The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (P.L. 107-56), known by the acronym USA PATRIOT Act, became effective on October 26, 2001. The formal title by Congress describes it as “an Act to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.”
The U.S. Department of Justice and Congress looked for ways to strengthen law enforcement powers in response to the terrorist attacks on the United States on September 11, 2001. The result was the PATRIOT Act, passed 98 to 1 in the Senate and 357 to 66 in the House of Representatives. The act amended a number of existing statutes and created new statutes to cover a wide variety of law enforcement initiatives. Government power was expanded, and some previously unregulated federal law enforcement practices were formalized and regulated.
The act covered a diverse range of issues, including new criminal statutes, government surveillance, investigations and information sharing, immigration law, money laundering and counterfeiting, increased funds for certain law enforcement activities, funds for training, funds for the study of critical infrastructure, the transportation of hazardous materials, financial assistance to victims of terrorist attacks, increased benefits for public safety workers, and other provisions. In addition, the act required the Department of Justice inspector general to receive complaints about civil liberties and civil rights abuses by the Department of Justice and report on those abuses to Congress. Other reports to Congress were also required, including the need for additional legislation, studies on how certain provisions of the act are working, and studies on new antiterrorism technology.
The PATRIOT Act has been controversial from inception because privacy advocates and civil libertarians were concerned that it infringes on fundamental liberties and gives too much unsupervised power to law enforcement agencies. Hundreds of communities, several major cities, and a few states have passed resolutions denouncing the act. A number of lawsuits have been filed against provisions of the act, with little effect. The Department of Justice responded with a series of initiatives to reassure concerned constituencies and the general public that the act was necessary to combat terrorism and did not violate civil liberties. This controversy was reflected in the fact that another act designed to further increase government powers, dubbed PATRIOT II, was not able to move through the legislative process. A number of provisions of the PATRIOT Act contained sunset clauses due to take effect in 2005. These sunset clauses would cause the subject provisions to expire. It is likely that efforts will continue to repeal the sunset provisions and broaden government antiterrorism powers.
The federal government’s rationale for the PATRIOT Act was that, in light of the terrorist attacks on the United States and the unique challenges of terrorism, many existing laws and legal restraints on law enforcement needed to be updated. In addition, new law and criminal penalties needed to be created where none existed. Existing law impaired law enforcement’s ability to gather, analyze, and share intelligence. In addition, the existing laws and law enforcement authority did not reflect the realities of new technologies such as computers, high-technology communication systems, and the Internet.
The act authorized law enforcement agencies to share terrorism-related intelligence with each other and with intelligence agencies. Previously prohibitions to share information or a “wall” existed between law enforcement officers and intelligence officers. FBI agents conducting intelligence investigations could not share information with FBI agents conducting criminal investigations, and vice versa. The FBI and CIA could not share certain terrorism-related information.
A number of criminal laws designed to thwart terrorists were part of the act. Laws were enacted or strengthened in the area of money laundering and against individuals who financed or aided terrorists. New laws against biological weapons and cyberterrorism were enacted and laws prohibiting attacks on mass transportation were added.
The advent of computers and advanced communications technology and the mobility of terrorists presented obstacles to government investigators. The PATRIOT Act was designed to overcome some of those obstacles. The act permitted investigators to gather some e-mail and Internet communications with subpoenas and search warrants, rather than the more difficult to obtain wiretap orders. Search warrants issued by a federal judge in one jurisdiction could be served anywhere in the country. Previously, a judge’s warrant was valid only in that court’s jurisdiction.
Cell phones and digital telephones presented law enforcement investigators with a number of problems that could not be addressed by existing statutes. Previously, wiretaps had been authorized only for a particular telephone number. The act enabled investigators to obtain a roving wiretap on any phone or computer the suspected terrorist used. In addition, these roving wiretaps were national, rather than restricted to the limited jurisdiction of a federal district judge.
