On October 26, 2001, President George W. Bush signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), P. L. No. 107-56, 115 Stat. 272 (2001). The massive, 342-page act amended at least 15 existing laws, and it expanded the investigative and surveillance authorities of federal agencies in pursuit of law enforcement and counterterrorism ends. The Patriot Act quickly became a lightning rod for supporters and critics of the Bush administration’s “global war on terrorism,” and much hyperbole has surrounded public discourse about the act and its provisions. Although the Patriot Act was, by any measure, a reaction to the terrorist attacks of September 11, 2001, nearly all of the authorities created by Congress in 2001 were later re-authorized as permanent legislation in February 2006.
Background
The Department of Justice introduced antiterrorism bills in the House and Senate less than one week after the September 11 attacks. The department had already prepared draft legislation expanding law enforcement and counterterrorism investigative authorities, so the bills were readily and quickly assembled. In the rush to do something in response to September 11, and prodded by the anthrax letter attacks and the fear that other such attacks could be in the planning stages, the bills were passed with little debate in either house, and no Senate, House, or conference report was produced that could aid interpretation of its provisions after enactment. Although the original administration proposal contained several provisions that significantly expanded existing investigative and surveillance authorities, the only important concession made during the consideration of the act was the addition of so-called sunset provisions (providing that sections of the act expire automatically after a fixed period of time, unless explicitly renewed by Congress) attached to several of the most controversial new provisions.
The act is complex, and many of its provisions are controversial. The act has generated spirited debate throughout its history, centering on whether the broad powers granted the government in ways that could interfere with the rights of ordinary Americans have sufficient safeguards to protect basic liberties. Is the loss of personal liberty worth the gain in security? More than five years later, there is no clear answer to the policy debate or constitutional questions presented by some portions of the Patriot Act; nor is it clear whether the act has met the announced goal of making it more difficult for criminals and would-be terrorists to operate inside the United States.
Summary of the Act
The Patriot Act expands the authority of federal officials to track and intercept communications for law enforcement and foreign intelligence gathering purposes.
The act creates new crimes and penalties, and it streamlines in some ways the procedures for prosecution. The act also provides the Secretary of the Treasury with new powers to regulate corruption of U.S. financial institutions with respect to foreign money laundering, while it adds restrictions tightening immigration and border crossing laws and facilitates the detention and removal of suspected terrorists already inside the United States. Some of the most controversial expansions of governmental authority were made subject to a four-year sunset provision. After considerable debate and short-term extensions of the act in late 2005 and early 2006, all but two of those provisions were made permanent in 2006. Two others, discussed next, were renewed subject to a new, multi-year sunset provision. This discussion focuses on the portions of the Patriot Act most likely to impact privacy.
Provisions Affecting Privacy Interests
The most controversial provisions of the Patriot Act are those that most directly affect privacy interests. These parts of the act provide law enforcement and intelligence agencies a range of new surveillance and other investigative powers intended to thwart terrorism and other crimes. While some new authorities have been widely accepted, several others continue to generate controversy. The most significant new powers include
•”Sneak and peek” searches, which make it easier for law enforcement and intelligence agents to conduct secret searches of private homes and businesses without prior notice.
•Enhanced power for intelligence investigators to demand access to personal records held by libraries, health insurance companies,schools, businesses, and civil or nonprofit organizations.
•Expanded wiretapping authorities, which permit law enforcement agents to monitor personal Internet usage, including inbound and outbound electronic mail traffic and sites visited on the Internet. Court orders may be implemented nationwide (“roving wiretaps”).
•Eased restrictions on foreign intelligence gathering in the United States and greater access for intelligence investigators to information obtained during criminal investigations.
•Greater authority to bypass court approval and obtain personal records from financial institutions, telephone companies, and Internet service providers.
•Creation of a new crime of “domestic terrorism” that may be capable of targeting nonviolent domestic groups, such as abortion protesters and environmental activists.
