USA PATRIOT Act
Encyclopedia
The USA PATRIOT Act is an Act of the U.S. Congress
that was signed into law by President George W. Bush
on October 26, 2001. The title of the act is a ten letter acronym (USA PATRIOT) that stands for Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001.
The act, a response to the terrorist attacks of September 11th, dramatically reduced restrictions on law enforcement agencies' ability to search telephone, e-mail communications, medical, financial, and other records; eased restrictions on foreign intelligence gathering within the United States; expanded the Secretary of the Treasury’s
authority to regulate financial transactions, particularly those involving foreign individuals and entities; and broadened the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.
On May 26, 2011, President Barack Obama
signed a four-year extension of three key provisions in the USA PATRIOT Act: roving wiretap
s, 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.
by 357 to 66 (of 435) and in the Senate
by 98 to 1 and was supported by members of both the Republican and Democratic parties.
Opponents of the law have criticized its authorization of indefinite detention
s of immigrants; searches through which law enforcement officers search a home or business without the owner’s or the occupant’s permission 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 4 years after its passage. In the months preceding the sunset date, supporters of the act pushed to make its sunsetting 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 sections of the act, while the House reauthorization bill kept most of the act's original language. The two bills were then reconciled in a conference committee that was 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 into law by President George W. Bush on March 9 and 10, 2006.
. Key acts changed were the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1986
(ECPA), the Money Laundering Control Act of 1986
and Bank Secrecy Act
(BSA), as well as the Immigration and Nationality Act. The Act itself came about after the September 11th attacks on New York City and the Pentagon. After these attacks, Congress immediately started work on several proposed antiterrorist bills, before the Justice Department finally drafted a bill called the Anti-Terrorism Act of 2001. This was introduced to the House as the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001, and was later passed by the House as the Uniting and Strengthening America (USA) Act (H.R. 2975) on October 12. It was then introduced into the Senate as the USA Act (S. 1510) where a number of amendments were proposed by Senator Russ Feingold
,
all of which were passed. The final bill, the USA PATRIOT Act was introduced into the House on October 23 and incorporated H.R. 2975, S. 1510 and many of the provisions of H.R. 3004 (the Financial Anti-Terrorism Act).
It was vehemently opposed by only one Senator, Russ Feingold
, who was the only Senator to vote against the bill. Senator Patrick Leahy
also expressed some concerns.
However, many parts were seen as necessary by both detractors and supporters.
The final Act included a number of sunsets which were to expire on December 15, 2005.
Due to its controversial nature, a number of bills were proposed to amend the USA PATRIOT Act. These included the Protecting the Rights of Individuals Act,
the Benjamin Franklin True Patriot Act
, and the Security and Freedom Ensured Act
(SAFE), none of which passed. In late January 2003, the founder of the Center for Public Integrity
, Charles Lewis, published a leaked draft copy of an Administration proposal titled the Domestic Security Enhancement Act of 2003
.
This highly controversial document was quickly dubbed "PATRIOT II" or "Son of PATRIOT" by the media and organizations such as the Electronic Frontier Foundation
.
The draft, which was circulated to 10 divisions of the Department of Justice, proposed to make further extensive modifications to extend the USA PATRIOT Act.
It was widely condemned, although the Department of Justice claimed that it was only a draft and contained no further proposals.
. 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.
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 network
s
— 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 register
s and trap and trace devices (chapter 206) and stored communications (121), though it excluded the disclosure of cable subscriber viewing habits.
Subpoena
s 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 address
es), 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 wiretap
s 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 (32.2 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 provision
s 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.
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, such as the Hans Vierck case of 2001.
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 owner
s of bank accounts and those who are authorized to use or route funds through payable-through account
s.
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 bank
s 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 bank
s 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. Bank 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 account
s 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 $US
10,000 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 report
s 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 system
s 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 order
s 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 , which deals with fraud and related activity in connection with access devices.
(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, cross-platform electronic system used for conducting background check
s, 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 weapon
s), 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 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 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.
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 Letter
s (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 to not 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 favour 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 meaningful judicial review of these gags.
, 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 test
ing 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.
to include terrorism as a criminal activity.
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."
This was struck down as unconstitutional by a U.S. Federal Court after the Humanitarian Law Project
filed a civil action against the U.S. government. The court found that it violated the First and Fifth Amendments to the United States Constitution and the provision was so vague it would cause a person of average intelligence to have to guess whether they were breaking the law, thus leading to a potential situation where a person was charged for an offense that they had no way of knowing was illegal. The court found that this could potentially have the effect of allowing arbitrary and discriminatory enforcement of the law, as well as possible chilling effects on First Amendment rights.
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.
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.
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 with 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 airline
s 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 imprisonment to five years imprisonment for those committing fraud by impersonating a Red Cross
member.
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.
President Barack Obama
, on Saturday, February 27, 2010, signed into law legislation that would temporarily extend for one year, three controversial provisions of the Patriot Act that had been set to expire:
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 set to expire on February 28, 2011.
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, counterterrorism, 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."
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 and the law outlawing attacks on mass transportation systems into a new section of Title 18 of the U.S. Code 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.
Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks, believing there to 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 Russell 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 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 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 peoples' 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 believe 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. They succeeded, and a Federal Court found that the law was vague enough to cause a reasonable person to guess whether they were breaking the law or not. Thus they found it violated the First Amendment
rights of U.S. citizens, and struck it down.
Perhaps one of the biggest controversies involved the use of 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.
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 amongst 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, despite protestations to the contrary, 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, received a National Security Letter (NSL) from the FBI, along with its accompanying perpetual gag order, demanding library patrons’ records. George Christian, executive director of Library Connection, and three members of the executive committee of the board engaged the ACLU to file suit to challenge the constitutional validity of the NSL. Because Section 505 of the USA PATRIOT Act, which authorizes the FBI to demand records without prior court approval, also forbids, or gags, anyone who receives an
NSL from telling anyone else about receiving it, they also challenged the validity of the gag order.
For almost a year the ACLU fought to lift the gag order, challenging the government’s power under Section 505 to silence four citizens who wished to contribute to public debate on the PATRIOT Act. In May 2006, the government finally gave up its legal battle to maintain the gag order. On June 26, 2006, the ACLU announced that, after dropping its defense of the gag provision accompanying the NSL request, the FBI abandoned the lawsuit entirely.
The Connecticut Four were honored by the ALA with the 2007 Paul Howard Award for Courage for their challenge to the National Security Letter and gag order provision
of the USA PATRIOT Act. The Connecticut Four are:
1. George Christian, executive director of Library Connection
2. Peter Chase, vice president of Library Connection, director of the Plainville
(CT) Public Library, and chairman of the Connecticut Library Association’s Intellectual
Freedom Committee
3. Barbara Bailey, president of Library Connection and director of the Welles-
Turner Memorial Library in Glastonbury, Connecticut
4. Jan Nocek, secretary of Library Connection and director of the Portland (CT)
Library.
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 whom 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 (amongst 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."
2005 renewal
Supportive views
Act of Congress
An Act of Congress is a statute enacted by government with a legislature named "Congress," such as the United States Congress or the Congress of the Philippines....
that was signed into law by President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
on October 26, 2001. The title of the act is a ten letter acronym (USA PATRIOT) that stands for Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001.
