Overview
The Uniting and Strengthening America by Providing Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT) became Public Law No: 107-56 on October 26, 2001. The law was signed by President George W. Bush and had considerable bipartisan support in both the House, where it passed 357-66, and in the Senate, where it passed by a vote of 98-1.
There has been much public debate on the merits of PATRIOT. However, upon careful review, Home School Legal Defense Association has reached the conclusion that PATRIOT does not on its face constitute a direct threat to the liberty of parents as it concerns the upbringing and education of their children. We will continue to monitor the implementation of this law. Like all laws, implementation is just as important as the language itself. HSLDA does not take a position on the value of the law in combating terrorism or whether PATRIOT may constitute an infringement on some other civil liberty. To do so would be to reach beyond our mission.
To better inform HSLDA members, the following is a summary of this law, along with an indication of the principal criticisms being levied against it. In the wake of September 11, 2001, there exists little need to expound upon the dangers of terrorism and the need for our government to confront it.
Title-by-Title Summary and Analysis
PATRIOT was passed in order to grant law-enforcement and intelligence agencies enhanced powers in furtherance of the investigation into worldwide terrorism. In addition, PATRIOT has sections devoted to money laundering, immigration, and provisions concerning the victims of terrorism. At more than 300 pages, and containing 10 separate titles, PATRIOT is a complex bill that makes numerous changes and additions to current law. It also sets up several new offenses for computer fraud and abuse. The following is a brief title-by-title summary.
Title I: Enhancing Domestic Security Against Terrorism
Title I has received little in the way of public comment. It sets up a counter-terrorism fund and crime task forces, and it increases the president's ability to confiscate property belonging to a foreign person, country, or organization.
Title II: Enhanced Surveillance Procedures
Title II has received the most attention and criticism of any part of the law. The basic critique is twofold: first, that judicial involvement in monitoring surveillance has been reduced; and second, that investigative authority under intelligence law could be used to bypass certain procedures that protect privacy in normal criminal investigations. To understand the dynamics in play, a general review of United States surveillance law is helpful.
U.S. law provides essentially four surveillance tools that government may utilize in criminal or intelligence investigations. All four tools come into play only where a court order has been issued. In order to obtain the tool, the government must show the court the need for it.
The amount of evidence, etc., that needs to be shown to the court depends upon the tool. However, if the information is being sought for foreign intelligence investigations, a law called the Foreign Intelligence Surveillance Act (FISA) in large measure controls the situation. A principal concern to some civil libertarians is that under PATRIOT, tools could be obtained pursuant to a FISA investigation of a foreign agent, even though a real motive is to use the tool to search for evidence of a domestic crime.
The tools are as follows: 1. Subpoenas, which require a person to produce tangible evidence; 2. Interception Orders, which permit the interception of communications, often referred to as "wiretaps"; 3. So-called "Pen Register" and "Trap-and-trace Device" Orders, which allow the collection of numbers, etc., dialed to and from a particular place; and 4. Search Warrants, which permit the search of a physical premises and seizure of, by force if necessary, tangible evidence.
Title II of PATRIOT makes some modifications to these surveillance tools:
The following are the major modifications:
1. Subpoenas: Sec. 210 expands the scope of allowable subpoenas for records of electronic communications to include the length and types of services utilized, temporary network addresses, and the source of payment, including credit or bank card numbers.
2. Interception Orders: Sec. 201 adds terrorism to the list of offenses being investigated that can give rise to an interception order.
3. So-called "Pen Register" and "Trap-and-trace Device" Orders: Sec. 216 expands pen register orders to allow for the collection of e-mail and web-browsing information, but such orders do not allow content to be obtained. Sec. 214 prohibits the use of this type of order in any investigation that is conducted solely on the basis of activities protected by the First Amendment. Sec. 507 allows an educational agency to collect educational records relevant to a terrorist offense.
Some argue that expanding this tool to Internet information is not appropriate because this tool does not require a high level of proof. Law enforcement may obtain this tool merely upon certifying to the court that the information is relevant to an ongoing criminal investigation.
4. Search Warrants: Secs. 219 and 220 expand the jurisdiction of search warrants for use in terrorist investigations to the entire United States, as opposed to just the judicial district issuing the warrant. Sec. 213 provides that notice of a warrant being executed can be delayed for a "reasonable period" by the court if immediate notice may have an adverse result or under other specified circumstances. (This is often referred to as "sneak and peek.")
