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USA PATRIOT Act

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The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act, H.R 3162, S. 1510, Public Law 107-56) is a US legislative law, enacted in response to the September 11, 2001 Terrorist Attacks. The bill passed 98-1 in the United States Senate, and 356-66 in the United States House of Representatives; Senator Russ Feingold cast the Senate's lone dissenting vote. President George W. Bush signed the bill into law on October 26, 2001. Assistant attorney general Viet D. Dinh, was the chief architect of the act.

Table of contents
1 Overview
2 Domestic vs Foreign Law Enforcement/Surveillence
3 Public opinion
4 Alleged Abuses Under The Patriot Act
5 Bills to limit the USA PATRIOT Act
6 Sunset Information
7 See also
8 Historical Similarities to Other Laws
9 External links and references

Overview

This law provides for indefinite imprisonment without trial of non-U.S. citizens whom the Attorney General has determined to be a threat to national security. The government is not required to provide detainees with counsel, nor is it required to make any announcement or statement regarding the arrest. The law allows a wiretap to be issued against an individual instead of a specific telephone number. It permits law enforcement agencies to obtain a warrant and search a residence without immediately informing the occupants, if the Attorney General has determined this to be an issue of national security. The act also allows intelligence gathering at religious events. With a few exceptions, provisions of the act are due to expire on December 31, 2005.

There has been strong criticism of the act on the grounds that parts of it violate the Constitution and endanger civil liberties. The American Civil Liberties Union (ACLU) alleges that its search and detention provisions violate the Fourth Amendment. Some say that the act's secret warrants resemble the general warrants which were one reason the colonists fought the American Revolutionary War.

Critics also say the law was passed without serious review in a climate of fear, and that it represents a reactionary agenda that has little to do with the 9/11 attacks. They note that there were unsuccessful attempts to pass similar laws, such as the Methamphetamine Anti-Proliferation Act of 2000, long before 9/11.

Supporters of the law argue that terrorist acts may result in the loss of thousands or millions of lives, so waiting until after the fact to hunt the perpetrators down would be a deadly mistake. They admit that the law may result in some rights abuses, but argue that the most basic civil right is the right to live without perpetual fear. They further argue that, unless the Supreme Court rules otherwise, the law is constitutional. However, since the Supreme Court does not seek out laws to countermand, the constitutionality of the Patriot Act must remain a question until someone brings the dispute before the court.

All of the candidates for the Democratic Party nomination for the U.S. presidential election, 2004 have criticized Attorney General John Ashcroft's use of the act. Among them, Ohio Congressman Dennis J. Kucinich voted against its passage in the House of Representatives.

Four states (Hawaii, Alaska, Maine and Vermont) and 331 cities (including New York City, Los Angeles, Dallas, Chicago, Eugene, Oregon, Philadelphia, Pennsylvania and Cambridge, Massachusetts) have passed resolutions condemning the USA PATRIOT Act for attacking civil liberties. Arcata, California is the first city to pass an ordinance that bars city employees (including police and librarians) from assisting or cooperating with any federal investigations under the USA PATRIOT Act that would violate civil liberties. The Bill of Rights Defense Committee is helping coordinate local efforts to pass resolutions. Pundits question the validity of these ordinances, noting that under the Constitution's supremacy clause, federal law overrides state and local laws.

The act is 342 pages long and amends over fifteen statutes. The following summarizes the new powers granted by the law:

Opponents and supporters of the law make claims and counterclaims: The USA PATRIOT Act is not why the American citizens Jose Padilla and Yaser Kemal are being held; they are being held as enemy combatants, a term from the World War II era. The U.S. government is relying on a 1942 Supreme Court decision, Ex parte Quirin, to hold them indefinitely, without being able to meet with attorneys, friends, or family.

A government report has found that secret searches in the U.S. are up 85% since 2001. [1]

Domestic vs Foreign Law Enforcement/Surveillence

Domestic Law Enforcement Foreign Intelligence Surveillance
1. Intercept Orders.

Title III (named after the relevant section of the original legislation, the Omnibus Crime Control and Safe Streets Act of 1968) surveillance is a traditional wiretap that allows the police to bug rooms, listen to telephone conversations, or get content of electronic communications in real time.

  • Obtained after law enforcement makes a showing to a court that there is "probable cause" to believe that the target of the surveillance committed one of a special list of severe crimes.
  • Law enforcement must report back to the court what it discovers.
  • Up to 30 days; must go back to court for 30-day extensions

(Courts do not treat unopened e-mail at ISPs as real-time communications.)