The act, a response to the terrorist attacks of September 11th, dramatically reduced restrictions on law enforcement agencies' ability to search telephone, e-mail communications, medical, financial, and other records; eased restrictions on foreign intelligence gathering within the United States; expanded the Secretary of the Treasury’s
United States Secretary of the Treasury
The Secretary of the Treasury of the United States is the head of the United States Department of the Treasury, which is concerned with financial and monetary matters, and, until 2003, also with some issues of national security and defense. This position in the Federal Government of the United...
authority to regulate financial transactions, particularly those involving foreign individuals and entities; and broadened the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.
On May 26, 2011, President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
signed a four-year extension of three key provisions in the USA PATRIOT Act: roving wiretap
Roving wiretap
A roving wiretap is a wiretap specific to the United States that follows the surveillance target. For instance, if a target attempts to defeat surveillance by throwing away a phone and acquiring a new one, by moving, or by any other methods, another surveillance order would usually need to be...
s, 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.
Details
The Act was passed in the HouseUnited States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
by 357 to 66 (of 435) and in the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
by 98 to 1 and was supported by members of both the Republican and Democratic parties.
Opponents of the law have criticized its authorization of indefinite detention
Indefinite detention
Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency without a trial. It is a controversial practice on the part of any government or agency that is in violation of many national and international laws, including human rights laws...
s of immigrants; searches through which law enforcement officers search a home or business without the owner’s or the occupant’s permission or knowledge; the expanded use of National Security Letters, which allows the Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
(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
Sunset provision
In public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law...
beginning December 31, 2005, approximately 4 years after its passage. In the months preceding the sunset date, supporters of the act pushed to make its sunsetting 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 sections of the act, while the House reauthorization bill kept most of the act's original language. The two bills were then reconciled in a conference committee that was 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 into law by President George W. Bush on March 9 and 10, 2006.
Background
The PATRIOT Act has made a number of changes to U.S. lawLaw of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
. Key acts changed were the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1986
Electronic Communications Privacy Act
The Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...
(ECPA), the Money Laundering Control Act of 1986
Money Laundering Control Act
The Money Laundering Control Act of 1986 is a United States Act of Congress that made money laundering a Federal crime. It was passed in 1986. It consists of two sections, and . It for the first time in the United States criminalized money laundering...
and Bank Secrecy Act
Bank Secrecy Act
The Bank Secrecy Act of 1970 requires financial institutions in the United States to assist U.S. government agencies to detect and prevent money laundering...
(BSA), as well as the Immigration and Nationality Act. The Act itself came about after the September 11th attacks on New York City and the Pentagon. After these attacks, Congress immediately started work on several proposed antiterrorist bills, before the Justice Department finally drafted a bill called the Anti-Terrorism Act of 2001. This was introduced to the House as the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001, and was later passed by the House as the Uniting and Strengthening America (USA) Act (H.R. 2975) on October 12. It was then introduced into the Senate as the USA Act (S. 1510) where a number of amendments were proposed by Senator Russ Feingold
Russ Feingold
Russell Dana "Russ" Feingold is an American politician from the U.S. state of Wisconsin. He served as a Democratic party member of the U.S. Senate from 1993 to 2011. From 1983 to 1993, Feingold was a Wisconsin State Senator representing the 27th District.He is a recipient of the John F...
,
all of which were passed. The final bill, the USA PATRIOT Act was introduced into the House on October 23 and incorporated H.R. 2975, S. 1510 and many of the provisions of H.R. 3004 (the Financial Anti-Terrorism Act).
It was vehemently opposed by only one Senator, Russ Feingold
Russ Feingold
Russell Dana "Russ" Feingold is an American politician from the U.S. state of Wisconsin. He served as a Democratic party member of the U.S. Senate from 1993 to 2011. From 1983 to 1993, Feingold was a Wisconsin State Senator representing the 27th District.He is a recipient of the John F...
, who was the only Senator to vote against the bill. Senator Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
also expressed some concerns.
However, many parts were seen as necessary by both detractors and supporters.
The final Act included a number of sunsets which were to expire on December 15, 2005.
Due to its controversial nature, a number of bills were proposed to amend the USA PATRIOT Act. These included the Protecting the Rights of Individuals Act,
the Benjamin Franklin True Patriot Act
Benjamin Franklin True Patriot Act
The Benjamin Franklin True Patriot Act is a bill introduced in the United States House of Representatives intended to review the previously passed USA PATRIOT Act. The bill was referred to subcommittees where it languished without action taken before the end of the 108th United States Congress...
, and the Security and Freedom Ensured Act
Security and Freedom Ensured Act
The Security and Freedom Enhancement Act is legislation proposed by Senators Larry Craig , John E. Sununu and Richard Durbin which would add checks and balances to the USA PATRIOT Act...
(SAFE), none of which passed. In late January 2003, the founder of the Center for Public Integrity
Center for Public Integrity
The Center for Public Integrity is a nonprofit organization dedicated to producing original, responsible investigative journalism on issues of public concern. The Center is non-partisan and non-advocacy and committed to transparent and comprehensive reporting both in the United States and around...
, Charles Lewis, published a leaked draft copy of an Administration proposal titled the Domestic Security Enhancement Act of 2003
Domestic Security Enhancement Act of 2003
The Domestic Security Enhancement Act of 2003 was draft legislation written by United States Department of Justice during the George W. Bush administration, under the tenure of United States Attorney General John Ashcroft. The Center for Public Integrity obtained a copy of the draft marked...
.
This highly controversial document was quickly dubbed "PATRIOT II" or "Son of PATRIOT" by the media and organizations such as the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
.
The draft, which was circulated to 10 divisions of the Department of Justice, proposed to make further extensive modifications to extend the USA PATRIOT Act.
It was widely condemned, although the Department of Justice claimed that it was only a draft and contained no further proposals.
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 FBI's Technical Support Center. The military was authorized to provide assistance in some situations that involve weapons of mass destruction when so requested by the Attorney GeneralUnited States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
. The National Electronic Crime Task Force was expanded, along with the President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
'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
Tom Harkin
Thomas Richard "Tom" Harkin is the junior United States Senator from Iowa and a member of the Democratic Party. He previously served in the United States House of Representatives ....
(D
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
-IA
Iowa
Iowa is a state located in the Midwestern United States, an area often referred to as the "American Heartland". It derives its name from the Ioway people, one of the many American Indian tribes that occupied the state at the time of European exploration. Iowa was a part of the French colony of New...
) in an amendment to the Combatting Terrorism Act of 2001, though in a different form. It originally included "the prayer of Cardinal
Cardinal (Catholicism)
A cardinal is a senior ecclesiastical official, usually an ordained bishop, and ecclesiastical prince of the Catholic Church. They are collectively known as the College of Cardinals, which as a body elects a new pope. The duties of the cardinals include attending the meetings of the College and...