The act increased the power and coverage of the Foreign Intelligence Surveillance Act (FISA). Enacted in 1978, FISA created a secret court with an exception to usual law enforcement searches. The Fourth Amendment’s probable cause requirement that probable cause to believe a criminal act had occurred to grant search warrants and wiretaps need not be adhered to in foreign intelligence cases. The act amended FISA to significantly broaden the scope of the circumstances under which these warrants and wiretaps could be authorized.
The act codified the use of delayed notification search warrants by law enforcement and expanded the circumstances of their use. Usually law enforcement officers notify the subject of an investigation that their property is being searched. Delayed notification search warrants are used when the investigators do not want the subject to know that they are being investigated. The subject of the search still must be notified of the search at a later date.
The act attempted to prepare federal, state, and local law enforcement to deal with the rapid escalation of computer crime and the terrorist use of high technology. Funds were authorized to train law enforcement investigators in computer crime and to establish a network of regional computer forensic laboratories (RCFLs) around the country. These RCFLs were joint federal, state, and local law enforcement task forces that recovered evidence from seized electronic devices.
All of the provisions of the act were an attempt to provide increased power to federal law enforcement agencies, and in some cases all of law enforcement, to prevent terrorism and to investigate and apprehend terrorists. It was recognition that the country was involved in a far-reaching struggle against a number of terrorist groups intent on doing significant destruction.
Provisions of the PATRIOT Act
The following overview highlights some of the major provisions of the PATRIOT Act.
It sought to enhance domestic security by allowing the U.S. attorney general to request military assistance to deal with weapons of mass destruction. It established a counterterrorism fund for the Department of Justice. It increased funding for the FBI technical center and provided funds for the U.S. Secret Service to develop a network of electronic crime task forces. The president was empowered to confiscate the property of an enemy involved in hostile action against the United States.
Surveillance authority for federal law enforcement agencies was significantly increased. Stored voice communications could be obtained through a search warrant rather than a wiretap order. Subpoena power for electronic evidence was widened. Communications providers were permitted to disclose customer records to law enforcement in an emergency. A uniform statutory standard for the courts to authorize the delayed notice of searches by law enforcement was created. The act clarified law enforcement authority to trace communications on computer networks and the Internet and gave trace orders by the federal courts nationwide scope. Victims of a computer attack could authorize law enforcement to monitor trespassers on their computer systems. A search warrant issued by a federal judge in a terrorism case, or for e-mail, could now be served anywhere in the country.
The act expanded money laundering laws. It increased certain powers of the secretary of the treasury and increased the regulation and reporting requirements of financial institutions. Securities brokers and dealers were required to submit suspicious activity reports. Civil and criminal penalties for money laundering were increased, and the crime of bulk cash smuggling was created. Criminal penalties for counterfeiting were increased and counterfeiting U.S. obligations or securities outside the United States was made a crime.
The act allowed the U.S. attorney general to detain aliens for up to seven days if there were reasonable grounds to believe that they were involved in terrorism or posed a threat to national security. The grounds were broadened for denying an alien admission to the United States based on terrorism. The definitions of terrorist activity and terrorist organization were broadened.
The act strengthened investigative authority and information sharing between law enforcement authorities. It mandated information sharing between the U.S. attorney general, the FBI, the State Department, and immigration authorities. Individuals convicted of terrorism crimes, violent crimes, and attempts or conspiracies to commit them were required to submit DNA samples. Federal officers investigating foreign intelligence cases could coordinate information with other federal law enforcement officers. The CIA and the FBI were required to improve information sharing between their agencies. They were also required to provide training regarding foreign intelligence information to federal, state, and local government officials. The U.S. attorney general could apply to the courts to obtain educational records to assist terrorism investigations. The attorney general and secretary of state were given increased authority to pay rewards for assistance in combating terrorism. The regional information sharing system to facilitate federal, state, and law enforcement responses to terrorist acts was expanded.
The act increased funding for the Border Patrol, Customs personnel, and Immigration and Naturalization Service inspectors along the northern border and provided funds for increased security technology. The federal benefit payment to public safety officers killed in the line of duty was increased. Also increased was funding for victim compensation and victim assistance programs.
