The USA PATRIOT Act (commonly known as the Patriot Act) is a landmark Act of the United States Congress, signed into law by President George W. Bush. The formal name of the statute is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, and the commonly used short name is a backronym that is embedded in the name set forth in the statute.
The Patriot Act was enacted following the September 11 attacks and the 2001 anthrax attacks with the stated goal of tightening U.S. national security, particularly as it related to foreign terrorism. In general, the act included three main provisions:
Expanded surveillance abilities of law enforcement, including by tapping domestic and international phones;
Easier interagency communication to allow federal agencies to more effectively use all available resources in counterterrorism efforts; and
Increased penalties for terrorism crimes and an expanded list of activities which would qualify for terrorism charges.
The law is extremely controversial due to its authorization of indefinite detention without trial of immigrants, and due to the permission given to law enforcement to search property and records without the owner's consent or knowledge. Since its passage, several legal challenges have been brought against the act, and federal courts have ruled that a number of provisions are unconstitutional.
It contains many sunset provisions beginning December 31, 2005, approximately four years after its passage. Before the sunset date, an extension was passed for four years which kept most of the law intact. In May 2011, President Barack Obama signed the PATRIOT Sunset Extensions Act of 2011, which extended three provisions. These provisions were modified and extended until 2019 by the USA Freedom Act, passed in 2015. In 2020, efforts to extend the provisions were not passed by the House of Representatives, and as such, these provisions have expired.
Contents
History
The Patriot Act was enacted in direct response to the September 11 attacks on the United States, and the 2001 anthrax attacks, with the stated goal of dramatically strengthening national security. On October 23, 2001, U.S. Representative Jim Sensenbrenner (R-WI) introduced House bill H.R. 3162, which incorporated provisions from a previously-sponsored House bill, and a Senate bill introduced earlier in the month. The next day, October 24, the Act passed the House by a vote of 357–66, with Democrats comprising the overwhelming majority of "no"-votes. The three Republicans voting "no" were Robert Ney of Ohio, Butch Otter of Idaho, and Ron Paul of Texas. On October 25, the Act passed the Senate with a vote of 98–1. Russ Feingold (D-WI) voted "no". On October 26, then US President George Bush signed the Patriot Act into law.
Opponents of the law have criticized its provision for indefinite detention of immigrants; permission to law enforcement to search a home or business without the owner's or the occupant's consent or knowledge under certain circumstances; the expanded use of National Security Letters, which allows the Federal Bureau of Investigation (FBI) to search telephone, email, 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 court 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 set to expire on December 31, 2005, approximately four years after its enactment. In the months preceding the sunset date, supporters of the act pushed to make those provisions permanent, while critics sought to revise various sections to enhance civil liberties protections. In July 2005, the U.S. Senate passed a reauthorization bill with substantial changes to several of the act's sections, while the House reauthorization bill kept most of the act's original language. The two bills were then reconciled in a conference committee 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 by President Bush on March 9 and 10 of that year.
On May 11, 2012, President Barack Obama signed the PATRIOT Sunsets Extension Act of 2011, a four-year extension of three key provisions in the Act: roving wiretaps, searches of business records, and conducting surveillance of "lone wolves" (individuals suspected of terrorist-related activities not linked to terrorist groups).
Legislative history
Final House vote:
Final Senate vote:
Titles
Title I: Enhancing domestic security against terrorism
Title I of the Patriot Act 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 Terrorist Screening Center which is administered by the FBI. The military was authorized to provide assistance in some situations that involve weapons of mass destruction when so requested by the Attorney General. 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 11 terrorist attack.
Title II: Enhanced 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; furthermore, 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 networks—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 18 U.S.C. § 1030(e)(2) 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 registers and trap and trace devices (chapter 206) and stored communications (121), though it excluded the disclosure of cable subscriber viewing habits. Subpoenas issued to Internet service providers (ISPs) 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 addresses), 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 III: Anti-money-laundering to prevent terrorism
Title III of the Patriot 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 laundering 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. The first subtitle deals primarily with strengthening banking rules against money laundering, especially on the international stage. The second subtitle attempts to improve communication between law enforcement agencies and financial institutions, as well as expanding recordkeeping and reporting requirements. The third subtitle deals with currency smuggling and counterfeiting, including quadrupling the maximum penalty for counterfeiting foreign currency.
The first subtitle also tightened the recordkeeping 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 even made institutions put into place reasonable steps to identify beneficial owners of bank accounts and those who are authorized to use or route funds through payable-through accounts.