Theodore McCarrick, the Archbishop of Washington
Roman Catholic Archdiocese of Washington
The Roman Catholic Archdiocese of Washington is a particular church of the Roman Catholic Church in the United States. It comprises the District of Columbia and Calvert, Charles, Montgomery, Prince George's and Saint Mary's counties in the state of Maryland....
in a Mass
Mass (liturgy)
"Mass" is one of the names by which the sacrament of the Eucharist is called in the Roman Catholic Church: others are "Eucharist", the "Lord's Supper", the "Breaking of Bread", the "Eucharistic assembly ", the "memorial of the Lord's Passion and Resurrection", the "Holy Sacrifice", the "Holy and...
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.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
, and Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
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
Sikh
A Sikh is a follower of Sikhism. It primarily originated in the 15th century in the Punjab region of South Asia. The term "Sikh" has its origin in Sanskrit term शिष्य , meaning "disciple, student" or शिक्ष , meaning "instruction"...
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 network
Packet switched network
A packet-switched network is a digital communications network that groups all transmitted data, irrespective of content, type, or structure into suitably sized blocks, called packets...
s
— the Electronic Privacy Information Center
Electronic Privacy Information Center
Electronic Privacy Information Center is a public interest research group in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values in the information age...
(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
Cable television
Cable television is a system of providing television programs to consumers via radio frequency signals transmitted to televisions through coaxial cables or digital light pulses through fixed optical fibers located on the subscriber's property, much like the over-the-air method used in traditional...
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 register
Pen register
A pen register is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.The United States statutes...
s and trap and trace devices (chapter 206) and stored communications (121), though it excluded the disclosure of cable subscriber viewing habits.
Subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
s 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 address
IP address
An Internet Protocol address is a numerical label assigned to each device participating in a computer network that uses the Internet Protocol for communication. An IP address serves two principal functions: host or network interface identification and location addressing...
es), 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"
Sneak and peek warrant
A sneak and peek search warrant is a search warrant authorizing the law enforcement officers executing it to effect physical entry into private premises without the owner’s or the occupant’s permission or knowledge and to clandestinely search the premises; usually, such entry requires a...
warrants, roving wiretap
Roving wiretap
A roving wiretap is a wiretap specific to the United States that follows the surveillance target. For instance, if a target attempts to defeat surveillance by throwing away a phone and acquiring a new one, by moving, or by any other methods, another surveillance order would usually need to be...
s 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
Ann Aiken
Ann Louise Aiken is an American attorney and jurist in the state of Oregon. A native Oregonian, she has served as a state court judge of the Oregon circuit courts and worked in private legal practice...
on September 26, 2007 after a Portland
Portland, Oregon
Portland is a city located in the Pacific Northwest, near the confluence of the Willamette and Columbia rivers in the U.S. state of Oregon. As of the 2010 Census, it had a population of 583,776, making it the 29th most populous city in the United States...
attorney, Brandon Mayfield
Brandon Mayfield
Brandon Mayfield is an American attorney in Washington County, Oregon. He is best known for being erroneously linked to the 2004 Madrid train bombings. On May 6, 2004, the FBI arrested Mayfield as a material witness in connection with the Madrid attacks, and held him for over two weeks...
, 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
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
. 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
American Library Association
The American Library Association is a non-profit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with more than 62,000 members....
(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
Manhattan Institute
The Manhattan Institute for Policy Research is a conservative, market-oriented think tank established in New York City in 1978 by Antony Fisher and William J...
's Heather Mac Donald
Heather Mac Donald
Heather Lynn Mac Donald is an American political commentator and thinker notable for her advocacy of secular conservatism. She has advocated her positions on numerous subjects including crime prevention, immigration reform, academia, the art world, and politics. She is a prolific essayist...
, 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 (32.2 km) of the District of Columbia), trade sanctions against North Korea
North Korea
The Democratic People’s Republic of Korea , , is a country in East Asia, occupying the northern half of the Korean Peninsula. Its capital and largest city is Pyongyang. The Korean Demilitarized Zone serves as the buffer zone between North Korea and South Korea...
and Taliban-controlled Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
and the employment of translators
Translation
Translation is the communication of the meaning of a source-language text by means of an equivalent target-language text. Whereas interpreting undoubtedly antedates writing, translation began only after the appearance of written literature; there exist partial translations of the Sumerian Epic of...
by the FBI.
At the insistence of Republican Representative Richard Armey
Dick Armey
Richard Keith "Dick" Armey is a former U.S. Representative from Texas's and House Majority Leader . He was one of the engineers of the "Republican Revolution" of the 1990s, in which Republicans were elected to majorities of both houses of Congress for the first time in four decades. Armey was...
, the Act had a number of sunset provision
Sunset provision
In public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law...
s 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.
| Section | Section title |
|---|---|
| 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) | Authority to share electronic, wire and oral interception information |
| 204 | Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications |
| 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 the Foreign Intelligence Surveillance Act. |
| 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 |
| 225 | Immunity for compliance with FISA wiretap |
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 launderingMoney laundering
Money laundering is the process of disguising illegal sources of money so that it looks like it came from legal sources. The methods by which money may be laundered are varied and can range in sophistication. Many regulatory and governmental authorities quote estimates each year for the amount...
and the financing of terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
. 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, such as the Hans Vierck case of 2001.
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 owner
Beneficial owner
Beneficial owner is a legal term where specific property rights in equity belong to a person even though legal title of the property belongs to another person. Black's Law Dictionary...
s of bank accounts and those who are authorized to use or route funds through payable-through account
Payable-through account
A payable-through account is a demand deposit account through which banking agencies located in the United States extend cheque writing privileges to the customers of other institutions, often foreign banks....
s.
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
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
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 bank
Bank
A bank is a financial institution that serves as a financial intermediary. The term "bank" may refer to one of several related types of entities:...
s 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 bank
Shell bank
A shell bank is a financial term that describes a financial institution that does not have a physical presence in any country. In order to prevent money laundering Subtitle A of the USA PATRIOT Act specifically prohibits such institutions, with the exception of shell banks that are affiliate of a...
s 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
Correspondent account
A correspondent account is an account established by a large banking institution to receive deposits from, make payments on behalf of, or handle other financial transactions for smaller financial institutions....
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. Bank 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
Politician
A politician, political leader, or political figure is an individual who is involved in influencing public policy and decision making...
where there is reasonable suspicion of corruption
Political corruption
Political corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
.
Any deposits made from within the U.S. into foreign banks are now deemed to have been deposited into any interbank account
Interbank network
An interbank network, also known as an ATM consortium or ATM network, is a computer network that connects the ATMs of different banks and permits these ATMs to interact with the ATM cards of non-native banks....
the foreign bank may have in the U.S. Thus any restraining order
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
, seizure warrant or arrest warrant
Arrest warrant
An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....
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 account
Concentration account
A concentration account is a sole account used for the internal purposes of a financial institution to facilitate the processing and settlement of multiple or individual customer transactions within the institution, usually on the same day. Such accounts can lead to the concealment by financial...
s because such accounts do not provide an effective audit trail
Audit trail
Audit trail is a sequence of steps supported by proof documenting the real processing of a transaction flow through an organization, a process or a system.....