“Sneak and Peek” Searches
The Fourth Amendment normally requires that police obtain a warrant from a magistrate or judge before searching someone’s home or business. The police also must notify the person before conducting the search (known as “knock and announce”). In theory, notice serves as a check against government excesses; government must operate in the open, and targets of a warrant could challenge it if the search exceeded the scope of the warrant or if, for example, the police came to the wrong home or business. Lacking prior notice, the target does not know of the warrant or the search until after the search has been completed. Exceptions to prior notice have been limited to situations where evidence of a crime was likely to be destroyed or where notice presented grave danger of physical harm to the investigators.
Under the Patriot Act, government agents may “sneak and peek” without notice if notification of a search “may have an adverse result” on law enforcement. The act allows notice to be delayed for a “reasonable period.” The Justice Department claims that delayed notice gives them time to gather evidence of terrorist activity and then arrest terrorists before they can attack. Critics point out that investigators already had authority for secret surveillance to gather intelligence about suspected terrorists, and the new law enforcement authority was not needed. In addition, the “sneak and peek” authority extends to all federal law enforcement activity, not just terrorism. This authority was not subject to the sunset in 2005.
Personal Records
Since at least the 1970s, federal courts have held that the government may collect personal information that has been voluntarily provided to various categories of third parties, such as banks, telephone companies, and schools. However, according to legislation concerning domestic criminal investigations, a subpoena for banking records, for example, required the bank to give notice to the target of the subpoena, who then could challenge the subpoena in court before the bank turned over information to the government. In gathering foreign intelligence, there would be no notice to the target, but the government had to demonstrate to a court probable cause to believe that the target was an agent of a foreign power.
Under these two schemes, the government could access a limited range of personal information—financial records and records from airlines, car rental agencies, and other travel businesses. As modified by the Patriot Act, any kind of business or nonprofit is required to produce “any tangible thing” that the government demonstrates is relevant to “an authorized investigation to protect the United States from international terrorism.” The requests, like prior ones related to foreign intelligence, are made by a special court created by the Foreign Intelligence Surveillance Act of 1978 (FISA), where no notice or opportunity for the target to contest the request is available and the court has no discretion to reject the government’s request so long as the application is technically complete. The showing of a connection to a foreign power is no longer required, and the information may be sought from an unlimited range of businesses or nonprofits, including credit card companies, health management organizations, video rental stores, libraries and and advocacy organizations. In addition, once a firm is presented with a demand for “any tangible thing,” the act forbids the firm from disclosing the request to the target or to any other person.
The act does forbid the government from basing a request for records solely on the First Amendment activities of a U.S. citizen or resident alien. Moreover, the Justice Department has claimed no interest in the reading or shopping habits of ordinary Americans. Instead, the department has maintained that the expanded authority might help uncover terrorist plots, such as learning about the purchase of bomb-making materials from a feed or hardware store or a chemical or pharmaceutical plant. Still, libraries and other groups lobbied hard to allow the records provision to lapse by its sunset at the end of 2005. In the 2006 re-authorization, the records sunset will be extended for a period of years, and a proposal to require the government to show that the target of the request is connected to terrorism or espionage before obtaining his records faces an uncertain outcome in Congress.
Monitoring Internet Use
Before the Patriot Act, government investigators had authority to use pen registers and trap-and-trace devices to record the numbers of outgoing and incoming telephone calls at a particular phone. Law enforcement investigators could obtain a court order so long as they simply certified that the pen register or trap-and-trace device was “relevant” to an ordinary criminal investigation. Because these devices do not capture actual conversations, and are thus viewed as less of a privacy threat than traditional wiretaps, the law did not require that the target be a suspect in the investigation.