Some have raised concerns that delay in the notice of a search warrant undermines the reasonableness standard of the Constitution's Fourth Amendment.
As noted above, Title II expands the ability of the government to conduct foreign intelligence surveillance, that is, make investigations of foreign agents operating in the United States. Further, Title II allows some overlap between foreign intelligence investigations and domestic criminal investigations. In particular, Sec. 218 provides that an application for a search warrant or intercept order under FISA may be granted if only a significant purpose of the surveillance is to obtain foreign intelligence information. This expands the use of foreign surveillance as an aid to criminal investigations, as previous law required that a FISA warrant be obtained only where foreign surveillance is the sole purpose.
There are other changes to foreign surveillance law as it interplays with domestic criminal investigations. For example, Sec. 203 allows grand jury information involving foreign intelligence to be shared with federal law enforcement officials. Sec. 203 also provides for greater disclosure between criminal and foreign surveillance investigations. Sec. 206 allows for so-called roving wiretaps to be utilized in FISA investigations, which allow intercepts on any phones or computers that the target may use. Sec. 215 expands subpoenas in FISA situations to allow for the production of business records in terrorism investigations. The subject of the subpoena need not be the agent of a foreign power, and the order must be granted by the court if the application meets requirements.
Title III: International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001
This title makes fairly technical changes to the ways financial institutions deal with foreign shell banks, cooperation between institutions, jurisdiction of foreign money launderers, and forfeiture. It also amends certain bank secrecy laws to allow for immunity for voluntary disclosure of suspicious activities, and establishes new felonies associated with currency.
Title IV: Protecting the Border
This title authorizes increased hiring at the Immigration and Naturalization Service (INS), triples border personnel at points of entry, and directs the development of technology to identify visa and admission applicants. It also broadens the scope of aliens ineligible for admission or deportable due to terrorist activities and takes into account aliens affected by the terrorist activities of September 11.
Title IV has been criticized for allowing the temporary detention of non-citizens based only on the attorney general's certification that he has "reasonable grounds to believe" that the non-citizen endangers national security. However, immigration or criminal charges must still be filed within seven days, though these charges need not necessarily relate to terrorism.
There has also been some concern that in the zeal to identify foreign visa applicants, U.S. citizens could be required to carry identification. This depends, of course, in how the law is implemented. PATRIOT is, on its face, silent as to national identification cards.
Title V: Removing Obstacles to Investigating Terrorism
This title authorizes rewards, adds terrorism as an offense allowing for DNA identification collection, and grants the FBI authority to investigate fraud related to computers.
Title VI: Providing for Victims of Terrorism, Public Safety Officers, and Their Families
This title provides for payments to safety personnel involved in terrorist attacks, and establishes an emergency reserve victims-of-crime fund.
Title VII: Increased Information Sharing for Critical Infrastructure Protection
This title extends Bureau of Justice Assistance regional sharing system grants to multi-jurisdictional law-enforcement agencies addressing terrorist conspiracies.
Title VIII: Strengthening the Criminal Laws Against Terrorism
This title adds new criminal offenses, both domestic and international, relating to terrorist acts against mass transportation vehicles, ferries, etc. This title also prohibits harboring of terrorists.
Some have argued that the new crime of domestic terrorism will transform protestors into terrorists if the conduct "involves acts dangerous to human life." It has been argued by the American Civil Liberties Union (ACLU) that groups such as Operation Rescue and Greenpeace have in the past engaged in activities which could subject them to prosecution as terrorists.
Title IX: Improved Intelligence
This title requires the director of the Central Intelligence Agency to establish priorities for foreign intelligence collected under FISA and to ensure that information derived from electronic surveillance or searches is disseminated for efficient and effective intelligence purposes.
Title X: Miscellaneous
This title deals with a number of issues ranging from racial profiling, and the authorization of grants to states to deal with terrorist activities, to maintaining critical infrastructure in the event of an emergency.
Conclusion
The PATRIOT law is an attempt by the federal government to balance its legitimate role to protect the people of the United States from terrorist acts, with the limitations placed on government power by our Constitution. This tension is often difficult to resolve. HSLDA is thankful that in America this issue is receiving so much attention.
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