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
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
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
Computer crime
Computer crime, or cybercrime, refers to any crime that involves a computer and a network. The computer may have been used in the commission of a crime, or it may be the target. Netcrime refers to criminal exploitation of the Internet. Such crimes may threaten a nation’s security and financial health...
; and any felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
violation of the Foreign Agents Registration Act of 1938
Foreign Agents Registration Act
The Foreign Agents Registration Act is a United States law passed in 1938 requiring that agents representing the interests of foreign powers be properly identified to the American public. The act was passed in response to German propaganda in the lead-up to World War II...
.
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
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. 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
Wire transfer
Wire transfer or credit transfer is a method of electronic funds transfer from one person or institution to another. A wire transfer can be made from one bank account to another bank account or through a transfer of cash at a cash office...
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
Financial crimes
Financial crimes are crime against property, involving the unlawful conversion of the ownership of property to one's own personal use and benefit...
, 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 $US
United States dollar
The United States dollar , also referred to as the American dollar, is the official currency of the United States of America. It is divided into 100 smaller units called cents or pennies....
10,000 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 report
Suspicious activity report
In United States financial regulation, a suspicious activity report is a report made by a financial institution to the Financial Crimes Enforcement Network , an agency of the United States Department of the Treasury, regarding suspicious or potentially suspicious activity.The purpose of a...
s 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 system
Informal value transfer system
An informal value transfer system refers to any system, mechanism, or network of people that receives money for the purpose of making the funds or an equivalent value payable to a third party in another geographic location, whether or not in the same form...
s 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
Financial Crimes Enforcement Network
The Financial Crimes Enforcement Network is a bureau of the United States Department of the Treasury that collects and analyzes information about financial transactions in order to combat money laundering, terrorist financiers, and other financial crimes.As reflected in its name, the Financial...
was made a bureau
Government agency
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types...
of the United States Department of Treasury and the creation of a secure network
Computer network
A computer network, often simply referred to as a network, is a collection of hardware components and computers interconnected by communication channels that allow sharing of resources and information....
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 order
Geographic targeting order
A Geographic targeting order is an order issued by the United States Secretary of Treasury requiring any United States domestic financial institutions that exist within a geographic area to report on transactions any greater than a specified value. GTOs are defined in the Bank Secrecy Act in...
s 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
Somalia
Somalia , officially the Somali Republic and formerly known as the Somali Democratic Republic under Socialist rule, is a country located in the Horn of Africa. Since the outbreak of the Somali Civil War in 1991 there has been no central government control over most of the country's territory...
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
Extraterritorial jurisdiction
Extraterritorial jurisdiction is the legal ability of a government to exercise authority beyond its normal boundaries.Any authority can, of course, claim ETJ over any external territory they wish...
of the United States, and which would be an offense in the U.S., will be prosecuted under , 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 ServiceImmigration and Naturalization Service
The United States Immigration and Naturalization Service , now referred to as Legacy INS, ceased to exist under that name on March 1, 2003, when most of its functions were transferred from the Department of Justice to three new components within the newly created Department of Homeland Security, as...
(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
United States Border Patrol
The United States Border Patrol is a federal law enforcement agency within U.S. Customs and Border Protection , a component of the Department of Homeland Security . It is an agency in the Department of Homeland Security that enforces laws and regulations for the admission of foreign-born persons to...
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
United States Customs Service
Until March 2003, the United States Customs Service was an agency of the U.S. federal government that collected import tariffs and performed other selected border security duties.Before it was rolled into form part of the U.S...
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
National Crime Information Center
The National Crime Information Center is the United States' central database for tracking crime-related information. Since 1967, the NCIC has been maintained by the Federal Bureau of Investigation's Criminal Justice Information Services Division, and is interlinked with similar systems that each...
to determine whether visa
Visa (document)
A visa is a document showing that a person is authorized to enter the territory for which it was issued, subject to permission of an immigration official at the time of actual entry. The authorization may be a document, but more commonly it is a stamp endorsed in the applicant's passport...
applicants and applicants could be admitted to the U.S. The Department of State
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
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
National Institute of Standards and Technology
The National Institute of Standards and Technology , known between 1901 and 1988 as the National Bureau of Standards , is a measurement standards laboratory, otherwise known as a National Metrological Institute , which is a non-regulatory agency of the United States Department of Commerce...
(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, cross-platform electronic system used for conducting background check
Background check
A background check or background investigation is the process of looking up and compiling criminal records, commercial records and financial records of an individual....
s, 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
Enhanced Border Security and Visa Entry Reform Act of 2002
The Enhanced Border Security and Visa Entry Reform Act of 2002 is an Act of the United States that deals with immigration. It covers the funding of the Immigration and Naturalization Service , orders that all internal INS databases must be linked together and be fully interoperable with the...
.
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
Safe house
In the jargon of law enforcement and intelligence agencies, a safe house is a secure location, suitable for hiding witnesses, agents or other persons perceived as being in danger...
, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical
Chemical warfare
Chemical warfare involves using the toxic properties of chemical substances as weapons. This type of warfare is distinct from Nuclear warfare and Biological warfare, which together make up NBC, the military acronym for Nuclear, Biological, and Chemical...
, biological
Biological warfare
Biological warfare is the use of biological toxins or infectious agents such as bacteria, viruses, and fungi with intent to kill or incapacitate humans, animals or plants as an act of war...
, or radiological weapon
Radiological weapon
A radiological weapon or radiological dispersion device is any weapon that is designed to spread radioactive material with the intent to kill, and cause disruption upon a city or nation....
s), 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 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
Espionage
Espionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, lest the legitimate holder of the information change plans or take other countermeasures once it...
; 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
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of any action or decision relating to this section, including judicial review of the merits of a certification, can be held under habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
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
Circuit court
Circuit court is the name of court systems in several common law jurisdictions.-History:King Henry II instituted the custom of having judges ride around the countryside each year to hear appeals, rather than forcing everyone to bring their appeals to London...
of the United States Court of Appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
for the District of Columbia Circuit, or by any district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
otherwise having jurisdiction to entertain the application. The final order is subject to appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
to the United States Court of Appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
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
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of vastly changed the immigration laws of the United States.This act states that if an immigrant has been unlawfully present in the United States for 180 days but less than 365 days...
(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
United States Secretary of Education
The United States Secretary of Education is the head of the Department of Education. The Secretary is a member of the President's Cabinet, and 16th in line of United States presidential line of succession...
and the Secretary of State. US$36,800,000 was appropriated for the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
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 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
Consulate shopping
Consulate shopping is the practice of applying for visas at different consulate posts - or choosing a more "suitable" post in advance, in the hope of finding one that will be more sympathetic to the applicant and thus approve the visa, or in order to have one's application processed faster...
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 organizationand 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
United States Secret Service
The United States Secret Service is a United States federal law enforcement agency that is part of the United States Department of Homeland Security. The sworn members are divided among the Special Agents and the Uniformed Division. Until March 1, 2003, the Service was part of the United States...
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 Letter
National Security Letter
A National Security Letter is a form of administrative subpoena used by the United States Federal Bureau of Investigation and reportedly by other U.S. Government Agencies including the Central Intelligence Agency and the Department of Defense. They require no probable cause or judicial oversight...
s (NSLs). An NSL is a form of administrative subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
used by the FBI, and reportedly by other U.S. government agencies including the CIA and the Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
(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
Gag order
A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...
