Senior Associate, Corporate & Compliance Solutions, Thomson Reuters
The enactment of the USA-Patriot Act in the wake of the 9/11 incident has caused much furor. However, we cannot afford to be short sighted in our analysis by focusing excessively on the threats posed to the individual liberties and notions of privacy. In spite of the aggressive intrusions in various aspects, the law also comes with adequate safeguards and rests on a solid foundation of accountability. If the administration remains careful regarding certain aspects of the implementation process, this piece of legislation can become an effective tool in combating terrorism at local as well as global level.
Keywords: USA-Patriot Act, Terrorism, National Security, Immigrant, Alien, Civil Liberties, Civil Rights, Computer Crimes.
The USA-Patriot Act - How a Nation Stands to Benefit
An onerous effort was undertaken by the United States government in the wake of September 11, 2001, to plug gaps in domestic security. The disaster led to a breakdown of distinction between international and domestic terrorism. Terrorism was no longer seen as a local but a global threat to internal security. The endeavor resulted in the enactment of the USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). This law provides a number of changes for the existing set up, especially relaxations on search warrant and wiretap procedures.
Section 203 of the Act provides enables enforcement to share grand jury information. This provision also authorizes the exchange of information derived through physical or electronic surveillance.
Section 411 the Act broadens the group of immigrants who can be deported. Section 411 uses “terrorist activity” to include any act that involving use of a weapon or dangerous device. The section includes groups that have never earlier been designated as "terrorist" if they qualify the criterion of two or more individuals, organized or otherwise, who engage in the specified activities. Section 411 casts the burden of demonstrating that the alien person did not know that the act would facilitate the group's terrorist activity. Section 411 prohibits deportation for solicitation of funds or membership to an erstwhile undesignated organization, however, the section does not bar retrospective application. Section 412 provides that the Attorney General or Deputy Attorney General may certify an alien as a terrorist if he or she forms an opinion that such alien is engaged in activities which threaten national security. Such determination will follow mandatory detention of the certified person and cannot be reviewed. The suspected individual may be detained for seven days without any specific charges.
Section 1006 of the Act bars entry of an alien who is considered by a consular officer or the Attorney General as a potential candidate to engage in any offense connected to money laundering.
Section 413 of the Act states that Department records can be furnished to a foreign government for preventing, investigating, or penalizing infringing acts. Previously, these records were confidential and could only be used for the purpose of enforcement. Section 403 states that the Department of State and the Immigration and Naturalization Service shall have access to FBI criminal history records for all immigration applicants. The provision also lays down requirement for development and certification within two years for ascertaining the credentials of applicants. In addition, section 414 mandates implementation of integrated entry and exit data system for tracking movements. In terms of relief, Sections 424 through 428 states benefits for people impacted by the inability to commute or by death or injury due to the 9/11 tragedy.
Section 504 deals with sharing of information and consultation between law enforcement and intelligence agencies. Section 703 sanctioned 50 million dollars for fiscal year 2002 and 100 million dollars in fiscal year 2003 to build this sharing capability.
The USA-Patriot Act brings several benefits along with its enactment.
Though not directly targeted towards cyber crimes, the Patriot Act includes amendments to numerous procedures that will help in prosecuting digital activities. For instance, under certain conditions, grand jury information can now be disseminated and records of customers can be revealed. The law expands the circumstances under which internet service providers can now communicate to the law enforcement any suspicious information which comes to their notice.
The Patriot Act significantly increases the penalties for persons causing damage to protected computers. These penalties are not confined to completed offenses, and also include attempts within their scope.
Intelligence agencies will now be able to collect data about groups and individuals indulging in terrorism and share this information with enforcement. This in turn will provide context and connections for detailed investigation. Intelligence bodies will also need to provide pre-emptive information necessary for aiding criminal prosecution.
The new regime would also entail transformations in an intelligence culture characterized by rigorous limits on information sharing and highly conditioned access. The change in outlook is a much needed one for developing a trustworthy framework to combat terrorism. A rigid set up is never conducive to fight problems which threaten and injure at a global scale.
The increased powers of surveillance conferred on law enforcement agencies has raised concerns regarding protection of civil liberties of the American citizens. Intrusive surveillance is majorly associated with secret police arms of oppressive dictatorships. It represents a marked shift in the balance of power between the ruler and the ruled. However, the most effective remedy against the potential abuse of civil liberties may lie within the law itself. Section 215 for instance codifies the necessity of application for a foreign intelligence warrant from a neutral federal magistrate. Also, the Attorney General remains accountable to the House and Senate Intelligence Committees and the Judiciary Committees. Section 1001 obligates the Inspector General of the Department of Justice to appoint an official to review information and receive complaints against abuse of civil rights. The official will also report to the Congress on such abuses.
Thus, in spite of the invasive nature of the enforcing provisions and the rabid attack on civil liberties of American citizens, the law offers delicate checks and balances to restore parity within the mayhem of international terrorism. However, regardless of the noble intentions to augment national security, the law must strive to achieve the correct balance in safeguarding civil rights and liberties, on which hinges the public sentiment and popularity. The government must also work efficiently to ensure that enforcement and intelligence are on the same radar when it comes to sharing of information and laying the foundations of a cooperative framework. If these issues are addressed at the very outset, the law will be able to operate on the solid foundations of legitimacy and effectively serve its intended purpose.
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Podgor, E. S. (2002). COMPUTER CRIMES AND THE USA PATRIOT ACT. Criminal Justice, 1 & 2.