The act established law prohibiting attacks against mass transportation systems. This included conventional attacks and weapons of mass destruction attacks against mass transportation systems and personnel. Mass transportation systems were defined as public transportation systems and school buses, charter, and sightseeing transportation.
The act created the new crime of harboring or concealing a terrorist. Material support for terrorism was also prohibited. The definition of material support or resources to aid terrorism was expanded to include funding and expert advice and assistance. The number of crimes covered by this section was also expanded. The act also removed the statute of limitations on prosecuting federal terrorism crimes if the crime resulted in or created a risk of death or serious bodily injury.
The act established penalties for damaging federal computer systems. The U.S. attorney general was required to establish regional computer forensic laboratories and support existing ones.
The act made subject to civil forfeiture all foreign and domestic assets of persons or organizations involved in terrorism. It increase criminal penalties for a variety of crimes involving terrorism and made penalties for conspiracy to commit a variety of crimes the same as for committing the crimes. Domestic terrorism was defined, and several new crimes were added to the definition of the federal crime of terrorism.
The act extended the special and maritime criminal jurisdiction of the United States for crimes committed against Americans abroad. Federal terrorism crimes were brought under the provisions of the Racketeer Influenced and Corrupt Organizations (RICO) law.
The act required background checks for drivers transporting hazardous materials. The U.S. attorney general was required to assist the states in performing the background checks, and the states were required to report information on each license issued to the U.S. secretary of transportation.
The act prohibited the development, production, acquisition, or possession of biological agents, toxins, or delivery systems for use as a weapon. Certain people were prohibited from shipping, transporting, or receiving biological agents or toxins.
The act required the U.S. attorney general to provide grants to state and local governments to prevent terrorism and train public safety personnel to prevent and respond to terrorism. Funding was expanded and extended to improve federal, state, and local criminal history record systems and identification systems. Finally, the act required the federal government to provide a number of feasibility reports to Congress. These included providing airlines with computer access to suspected terrorists lists, fingerprint scanning systems for entrants to the United States, and enhancement to the FBI’s computer fingerprint system.
Objections to the PATRIOT Act
The PATRIOT Act provoked great controversy from privacy advocates, civil libertarians, politicians, and others. They saw the act as threatening some Constitutional protections and giving too much power to the government. As time passed after 9/11 without another significant terrorist attack on U.S. soil, the voices calling for a rollback of many of the provisions of the act multiplied. Most Americans did not read the long and legally complicated PATRIOT Act; however, many rumors and exaggerations grew up surrounding its provisions. Many Americans first learned about the FISA court, delayed notification search warrants, government subpoena powers, and other law enforcement powers through publicity surrounding the act. A significant number erroneously believed that the act created these powers. Citizen exposure to knowledge about the law enforcement power of the federal government, provided by the public debate over the PATRIOT Act, resulted in a backlash to the efforts to increase law enforcement power to deal with terrorism.
A number of antiterrorism initiatives that were not connected to the act were linked to it in popular misconception. Civil rights abuses by federal law enforcement agents, military tribunals, closed immigration hearings, and the designation and treatment of enemy combatants all were incorrectly linked to the act.
The American Civil Liberties Union and other organizations and individuals sought to rally opposition against the PATRIOT Act and roll back its provisions through court challenges or legislative action. At the same time, the Justice Department waged a public relations campaign to reassure the public that the act was necessary, seeking not only to retain the act but to increase its scope and powers.
The section of the act that made it easier for law enforcement to search and obtain financial and administrative records without warrants and without the knowledge or consent of the people listed in the records created significant protest. The controversy was symbolized by the examination of library records by federal agents. Privacy advocates suggested that the government would monitor all American’s library records to determine what they were reading. The Justice Department during testimony before Congress countered that requests for library records had been made a relatively small number of times since the inception of the act.