, 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 to not 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 favour 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 meaningful judicial review of these gags.
Title VI: Victims and families of victims of terrorism
Title VI made amendments to the Victims of Crime Act of 1984 (VOCA) in order to make changes to how the U.S. Victims of Crime Fund was managed and funded. Changes were made to VOCA to improve the speedy provision of aid to families of public safety officers by expedited payments to officers or the families of officers. Under the changes, payments must be made no later than 30 days after the officer is injured or killed in the line of duty. 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 ProgramsOffice of Justice Programs
The Office of Justice Programs is an agency of the United States Department of Justice that focuses on crime prevention through research and development, assistance to state and local law enforcement and criminal justice agencies through grants, and assistance to crime victims.The major bureaus...
, 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 test
Means test
A means test is a determination of whether an individual or family is eligible for help from the government.- Canada :In Canada means tests are used for student finance , and "welfare" . They are not generally used for primary education and secondary education which are tax-funded...
ing 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
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
, the United States Virgin Islands
United States Virgin Islands
The Virgin Islands of the United States are a group of islands in the Caribbean that are an insular area of the United States. The islands are geographically part of the Virgin Islands archipelago and are located in the Leeward Islands of the Lesser Antilles.The U.S...
, 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 1968Omnibus Crime Control and Safe Streets Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968 was legislation passed by the Congress of the United States that established the Law Enforcement Assistance Administration . Title III of the Act set rules for obtaining wiretap orders in the United States. It has been started shortly after...
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
Racket (crime)
A racket is an illegal business, usually run as part of organized crime. Engaging in a racket is called racketeering.Several forms of racket exist. The best-known is the protection racket, in which criminals demand money from businesses in exchange for the service of "protection" against crimes...
.
Terms relating to cyber-terrorism
Cyber-terrorism
Cyberterrorism is the use of Internet based attacks in terrorist activities, including acts of deliberate, large-scale disruption of computer networks, especially of personal computers attached to the Internet, by the means of tools such as computer viruses....
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
Public transport
Public transport is a shared passenger transportation service which is available for use by the general public, as distinct from modes such as taxicab, car pooling or hired buses which are not shared by strangers without private arrangement.Public transport modes include buses, trolleybuses, trams...
. 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
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
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
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
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
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
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."
This was struck down as unconstitutional by a U.S. Federal Court after the Humanitarian Law Project
Humanitarian Law Project
The Humanitarian Law Project is a U.S.-based non-profit organization organization, working to protect human rights and promote "the peaceful resolution of conflict by using established international human rights laws and humanitarian law."...
filed a civil action against the U.S. government. The court found that it violated the First and Fifth Amendments to the United States Constitution and the provision was so vague it would cause a person of average intelligence to have to guess whether they were breaking the law, thus leading to a potential situation where a person was charged for an offense that they had no way of knowing was illegal. The court found that this could potentially have the effect of allowing arbitrary and discriminatory enforcement of the law, as well as possible chilling effects on First Amendment rights.
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 1947National Security Act of 1947
The National Security Act of 1947 was signed by United States President Harry S. Truman on July 26, 1947, and realigned and reorganized the U.S. Armed Forces, foreign policy, and Intelligence Community apparatus in the aftermath of World War II...
to require the Director of Central Intelligence
Director of Central Intelligence
The Office of United States Director of Central Intelligence was the head of the United States Central Intelligence Agency, the principal intelligence advisor to the President and the National Security Council, and the coordinator of intelligence activities among and between the various United...
(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
National Virtual Translation Center
The National Virtual Translation Center is a United States government organization established in February, 2003 which provides "timely and accurate translations of foreign intelligence for all elements of the Intelligence Community."...
, 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
United States Senate Select Committee on Intelligence
The United States Senate Select Committee on Intelligence is dedicated to overseeing the United States Intelligence Community—the agencies and bureaus of the federal government of the United States who provide information and analysis for leaders of the executive and legislative branches. The...
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
Office of Foreign Assets Control
The Office of Foreign Assets Control is an agency of the United States Department of the Treasury under the auspices of the Under Secretary of the Treasury for Terrorism and Financial Intelligence. OFAC administers and enforces economic and trade sanctions based on U.S...
of the Department of the Treasury
United States Department of the Treasury
The Department of the Treasury is an executive department and the treasury of the United States federal government. It was established by an Act of Congress in 1789 to manage government revenue...
. 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 the any other section of the USA PATRIOT Act. HazmatDangerous goods
Dangerous goods are solids, liquids, or gases that can harm people, other living organisms, property, or the environment. They are often subject to chemical regulations. "HazMat teams" are personnel specially trained to handle dangerous goods...
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
United States Department of Justice Office of the Inspector General
The Office of the Inspector General for the Department of Justice is the Office of the Inspector General specific to the United States Department of Justice that is responsible for conducting nearly all of the investigations of DOJ employees and programs. The present Inspector General is Glenn A...
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 with responding to and preventing terrorism. US$5,000,000 was authorized to be provided to the Drug Enforcement Administration
Drug Enforcement Administration
The Drug Enforcement Administration is a federal law enforcement agency under the United States Department of Justice, tasked with combating drug smuggling and use within the United States...
(DEA) to train police in South
South Asia
South Asia, also known as Southern Asia, is the southern region of the Asian continent, which comprises the sub-Himalayan countries and, for some authorities , also includes the adjoining countries to the west and the east...
and East Asia
East Asia
East Asia or Eastern Asia is a subregion of Asia that can be defined in either geographical or cultural terms...
.
The Attorney General was directed to commission a study on the feasibility of using biometric
Biometrics
Biometrics As Jain & Ross point out, "the term biometric authentication is perhaps more appropriate than biometrics since the latter has been historically used in the field of statistics to refer to the analysis of biological data [36]" . consists of methods...
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 airline
Airline
An airline provides air transport services for traveling passengers and freight. Airlines lease or own their aircraft with which to supply these services and may form partnerships or alliances with other airlines for mutual benefit...
s 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
Telemarketing
Telemarketing is a method of direct marketing in which a salesperson solicits prospective customers to buy products or services, either over the phone or through a subsequent face to face or Web conferencing appointment scheduled during the call.Telemarketing can also include recorded sales pitches...
who call on behalf of charities
Charitable organization
A charitable organization is a type of non-profit organization . It differs from other types of NPOs in that it centers on philanthropic goals A charitable organization is a type of non-profit organization (NPO). It differs from other types of NPOs in that it centers on philanthropic goals A...
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 imprisonment to five years imprisonment for those committing fraud by impersonating a Red Cross
International Red Cross and Red Crescent Movement
The International Red Cross and Red Crescent Movement is an international humanitarian movement with approximately 97 million volunteers, members and staff worldwide which was founded to protect human life and health, to ensure respect for all human beings, and to prevent and alleviate human...
member.