The U.S. Department of 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 banks 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.
Title IV: Border security
Title IV of the Patriot Act amends the Immigration and Nationality Act of 1952 to give more law enforcement and investigative power to the U.S. Attorney General and to the Immigration and Naturalization Service (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 U.S. 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 U.S. State Department 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 U.S. 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, the cross-platform electronic system used for conducting background checks, 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 B, 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 weapons), 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 8 U.S.C. § 1189 by the Secretary of State.
Title V: Removing obstacles to investigating terrorism
Title V 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 U.S. State Department to offer rewards, in consultation with the Attorney General, for the full or significant dismantling of any terrorist organization and to identify any key leaders of terrorist organizations. The U.S. 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.
U.S. 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 Letters (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 U.S. 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 not to 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.
Title VI: Victims and families of victims of terrorism
Title VI amended the Victims of Crime Act of 1984 (VOCA) to change how the U.S. Victims of Crime Fund was managed and funded, improving the speedy provision of aid to families of public safety officers by expedited payments to officers or the families of officers injured or killed in the line of duty. Payments must be made no later than 30 days later. 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 Programs, 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 testing 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 Washington, D.C., Puerto Rico, the U.S. Virgin Islands, or 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 1968 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.
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.
Title IX: Improved intelligence
Title IX amends the National Security Act of 1947 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 U.S. 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 U.S. Attorney General and Director of Central Intelligence both 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."
Title X: Miscellaneous
Title X created or altered a number of miscellaneous laws that did not fit into any other section of the USA PATRIOT Act. Hazmat 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 where 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 in 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 airlines 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.
Controversy
The 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 that there would 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 (D-VT) and Russ Feingold (D-WI) proposed amendments to modify the final revision).
Sami Al-Arian
Sami Al-Arian was a Palestinian-American tenured computer engineering professor at the University of South Florida, who also actively promoted dialogue between the West and the Middle East, especially about the plight of Palestinians.
He was indicted in February 2003 on 17 counts under the Patriot Act, based largely on transcripts of wiretapped calls and faxes from the mid-1990s. Al-Arian was accused of using an academic think tank as a fundraising front for the Palestinian Islamic Jihad (PIJ), a U.S.-designated terrorist organization, and was described by then-Attorney General John Ashcroft as an early success of the Patriot Act.
For much of his pretrial detention, Al-Arian was held in almost solitary confinement in a maximum security prison, prompting Amnesty International to raise concerns about the conditions of his improsionment, including heavy shackles during attorney visits and restrictions on exercise and family contact.
A jury eventually acquitted him on 8 counts, while remaining deadlocked on the 9 others. He later struck a plea deal that included admitting to one of the last charges of providing services to the PIJ (including immigration-related assistance to members) in exchange for being released and deported by April 2007. However, a Federal Judge sentenced him to an additional 19 months past time served, calling him an active leader in the organization.
Instead of being released, he was held under house arrest from 2008 until 2014 when federal prosecutors filed a motion to dismiss charges against him. He was deported to Turkey on February 4, 2015. Folowing his deportation, Al-Arian said in interviews that he had helped mobilize Muslim-American support for George W. Bush's 2000 presidential campaign in Florida in exchange for a promised policy commitment against the use of secret evidence. This promise was unfulfilled once the September 11 attacks reshaped the political atmosphere.
Immigration
One controversial aspect of the Patriot Act is the immigration provisions that allow for the indefinite detention of any alien who the Attorney General believes may cause a terrorist act.
Before the 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 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 (among 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."
Illegal Money Transfers
The Patriot Act’s prohibitions against illegal money transfers were used against major credit card companies in 2003.
Lisa and Andrew Harding lost over $100,000 at illegal gambling websites between 2002-2003. Both Hardings were later named in a lawsuit for failure to pay their credit card bills. The Hardings subsequently filed a countersuit against Visa Inc. and its USA Division, Discover Financial and Mastercard International, alleging that the companies violated the Patriot Act by facilitating the illegal transfers to the gambling sites.
Discover Card and Visa eventually agreed to relieve some of the accrued debt.
Fahrenheit 9/11 Film
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 Congressperson Jim McDermott (D-WA) alleging that no Senator had read the bill and John Conyers, Jr. (D-MI) 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?" Congressperson Conyers answers his own question, saying that if they did read every bill, 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 loudspeaker, reading out the Act to puzzled passers-by, including a few senators.
