforcement and civil liberties in the United States.
The voluminous bill is little understood, and some of its most radical aspects were ruled unconstitutional by the courts. However, the bill expands the powers of investigation first brought about through the Federal Intelligence Surveillance Act of 1978 (FISA) and Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), along with providing significant financial and institutional support to law enforcement for intelligence-gathering efforts. The better-known aspects of the bill are those that permit third-party searches of personal data such as financial or travel history and library use without notification to the subject under investigation; allowance for “sneak and peak” searches with significant delays in notification to the subject; and the dismantling of Watergate-era firewalls between law enforcement and intelligence gathering. Finally, the bill might be most dangerous to immigrants, who can be detained—based on suspicion alone of association with a terrorist organization for an indeterminate amount of time—or deported altogether.
The most troubling aspect of the bill, however, may be the lack of public information about how and why the various aspects of the law were enacted and the nonpublic manner in which the powers created under the bill may be exercised. Despite widespread public concern and several ongoing court challenges, the USA PATRIOT Act was subject to an “Enhancement” Act in 2003 and was renewed, without major revisions, in 2005.
The most well-known section of the act is Section 215, which allows the Department of Justice to access third-party records. This includes that party’s travel history, financial records, and even library use. Section 215 significantly expanded the original provision of FISA confining the search to investigating foreign intelligence; now it includes any investigation that involves terrorism. Furthermore, the Federal Bureau of Investigation (FBI) need only certify to a FISA judge this aspect of the investigation without demonstrating probable cause, and the FISA court cannot refuse the search. Originally, this section of the act did not allow libraries or banks to protest the search or notify the subject about the search request. The most vocal opponent of this section was the American Library Association, who filed suit and made a successful public education campaign against the original provision. A modification of this prohibition in 2005 enabled the third party to get legal representation. The renewed USA PATRIOT Act also mandated that the director of the FBI or the deputy director or assistant director for National Security must personally call for the search, thereby limiting the powers to persons more easily held accountable for their actions.
Sections 216 and 505 also relate to intelligence gathering on private citizens. Section 216 formalizes federal tracking of Internet activities and treats Internet activity similarly to that of phone records. The act does distinguish between movement on the Internet and content of communication and calls only for the tracking of contacts, though civil liberties activists are concerned that “content” is not defined and thus it is unclear what aspect of e-mail communications will be tracked. Section 505 authorizes the attorney general to send out “National Security” letters, which compel record holders to provide information, but these are not legal warrants nor are they overseen by any court. Furthermore, Section 505 is a significant shift from FISA in that it allows these warrantless searches to be used, at a future date, as criminal evidence. In January 2007, The New York Times revealed that the Pentagon and the Central Intelligence Agency (CIA) were also using National Security letters, claiming that they fell under the provisions of the USA PATRIOT Act.
Two sections of the USA PATRIOT Act, Sections 218 and 213, change the rules for search and seizure (guaranteed by the Fourth Amendment). Section 218 allows for a secret FISA court to authorize searches—based solely on assurances from the attorney general that such searches have to do with foreign intelligence—without public notification. Section 213 allows for searches with delayed (sometimes indefinitely) notification of the subject. It also expedites intelligence sharing between the FBI and CIA and the Department of Justice, dismantling many of the former protocols for the sharing or dissemination of warrantless searches. Section 213 has to do with “sneak and peek” searches that permit the search of private property without the notification of the subject if “immediate notification of the execution of the warrant may have an adverse result.” Once again, the vagaries in the act’s definitions permit wide latitude in the exercise of the powers created therein and, as a result, may result in the infringement of civil liberties.
The USA PATRIOT Act also raises significant concerns for immigrants and immigration organizations. The act allows for the detention and deportation of immigrants for “terrorist activity,” which, according to some experts, can include legal aid (such as monetary donations) toward organizations not necessarily on a CIA list of terrorist organizations. In order to avoid deportation, immigrants must prove that they have no connections to the “terrorist,” something that is often difficult while under detention.
Strong reactions to the USA PATRIOT Act have occurred at the public, court, and legislative levels. According to a University of Connecticut poll in 2005, of those Americans who could correctly identify the purpose of the act, 57 percent supported renewing it. Many organizations, such as the American Civil Liberties Union and the American Library Association, maintain ongoing public education campaigns against the bill. Both organizations also brought lawsuits against the bill. Numerous lawsuits have been filed against the act, including a Freedom of Information Act suit brought by the Electronic Privacy Information Center, in which a federal court ordered the FBI to turn over 1,500 pages of documentation on the use of USA PATRIOT Act provisions. Another lawsuit, brought by the Muslim Community Association of Ann Arbor, Michigan, against Attorney General John Ashcroft and FBI Director Robert Mueller, claimed that Section 215 of the PATRIOT Act was unconstitutional. In both 2003 and 2005, the Democratic Party in Congress attempted to amend the bill. The 2004 presidential campaign also involved some debate about whether the act should be renewed in 2005. However, the bill was expanded in 2003 and renewed by both houses of Congress, with some revisions, in 2005 and signed into law in March 2006.
- Cole, Robert and James X. Dempsey. 2006. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. Rev. and updated ed. New York: New Press.
- Lichtblau, Eric and Mark Mazzetti. 2007. “Military Is Expanding Its Intelligence Role in U.S.” New York Times, January 14. Retrieved March 25, 2017 (http://www.nytimes.com/2007/01/14/washington/14spy.html).
- Lithwack, Dahlia and Julia Turner. 2003.”A Guide to the PATRIOT Act: Should You Be Scared of the PATRIOT Act?” Slate.com, September 8. Retrieved March 25, 2017 (http://www.slate.com/articles/news_and_politics/jurisprudence/2003/09/a_guide_to_the_patriot_act_part_1.html).
- Schulhofer, Stephen J. 2005. Rethinking the PATRIOT Act: Ideas for Reform. Century Foundation Report. New York: Century Foundation Press.
- USA PATRIOT Act. (https://www.justice.gov/archive/ll/highlights.htm).
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