Reauthorizations
The USA PATRIOT Act was reauthorized by two 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 penaltyCapital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
for terrorists, enhancing security at seaports, new measures to combat the financing of terrorism, new powers for the Secret Service
United States Secret Service
The United States Secret Service is a United States federal law enforcement agency that is part of the United States Department of Homeland Security. The sworn members are divided among the Special Agents and the Uniformed Division. Until March 1, 2003, the Service was part of the United States...
, anti-Methamphetamine
Methamphetamine
Methamphetamine is a psychostimulant of the phenethylamine and amphetamine class of psychoactive drugs...
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.
President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
, on Saturday, February 27, 2010, 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 set to expire on February 28, 2011.
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, counterterrorism, 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."
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
Narcoterrorism
Narcoterrorism is a term coined by former President Fernando Belaúnde Terry of Peru in 1983 when describing terrorist-type attacks against his nation's anti-narcotics police...
. Other provisions of the reauthorization act was to merge the law outlawing train wrecking and the law outlawing attacks on mass transportation systems into a new section of Title 18 of the U.S. Code and also to criminalize the act of planning a terrorist attack against a mass transport system. Forfeiture law
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
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
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
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.
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 there to 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
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
and Russell Feingold proposed amendments to modify the final revision.)
The sheer magnitude of the Act itself was noted by Michael Moore
Michael Moore
Michael Francis Moore is an American filmmaker, author, social critic and activist. He is the director and producer of Fahrenheit 9/11, which is the highest-grossing documentary of all time. His films Bowling for Columbine and Sicko also place in the top ten highest-grossing documentaries...
in his controversial film Fahrenheit 9/11
Fahrenheit 9/11
Fahrenheit 9/11 is a 2004 documentary film by American filmmaker and political commentator Michael Moore. The film takes a critical look at the presidency of George W. Bush, the War on Terror, and its coverage in the news media...
. In one of the scenes of the movie, he records Congressman Jim McDermott
Jim McDermott
James Adelbert "Jim" McDermott is the U.S. Representative for , serving since 1989. He is a member of the Democratic Party. The 7th District includes most of Seattle and Vashon Island, and portions of Shoreline, Lake Forest Park, Tukwila, SeaTac, and Burien.He serves on the House Ways and Means...
alleging that no Senator 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
Dahlia Lithwick
-External links:*...
and Julia Turne for Slate
Slate (magazine)
Slate is a US-based English language online current affairs and culture magazine created in 1996 by former New Republic editor Michael Kinsley, initially under the ownership of Microsoft as part of MSN. On 21 December 2004 it was purchased by the Washington Post Company...
asked, "How bad is PATRIOT, anyway?", they decided that it was "hard to tell" and stated:
The Electronic Privacy Information Center
Electronic Privacy Information Center
Electronic Privacy Information Center is a public interest research group in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values in the information age...
(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
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
held that the lower standard applied to wiretaps "gives the FBI
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
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
David D. Cole
David D. Cole is an American law professor at the Georgetown University Law Center. He has published in various legal fields including civil rights, criminal justice, constitutional law and law and literature...
of the Georgetown University Law Center
Georgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
, 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
Heritage Foundation
The Heritage Foundation is a conservative American think tank based in Washington, D.C. Heritage's stated mission is to "formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong...
, 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
Center for Democracy and Technology
The Center for Democracy & Technology is a Washington, D.C. based 501 non-profit public-interest group that works to promote an open, innovative and free Internet....
, believes that it unnecessarily overlooks the importance of notice under the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
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
Orin Kerr
Orin S. Kerr is a professor of law at the George Washington University Law School, legal representation for the MySpace "cyber bullying" pioneer Lori Drew and a leading scholar in the subjects of computer crime law and internet surveillance. In the fall of 2006, he visited as an associate professor...
, of the George Washington University
George Washington University
The George Washington University is a private, coeducational comprehensive university located in Washington, D.C. in the United States...
school of law, believes that the ECPA
Electronic Communications Privacy Act
The Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...
"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 peoples' 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
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
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
Heather Mac Donald
Heather Lynn Mac Donald is an American political commentator and thinker notable for her advocacy of secular conservatism. She has advocated her positions on numerous subjects including crime prevention, immigration reform, academia, the art world, and politics. She is a prolific essayist...
, a fellow at the Manhattan Institute
Manhattan Institute
The Manhattan Institute for Policy Research is a conservative, market-oriented think tank established in New York City in 1978 by Antony Fisher and William J...
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
Brandon Mayfield
Brandon Mayfield is an American attorney in Washington County, Oregon. He is best known for being erroneously linked to the 2004 Madrid train bombings. On May 6, 2004, the FBI arrested Mayfield as a material witness in connection with the Madrid attacks, and held him for over two weeks...
, 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
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
. 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
African National Congress
The African National Congress is South Africa's governing Africanist political party, supported by its tripartite alliance with the Congress of South African Trade Unions and the South African Communist Party , since the establishment of non-racial democracy in April 1994. It defines itself as a...
(ANC) as the EFF believe 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
Hamas
Hamas is the Palestinian Sunni Islamic or Islamist political party that governs the Gaza Strip. Hamas also has a military wing, the Izz ad-Din al-Qassam Brigades...
members how to care for civilian children orphaned in the conflict between Israelis and Palestinians, a lawyer being unable to teach IRA
Provisional Irish Republican Army
The Provisional Irish Republican Army is an Irish republican paramilitary organisation whose aim was to remove Northern Ireland from the United Kingdom and bring about a socialist republic within a united Ireland by force of arms and political persuasion...
members about international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, and peace workers being unable to offer training in effective peace negotiations or how to petition the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
regarding human rights abuses.
Another group, the Humanitarian Law Project
Humanitarian Law Project
The Humanitarian Law Project is a U.S.-based non-profit organization organization, working to protect human rights and promote "the peaceful resolution of conflict by using established international human rights laws and humanitarian law."...
, 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. They succeeded, and a Federal Court found that the law was vague enough to cause a reasonable person to guess whether they were breaking the law or not. Thus they found it violated the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
rights of U.S. citizens, and struck it down.
Perhaps one of the biggest controversies involved the use of NSLs
National Security Letter
A National Security Letter is a form of administrative subpoena used by the United States Federal Bureau of Investigation and reportedly by other U.S. Government Agencies including the Central Intelligence Agency and the Department of Defense. They require no probable cause or judicial oversight...
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.
In November 2005, BusinessWeek
BusinessWeek
Bloomberg Businessweek, commonly and formerly known as BusinessWeek, is a weekly business magazine published by Bloomberg L.P. It is currently headquartered in New York City.- History :...
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
Las Vegas metropolitan area
The Las Vegas Valley is the heart of the Las Vegas-Paradise, NV MSA also known as the Las Vegas–Paradise–Henderson MSA which includes all of Clark County, Nevada, and is a metropolitan area in the southern part of the U.S. state of Nevada. The Valley is defined by the Las Vegas Valley landform, a ...
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
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
who had been issued an NSL, for reasons unknown. In ACLU v. DoJ
American Civil Liberties Union v. Ashcroft (2004)
American Civil Liberties Union v. Ashcroft is a lawsuit filed on behalf of a formerly unknown ISP owner by the American Civil Liberties Union against the U.S. federal government....