The change in the FISA act has elicited concern and opposition from privacy advocates. They worried that secret searches could be authorized by a secret court without law enforcement accountability as long as the government could allege a foreign intelligence connection. The Justice Department countered that requests for searches still required approval by the FISA court. The court, in its history, however, had rejected only a very small percentage of search requests. Before the PATRIOT Act the government needed to prove to the court that the primary purpose of the search was to gather foreign intelligence. Any intelligence gathered could not be shared with agents conducting criminal investigations. The act required the government only to show that a significant purpose of the search was to gather foreign intelligence. In addition, the results of the search could be shared with criminal investigators. This was a significant broadening of government power.
The expansion of the use of delayed notification search warrants was also controversial. Law enforcement advocates argued that law enforcement officers had been allowed in the past to delay notification of a warrant for a legitimate reason such as protection of an individual or an active investigation. This practice was upheld by the U.S. Supreme Court. However, the act greatly expanded the use of these warrants by criminal investigators. Privacy advocates worried that these secret searches would become commonplace, eroding constitutional protections against unreasonable search and seizure. A number of federal legislators introduced legislation to roll back this section of the act and limit these searches. They have not been successful.
The act lowered the standards for federal law enforcement to obtain court orders to use electronic monitoring devices that record the numbers dialed to and from a suspect’s telephone. The requirement to obtain a warrant was removed, if the government certified that the investigation was linked to terrorism. Some federal legislators also attempted, without success, to rescind this provision.
The authority to monitor telephone conversations was also applied to the Internet. The act clarified that rules for Internet surveillance were the same as for telephone taps. There was concern that the act authorized the use of a controversial federal Internet surveillance tool known as Carnivore. The act did not authorize Carnivore. It did lay down rules for Internet surveillance when none existed before.
The act authorized roving wiretaps. This means that federal investigators could tap every telephone or computer the subject might use. This was a broad expansion of law enforcement power. When used with the act’s national wiretap authorization, it limited a judge’s ability to oversee the use of the surveillance court order by law enforcement investigators.
The act expanded the authority of the U.S. Justice Department to use National Security Letters. These letters require repositories of a person’s personal records to turn over those records to the government.
The letters are similar to administrative subpoenas and are not reviewed by a court. Previously, these letters had been used only in espionage cases. The act allowed them to be used against anyone in a terrorism investigation.
Other sections of the PATRIOT Act have also raised concerns from various interest groups within the country. The act’s creation of the new crime of domestic terrorism had some right-to-life advocates and environmental activists worried that it would be used against their lawful protest activities. The increased power of the government to detain and hold aliens for investigation was also of concern to civil rights advocates in that it would promote the abuse of aliens.
A number of the provisions of the PATRIOT Act were subject to sunset provisions in 2005, whereby they will be deleted from the law unless they are expressly reauthorized by Congress. Advocates for and against the act were engaged in efforts to support or oppose these sunset provisions.
PATRIOT II
Some federal legislators envisioned a second act to further enhance the powers of the government to battle terrorism. This Domestic Security Enhancement Act of 2003, dubbed PATRIOT II, was leaked to the media in draft form and provoked great controversy. Because of the expected political opposition, it was never introduced in Congress.
The PATRIOT II act would have permanently enacted many provisions of the PATRIOT Act that expired in 2005 and made technical corrections to fix deficiencies in the original act.
The act would have further increased the electronic surveillance authority of federal investigators. It would have authorized an increase of the scope of use of administrative subpoenas. The exemption from the Freedom of Information Act inquiries for terrorism investigation information would have been broadened. Further regulations to suppress money laundering and the financial support of terrorist organizations would have been enacted.
The act would have discontinued most consent decrees on federal, state, and local law enforcement that could impede their ability to perform terrorism investigations. It would have amended current extradition law and increased the number of and type of crimes for which the federal government could request and be granted pretrial detention. The government’s authority to remove criminal aliens would have been expanded. Americans serving in a hostile terrorist organization would have automatically lost their U.S. citizenship.
While PATRIOT II was not introduced as legislation, efforts continue to strengthen the powers of government agencies to prevent and investigate terrorism. New legislation and regulations will continue to be introduced to further this end. The concern by civil libertarians and privacy advocates about potential abuses of power and the loss of constitutional rights will also continue.