1. FISA Intercept Orders.
  • Secret Court. No public information about what surveillance requested or what surveillance actually occurs, except for a raw annual report of number of requests made and number granted (the secret court has only refused one request).
  • Previous standard was certification by Attorney General that "the purpose" of an order is a suspicion that the target is a foreign power or an agent of a foreign power.
  • Attorney General is not required to report to the court what it does.
  • Up to 90 days, or 1 year (if foreign power)
2. Pen/Trap.

Pen/Trap surveillance was based upon the physical wiring of the telephone system. It allowed law enforcement to obtain the telephone numbers of all calls made to or from a specific phone.

  • Allowed upon a "certification" to the court that the information is relevant to an ongoing criminal investigation.
  • Court must grant if proper application made.
  • Does not require that the target be a suspect in that investigation and law enforcement is not required to report back to the court.

Prior to PATRIOT there had been debate about how this authority is to be applied in the Internet context.

2. FISA Pen/Trap.

Previous FISA pen/trap law required not only showing of relevance but also showing that the communications device had been used to contact an "agent of a foreign power."

While this exceeds the showing under the ordinary pen/trap statute, such a showing had the function of protecting U.S. persons against FISA pen/trap surveillance.

3. Physical search warrants

Judicial finding of probable cause of criminality; return on warrant.

Previously, agents were required at the time of the search or soon thereafter to notify person whose premises were searched that search occurred, usually by leaving copy of warrant.

PATRIOT makes it easier to obtain surreptitious or "sneak-and-peek" warrants under which notice can be delayed.

3. FISA Physical search warrants

See FISA 50 USC §1822. PATRIOT extends duration of physical searches.

Under previous FISA, Attorney General (without court order) could authorize physical searches for up to one year of premises used exclusively by a foreign power if unlikely that U.S. person will be searched; minimization required. A.G. could authorize such searches up to 45 days after judicial finding of probable cause that U.S. target is or is an agent of a foreign power; minimization required, and investigation may not be based solely on First Amendment-protected activities.

4. Subpoenas for stored information.

Many statutes authorize subpoenas; grand juries may issue subpoenas as well. EFF's main concern here has been for stored electronic information, including e-mail communications and subscriber or transactional records held by ISPs. Subpoenas in this area are governed by the Electronic Communications Privacy Act (ECPA).

4. FISA subpoenas

Previously, FISA authorized collection of business records in very limited situations, mainly records relating to common carriers, vehicles or travel, and only via court order.

PATRIOT permits any "tangible things," including business records, to be obtained via a subpoena.

Public opinion

According to a September 9, 2003 CNN/USA Today/Gallup Poll, 75% of Americans are not worried about the USA PATRIOT Act violating their civil rights.[1] Just 22% say the legislation goes "too far," while about the same number, 21%, say "not far enough." A plurality, 48%, says the Act is "about right."

Alleged Abuses Under The Patriot Act

Bills to limit the USA PATRIOT Act

US Senate

On July 31, 2003, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR), introduced the "Protecting the Rights of Individuals Act" (S. 1552) [1]. This bill would revise several provisions of the USA PATRIOT Act to increase judicial review. For example, instead of PEN/Trap warrants to track Internet usage being based on the claims of law-enforcement, they would be based on "specific and articulable facts that reasonably indicate that a crime has been, is being, or will be committed, and that information likely to be obtained by such installation and use is relevant to the investigation of that crime." However, the Protecting the Rights of Individuals Act doesn't address the portion of Sec. 216 of the USA PATRIOT Act which allows unnamed-persons to be subject to a PEN/Trap warrant based on law-enforcement certifying that those individuals should have been named.

US House of Representatives

On September 24, 2003, Congressman and Democratic Presidential Candidate Dennis Kucinich (D-OH), Co-Chair of the Progressive Caucus, introduced legislation into the US House of Representatives to repeal more than ten sections of the Act. The bill, titled the "Benjamin Franklin True Patriot Act", looks to review certain sections of the USA PATRIOT Act, including those that authorize sneak and peek searches, warrantless library, medical, and financial record searches, and the detention and deportation of non-citizens without meaningful judicial review. Beyond the USA PATRIOT Act, the bill cements the fundamental right of Attorney/Client Privilege and restores transparency in the Department of Justice and Department of Homeland Security by revoking FOIA secrecy orders, along with other important provisions.

Sunset Information

Sunset Provisions

Under PATRIOT §224, several of the surveillance portions of PATRIOT will expire on December 31, 2005.

A. The provisions that expire include:

B. The following provision do not expire:

See also

Historical Similarities to Other Laws

External links and references