, 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 amongst 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, despite protestations to the contrary, the American Library Association
American Library Association
The American Library Association is a non-profit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with more than 62,000 members....
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, received a National Security Letter (NSL) from the FBI, along with its accompanying perpetual gag order, demanding library patrons’ records. George Christian, executive director of Library Connection, and three members of the executive committee of the board engaged the ACLU to file suit to challenge the constitutional validity of the NSL. Because Section 505 of the USA PATRIOT Act, which authorizes the FBI to demand records without prior court approval, also forbids, or gags, anyone who receives an
NSL from telling anyone else about receiving it, they also challenged the validity of the gag order.
For almost a year the ACLU fought to lift the gag order, challenging the government’s power under Section 505 to silence four citizens who wished to contribute to public debate on the PATRIOT Act. In May 2006, the government finally gave up its legal battle to maintain the gag order. On June 26, 2006, the ACLU announced that, after dropping its defense of the gag provision accompanying the NSL request, the FBI abandoned the lawsuit entirely.
The Connecticut Four were honored by the ALA with the 2007 Paul Howard Award for Courage for their challenge to the National Security Letter and gag order provision
of the USA PATRIOT Act. The Connecticut Four are:
1. George Christian, executive director of Library Connection
2. Peter Chase, vice president of Library Connection, director of the Plainville
(CT) Public Library, and chairman of the Connecticut Library Association’s Intellectual
Freedom Committee
3. Barbara Bailey, president of Library Connection and director of the Welles-
Turner Memorial Library in Glastonbury, Connecticut
4. Jan Nocek, secretary of Library Connection and director of the Portland (CT)
Library.
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 whom the Attorney General believes may cause a terrorist act. Before the USA PATRIOT Act was passed, Anita Ramasastry
Anita Ramasastry
Anita Ramasastry is a law professor at the University of Washington School of Law in Seattle and a director of the Shidler Center for Law, Commerce & Technology. She is also a regular columnist for the online legal commentary Writ....
, an associate professor of law and a director of the Shidler Center for Law, Commerce, & Technology at the University of Washington School of Law
University of Washington School of Law
The University of Washington School of Law is the law school of the University of Washington, located on the northwest corner of the main campus in Seattle, Washington.The most recent 2012 U.S...
in Seattle, Washington
Seattle, Washington
Seattle is the county seat of King County, Washington. With 608,660 residents as of the 2010 Census, Seattle is the largest city in the Northwestern United States. The Seattle metropolitan area of about 3.4 million inhabitants is the 15th largest metropolitan area in the country...
, 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
University of California
The University of California is a public university system in the U.S. state of California. Under the California Master Plan for Higher Education, the University of California is a part of the state's three-tier public higher education system, which also includes the California State University...
passed a resolution condemning (amongst 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
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
(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
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
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."
See also
- Central Intelligence AgencyCentral Intelligence AgencyThe Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
- Civil Contingencies Act 2004Civil Contingencies Act 2004The Civil Contingencies Act 2004 is an Act of the Parliament of the United Kingdom that establishes a coherent framework for emergency planning and response ranging from local to national level...
- Combat Zones That SeeCombat Zones That SeeCombat Zones That See, or CTS, is a project of the United States Defense Advanced Research Projects Agency whose goal is to "track everything that moves" in a city by linking up a massive network of surveillance cameras to a centralized computer system...
- Data miningData miningData mining , a relatively young and interdisciplinary field of computer science is the process of discovering new patterns from large data sets involving methods at the intersection of artificial intelligence, machine learning, statistics and database systems...
- Domestic Security Enhancement Act of 2003Domestic Security Enhancement Act of 2003The Domestic Security Enhancement Act of 2003 was draft legislation written by United States Department of Justice during the George W. Bush administration, under the tenure of United States Attorney General John Ashcroft. The Center for Public Integrity obtained a copy of the draft marked...
- Federal Bureau of InvestigationFederal Bureau of InvestigationThe Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
- Foreign Terrorist Organizations
- Guardian (database)Guardian (database)The Guardian Threat Tracking System is a reporting system used by the FBI to track threats and other intelligence information. It was established to collect data on terrorist threats and suspicious incidents, at seaports and other locations, and to manage action on various threats and incidents...
- Information Awareness OfficeInformation Awareness OfficeThe Information Awareness Office was established by the Defense Advanced Research Projects Agency in January 2002 to bring together several DARPA projects focused on applying surveillance and information technology to track and monitor terrorists and other asymmetric threats to national security,...
- Ohio Patriot ActOhio Patriot ActThe Ohio Patriot Act, Ohio State Senate Bill Number 9 , is an act passed in the U.S. state of Ohio on 11 January, 2006. The act has many effects, many of which expand the powers of law enforcement in fighting terrorism. For instance, Section 2909.29 makes providing financial assistance to terrorist...
- United States Department of Homeland SecurityUnited States Department of Homeland SecurityThe United States Department of Homeland Security is a cabinet department of the United States federal government, created in response to the September 11 attacks, and with the primary responsibilities of protecting the territory of the United States and protectorates from and responding to...
Law review articles
- Chesney, Robert M.Robert M. ChesneyRobert M. Chesney is an American lawyer and Professor of law at The University of Texas School of Law.He is also a fellow at the Brookings Institute....
"The Sleeper Scenario: Terrorism Support Laws and the Demands of Prevention". Harvard Journal on LegislationHarvard Journal on LegislationThe Harvard Journal on Legislation is a journal of legal scholarship published by students at Harvard Law School.-Overview:The Harvard Journal on Legislation publishes articles analyzing legislation and the legislative process...
(2005). - Gouvin, Eric J. "Bringing Out the Big Guns: The USA PATRIOT Act, Money Laundering and the War on Terrorism". Baylor Law Review 55 (2003): 955.
- Kerr, Orin. "Digital Evidence and the New Criminal Procedure". Columbia Law ReviewColumbia Law ReviewThe Columbia Law Review is a law review edited and published by students at Columbia Law School. In addition to articles, the journal regularly publishes scholarly essays and student notes. It was founded in 1901 by Joseph E. Corrigan and John M. Woolsey, who served as the review's first...
(2005). - Mojuyé, Benjamin, "What Banks Need to Know About the PATRIOT Act", 124 Banking L.J. 258, 258 (2007).
- Slovove, Daniel J. "Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference". Fordham Law ReviewFordham Law ReviewThe Fordham Law Review is a student-run law journal associated with the Fordham University School of Law that covers a wide range of legal scholarship.- Overview :...
74 (2005). - Van Bergen, Jennifer. "In the Absence of Democracy: The Designation and Material Support Provisions of the Anti-Terrorism Laws". Cardozo Pub. [?] Law Policy & Ethics Journal 2 (2003): 107.
- Wong, Kam C. "Implementing the USA PATRIOT Act: A Case Study of the Student and Exchange Visitor Information System (SEVIS)". Brigham Young University Education and Law Journal 2 (2006).
- Wong, Kam C. "The making of the USA PATRIOT Act I: Legislative Process and Dynamics". International Journal of the Sociology of Law 34.3 (2006): 179–219.