Under the Patriot Act, the pen register and trap-and-trace order may be extended to cover “dialing, routing, and signaling” information, enabling the government to monitor Internet use. Although the act forbids the monitoring of the “content of any communication,” critics of the provision note that a log of any person’s e-mail or Internet transmissions can reveal the websites visited and the kinds of documents viewed or downloaded at those sites. In addition, the Patriot Act expanded the reach of a pen register or trap-and-trace order to follow the target anywhere in the United States, not just within the jurisdiction where the court issued the order. These nationwide or “roving” orders save time, according to the government, and the expanded authority to monitor Internet use is a necessary part of countering terrorist threats. Critics tend to concede the need for Internet surveillance, but they argue that because the authority in the act is not limited to terrorism investigations, the “relevant” standard should be tightened to limit its application to those actually suspected of aiding terrorism. In the end, Congress voted to extend the sunset provision on “roving wiretaps.”
Expanded Foreign Intelligence Gathering within the United States
Since 1978, when Congress created the Foreign Intelligence Surveillance Court (FISC) in the Foreign Intelligence Surveillance Act, the government has been permitted to come to the secret court and obtain permission to install wiretaps and conduct searches without notice to the target and without showing probable cause of a crime. The purpose of the surveillance or search had to be to gather foreign intelligence, and not to solve domestic crimes. Because the targets were agents of foreign powers and there was no domestic law enforcement purpose to the surveillance or search, the traditional requirements of notice to the target and demonstration to a magistrate that there was probable cause of criminal conduct were not viewed as essential for these intelligence-gathering activities.
In the Patriot Act, an apparently simple and inconsequential change in wording—from “the purpose” to “a significant purpose”—has been construed by the Justice Department and a FISA review court to permit the government to use the secretive and less protective FISC and FISA to get warrants, even where the overriding purpose for the surveillance is to obtain foreign intelligence information. As the Justice Department and other supporters of the change point out, national security crimes—particularly terrorism crimes—have mushroomed in recent years. Thus, the search for intelligence related to security and terrorism and investigations of criminal conduct are intertwined to such an extent that requiring separate procedures and separate investigative teams was hindering effectiveness.
The effect of this Patriot Act amendment on FISA was widely perceived as tearing down “the wall” separating law enforcement and intelligence gathering. Intelligence information can be shared with criminal investigators, and law enforcement information can be given to intelligence investigators. This sharing of information was reinforced by a related Patriot Act provision that makes information sharing an express power.
National Security Letters
When citizens provide private information to third parties—banks, and telephone and Internet companies, for example—courts have held that there is no privacy interest that stands in the way of the third party transferring that information to the government. Before the Patriot Act, the government had authority to issue “national security letters” (NSLs) to force financial institutions and telephone companies to release information concerning their customers. However, the government had to have “specific and articulable facts” to show that the customer whose records were sought was an agent of a foreign power. Under the Patriot Act, the factual predicate was loosened considerably, so now to obtain an NSL the government merely has to show that the credit reports, banking records, or telephone and e-mail logs are “relevant” to an authorized intelligence investigation. The NSL is issued by the FBI, and no court approves in advance or certifies afterward that the legal requirements have been met.
Although the NSL provision was not subject to the 2005 sunset, Congress amended the NSL provision in 2006 to rescind a requirement that the recipient of a NSL not communicate with anyone, even a lawyer, about its receipt. In addition, Congress may provide the NSL recipient with an opportunity to seek judicial review of the NSL before complying with its terms to determine that the request meets the “relevance” standard and does not otherwise violate the rights of the recipient.
The Crime of “Domestic Terrorism”
For the first time in our nation’s history, Congress provided through the Patriot Act a law enforcement means for charging citizens thought to be engaged in terrorist activity. The crime of “domestic terrorism” includes “acts dangerous to human life” that otherwise violate federal law and that “appear to be intended . . . to influence the policy of a government by intimidation or coercion” and occur primarily inside the United States. Critics of the new crime assert that government could use the law to justify investigations and prosecutions of political activists and nonprofit organizations that are opposed to government policies. They worry that civil disobedience and nonviolent protest could be construed as acts that “appear to be intended . . . to influence . . . government by intimidation or coercion” and that are “dangerous to human life.” Government supporters answer that these fears are misplaced, and that peaceful groups who do not otherwise break laws will not be perceived as committing the new crime. Although the new crime was one of those provisions due to expire at the end of 2005, it was made permanent in the 2006 legislation.
