The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) was signed into law just weeks after the September 11, 2001, attacks on America and letters laced with weaponized anthrax powder were sent to several media and congressional offices. Although at the time the act enjoyed broad bipartisan support (98–1 in the Senate and 357–66 in the House), some of its provisions have since been criticized by civil liberties groups. The 2001 act incorporated a ‘‘sunset’’ provision, under which sixteen sections of the act were to expire on December 31, 2005, unless renewed by Congress. The merits of those sections (and others) and their effect on civil liberties will likely be a subject of an ongoing national debate over the appropriate balance between liberty and security interests.
The USA PATRIOT Act’s ten titles span some 131 pages in the Statutes at Large. It builds on the Antiterrorism and Effective Death Penalty Act of 1996 and the Omnibus Diplomatic Security and Antiterrorism Act of 1986.
Title I (‘‘Enhancing Domestic Security Against Terrorism’’) creates a counterterrorism fund and expands the National Electronic Task Force Initiative.
Title II (‘‘Enhanced Surveillance Procedures’’), which contains the several controversial sections, establishes new authority and procedures for electronic surveillance.
Title III contains the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001.
Title IV (‘‘Protecting the Border’’) was later supplemented by the Homeland Security Act of 2002.
Title V (‘‘Removing Obstacles to Investigating Terrorism’’) raises the limits on monetary rewards the government may pay to combat terrorism.
Title VI (‘‘Providing for Victims of Terrorism, Public Safety Officers and Their Families’’) amends the 1994 Victims of Crime Act and provides a fund for compensating victims of terrorist attacks.
Title VII (‘‘Increased Information Sharing for Critical Infrastructure Protection’’) expands regional federal–state–local law enforcement information sharing in responses to terrorist attacks.
Title VIII (‘‘Strengthening the Criminal Laws Against Terrorism’’) adds a definition of ‘‘domestic terrorism’’ to the existing definition of ‘‘international terrorism,’’ defines several new crimes of terrorism, enhances penalties for acts of terrorism, amends the related property forfeiture laws, and extends the statutes of limitations for terrorism crimes.
Title IX (‘‘Improved Intelligence’’) brings international terrorist activities within the scope of the National Security Act of 1947. Anticipating recommendations from the 9/11 Commission, it calls for better intelligence and information sharing. Its provisions were supplemented by the Intelligence Reform and Terrorism Prevention Act of 2004.
To appreciate the meaning and effect of the USA PATRIOT Act, at least two other statutes must be considered. Electronic surveillance by federal law enforcement personnel investigating general criminal activity is generally controlled by Title III of the Omnibus Crime Control and Safe Streets Act of 1986 (‘‘Title III’’) and the Electronic Communications Privacy Act of 1986. Title III prohibits electronic eavesdropping without a warrant. Title III warrants for wiretaps to record conversations may be issued by a federal court only upon a showing of probable cause. Court orders for less intrusive measures, such as pen registers and trap and trace devices (which record the phone numbers of outgoing and incoming calls, but not the content of those calls) do not present similar Fourth Amendment concerns and are issued under a less demanding standard. Those orders can extend to e-mail and other Internet activity. Warrants for physical searches in criminal investigations are governed by other rules, including FRCrP 41. The USA PATRIOT Act amended FRCrP 41 to permit federal courts to issue search warrants that may be exercised beyond the district court’s jurisdiction (that is, nationwide warrants) in cases involving terrorist activities.
By contrast, federal electronic surveillance and physical searches in the United States designed to gather foreign intelligence information on foreign powers (including international terrorist organizations) and their agents, to protect against national security threats, espionage, sabotage and terrorism, are controlled by the procedures set out in the Foreign Intelligence Surveillance Act (FISA) of 1978. Warrants for electronic or physical searches in such cases are issued by a special court established under FISA. The differing standards, procedures, and courts in national security and criminal investigations sometimes raise questions regarding the extent to which information gathered pursuant to a FISA warrant may be used in a criminal prosecution.
Provisions of the USA PATRIOT Act that raise concerns for civil liberties include:
Section 206 grants the FISA court authority, in cases involving foreign intelligence investigations, to authorize wiretaps that are not limited to a single phone or device.
Section 213 permits judges issuing warrants for searches of property to authorize a reasonable delay in notifying the person whose property was searched.
Section 215 authorizes the FISA court to issue orders compelling certain businesses to turn over business records concerning suspected terrorists or foreign agents.
Section 218 relaxes restrictions on information sharing on terrorism activities between U.S. law enforcement and foreign intelligence officers.
Section 505 allows law enforcement officials greater access to electronic mail records of terrorist suspects.
Other provisions, such as those allowing the federal government to detain non-U.S. citizens suspected of terrorism or relaxing the restrictions on disclosing grand jury testimony, raise additional concerns.
In examining the effect of the USA PATRIOT Act on civil liberties, it is important to bear in mind that no act of Congress can abrogate rights protected by the U.S. Constitution. With few exceptions, therefore, the debate is not over whether the act denies constitutional rights but rather the extent to which it alters protective provisions in other federal statutes and court rules or otherwise fails, from a policy perspective, to strike an appropriate balance between security and civil liberties.
CRAIG H. ALLEN
References and Further Reading
See also 9/11 and the War on Terrorism; Privacy; Search (General Definition)