- Wong, Kam C. "The making of the USA PATRIOT ACT II: Public Sentiments, Legislative Climate, Political Gamesmanship, Media Patriotism". International Journal of the Sociology of Law 34.2 (2006): 105–140.
- Wong, Kam C. "USA PATRIOT Act and a Policy of Alienation". Michigan Journal of Minority Rights 1 (2006): 1–44.
- Wong, Kam C. "USA PATRIOT Act: Some Unanswered Questions". International Journal of the Sociology of Law 43.1 (2006): 1–41.
- Lecours, Alain P. USA Patriot Act, Extraterritorial Effects of the USA Patriot Act - Privacy Rights of Non-American Citizens
Books
- Brasch, Walter. America's Unpatriotic Acts: The Federal Government's Violation of Constitutional and Civil Rights. Peter Lang Publishing , 2005. ISBN 0820476080 (A long list of civil rights abuse claims by the Bush Administration inside the United States and other countries.)
- Cole, Dave, and James X. Dempsey. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. 2nd ed. New York: W. W. Norton & Co., 2002. ISBN 1-56584-782-2. (Full discussion of prior legislative history of the Act, going back more than ten years.)
- Harvey, RobertRobert Harvey (literary theorist)Robert Harvey is a literary scholar and academic. He is Professor at the State University of New York at Stony Brook where he teaches comparative literature, literatures written in French, and theory...
and Hélène Volat. De l'exception à la règle. USA PATRIOT Act "DE L’EXCEPTION À LA RÈGLE : USA PATRIOT ACT" : Robert Harvey et Hélène Volat. Paris: Lignes, 2006. 215 p. - Mailman, Stanley, Jeralyn MerrittJeralyn MerrittJeralyn Elise Merritt is an American criminal defense attorney who practices in Denver, Colorado. In 1996 and 1997 she served as one of the principal trial lawyers for Timothy McVeigh in the Oklahoma City bombing case. In 2002 Merritt founded and is the principal author of the blog TalkLeft: The...
, Theresa M. B. Van Vliet, and Stephen Yale-Loehr. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001: An Analysis. Newark, NJ and San Francisco, CA: Matthew Bender & Co., Inc. (a member of the LexisNexisLexisNexisLexisNexis Group is a company providing computer-assisted legal research services. In 2006 it had the world's largest electronic database for legal and public-records related information...
Group), 2002. (Rel.1-3/02 Pub. 1271) ("An expert analysis of the significant changes in the new USA Patriot Act of 2001 [which]...track[s] the legislation by section, explaining both the changes and their potential impact with respect to: enhanced surveillance procedures;money laundering and financial crimes; protecting the border; investigation of terrorism; information sharing among federal and state authorities; enhanced criminal laws and penalties for terrorism offenses, and more.") - Michaels, C. William. No Greater Threat: America Since September 11 and the Rise of the National Security State. Algora Publishing, Completely Updated for 2005. ISBN 0-87586-155-5. (Covers all ten titles of the USA PATRIOT Act; Includes review and analysis of: Homeland Security Act, "PATRIOT Act II," Intelligence Reform and Terrorism Prevention Act, Supreme Court decisions, "National Strategy" documents, 9-11 Commission recommendations, and various ongoing developments nationally and internationally in the "war on terrorism.")
- Phelan, James ClancyJames Clancy PhelanJames Clancy Phelan is an Australian author, published as James Phelan. His first fiction novel, Fox Hunt, went into reprint in its first month.-Biography:Phelan was born in Victoria, Australia...
; PATRIOT ACT, Hachette, ISBN 978-073-362283-0; 2007. - Van Bergen, Jennifer. The Twilight of Democracy: The Bush Plan for America. Common Courage Press, 2004. ISBN 1-56751-292-5. (A constitutional analysis for the general public of the USA PATRIOT Act and other administrative measures, with the first half of the book spent on principles of democracy and constitutional law.)
- Wong, Kam C. "The Impact of USA Patriot Act on American Society: An Evidence Based Assessment" (N.Y.: Nova Press, 2007) (In print)
- Wong, Kam C. "The Making of USA Patriot Act: Legislation, Implementation, Impact" (Beijing: China Law Press, 2007) (In print)
Government sources
- "The USA PATRIOT Act: Preserving Life and Liberty" by the Department of Justice
- "The USA PATRIOT Act," the full text
2005 renewal
Supportive views
- The Patriot Act and Related Provisions: The Heritage Foundation's Research
- Patriot Hysteria — The Zacarias Moussaoui Protection Act, article by Rich Lowry, National ReviewNational ReviewNational Review is a biweekly magazine founded by the late author William F. Buckley, Jr., in 1955 and based in New York City. It describes itself as "America's most widely read and influential magazine and web site for conservative news, commentary, and opinion."Although the print version of the...
- The Patriot Act under Fire by law professors John Yoo and Eric Posner, December 23, 2003
- The Patriot Act, Reauthorized, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
Critical views
- PATRIOT Games: Terrorism Law and Executive Power, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
- American Library Association's Resolution on the PATRIOT Act
- "War on Terror" Human Rights Issues Amnesty International USA A six-part series analyzing the Act.
- Beware of the "Domestic Security Enhancement Act" by activist group ReclaimDemocracy.org
- Thousands dead, millions deprived of civil liberties?, by Richard StallmanRichard StallmanRichard Matthew Stallman , often shortened to rms,"'Richard Stallman' is just my mundane name; you can call me 'rms'"|last= Stallman|first= Richard|date= N.D.|work=Richard Stallman's homepage...
, September 17, 2001 - Sneak and Peek Search Warrants
- Analysis of the USA PATRIOT Act: PEN American CenterPEN American CenterPEN American Center , founded in 1922 and based in New York City, works to advance literature, to defend free expression, and to foster international literary fellowship. The Center has a membership of 3,300 writers, editors, and translators...
- League of Women Voters' Resources on the USA PATRIOT Act and Individual Liberties
- "The Chains of the Constitution and Legal Process in the Library: a Post-Patriot Reauthorization" by Susan Nevelow Mart, Hastings College of the LawUniversity of California, Hastings College of the LawUniversity of California, Hastings College of the Law is a public law school in San Francisco, California, located in the Civic Center neighborhood....
Other
- National Security and Freedom A series of short readings exploring historical and current issues of national security from Constitutional Rights Foundation.
- Patriot Act news and resources, JURISTJURISTJURIST is an online legal news service hosted by the University of Pittsburgh School of Law, powered by a staff of more than 40 law students working in Pittsburgh and other US locations under the direction of founding Publisher & Editor-in-Chief Professor Bernard Hibbitts, Research Director Jaclyn...
- Phillips, Heather A., "Libraries and National Security Law: An Examination of the USA Patriot Act". Progressive Librarian, Vol. 25, Summer 2005
- More on Wikipedia and its PATRIOT Act overview; Volokh Conspiracy, Orin Kerr
- PATRIOT Act at WikiaWikiaWikia is a free web hosting service for wikis . It is normally free of charge for readers and editors, deriving most of its income from advertising, and publishes all user-provided text under copyleft licenses. Wikia hosts several hundred thousand wikis using the open-source wiki software MediaWiki...