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 ACLU, in a new fact sheet challenging the DOJ Web site, wants you to believe that the act threatens our most basic civil liberties. Ashcroft and his roadies call the changes in law "modest and incremental." Since almost nobody has read the legislation, much of what we think we know about it comes third-hand and spun. Both advocates and opponents are guilty of fear-mongering and distortion in some instances.
Susan Lindauer
One prime example of how the Patriot Act has stirred controversy is the case of Susan Lindauer.
Lindauer is a former Congressional staffer and antiwar activist who was charged under the Patriot Act with "acting as an unregistered agent of a foreign government," then ruled by a court mentally unfit to stand trial. Lindauer has emphatically denied both on many occasions, saying that she in fact had been a CIA agent serving as a link between the U.S. and Iraqi governments.
In 2010 she wrote a book called Extreme Prejudice: The Terrifying Story of the Patriot Act and the Cover-Ups of 9/11 and Iraq to that effect. The charges were dropped in 2009.
Brandon Mayfield
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.
National Security Letters
Perhaps one of the biggest controversies involved the use of National Security Letters (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, including the American Civil Liberties Union.
Although FBI officials have a series of internal "checks and balances" that must be met before the issue of an NSL, Federal Judge Victor Marrero ruled the NSL provisions unconstitutional.
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 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 ISP 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 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.
Libraries
Another provision of the Patriot Act has caused a great deal of consternation among 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, 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 it adopted a resolution condemning the Patriot Act and urging members to defend free speech and protect patrons' privacy.
The association urged librarians to seek legal advice before complying with a search order, and advised its members to keep records only for as long as was legally required.
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, known as the Connecticut Four, worked with the ACLU to lift a gag order for library records, challenging the government's power under Section 505 to silence four citizens who wished to contribute to public debate on the PATRIOT Act. This case became known as Doe v. Gonzales.
In May 2006, the government finally gave up its legal battle to maintain the gag order. In a summary of the actions of the Connecticut Four and their challenge to the 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."
Wiretapping
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 (EFF) 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.
Expanded Court Jurisdiction
The 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.
Sneak and Peek Searches
For a time, the 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.
Freedom of Association
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 believes 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. In 2004 a Federal District Court struck the provision down as unconstitutionally vague, but in 2010 the Supreme Court reversed that decision.
British Columbia
Another controversial aspect of the 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 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 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 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.
Nova Scotia
Legal action has been taken in Nova Scotia to protect the province from the Patriot Act's data collecting methods.
On November 15, 2007, the government of Nova Scotia passed legislation aimed to protect Nova Scotians' personal information from being brought forward by the 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."
In the 1980s, the Bank of Nova Scotia was the center of an early, pre-Internet data-access case that led to the disclosure of banking records.
Voicemail
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. Legal Scholar Orin Kerr 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 people's 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 Patriot Act was reasonable and sensible.
United States v. Antoine Jones
Another example of controversy in the Patriot Act is the 2012 court case United States v. Antoine Jones.
A nightclub owner was linked to a drug trafficking stash house via a law enforcement GPS tracking device attached to his car. It was placed there without a warrant, which caused a serious conviction obstacle for federal prosecutors in court. The case eventually reached the U.S. Supreme Court, where the conviction was overturned.
The court found that installing a tracking device for the purpose of long-term monitoring - caused by legislation like the Patriot Act - constituted a search that violated the defendant's constitutional rights.
NSA Call Record Collection
After suspected abuses of the Patriot Act were brought to light in June 2013 with articles about collection of American call records by the NSA and the PRISM program (see 2013 mass surveillance disclosures), Representative Jim Sensenbrenner, Republican of Wisconsin, who introduced the Patriot Act in 2001, said that the National Security Agency overstepped its bounds.
He released a statement saying "While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses." He added: "Seizing phone records of millions of innocent people is excessive and un-American."
Reauthorizations
The USA PATRIOT Act was reauthorized by three bills. The first, the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, was passed by Congress in July 2005. This bill reauthorized some, but not all, provisions of the original USA PATRIOT Act, as well as the newer Intelligence Reform and Terrorism Prevention Act of 2004. It created new provisions relating to the death penalty 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 Title II provisions. 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 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 meant that the defendant was also required to tell the FBI who they were disclosing the order to; this requirement was removed by the USA PATRIOT Act Additional Reauthorizing Amendments Act.
On Saturday, February 27, 2010, President Barack Obama 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).