Short after the terrorist attacks of September 11, 2001, at the urgings of the Bush administration, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act). The Patriot Act was notable not only for the haste in which it was drafted and enacted but also the comprehensive changes that it made to American criminal procedure, national security and information privacy laws. Originally, many of the provisions of the Patriot Act were set to “sunset” or automatically end if Congress did not reauthorize them. Congress however has consistently reauthorized most of its most far-reaching provisions. To be sure, in June 2015 after Section 215, one of the most controversial provisions of the Patriot Act which will be discussed below, lapsed, Congress passed the Freedom Act. The Freedom Act, technically speaking, restored much of Section 215’s authority and scope (Gallagher, 2015).
One of the most basic aspects of the Patriot Act that has had extensive implications in how it influences other areas of law is its definition on terrorism. The word terrorism does not have one, common definition. Indeed, even in the U.S., terrorism has been defined differently by the FBI, the Department of State and even under federal law. Accordingly, how terrorism is defined is very important in identifying who the law targets and what methods can be used to regulate those identified as terrorists. While terrorism has commonly been thought of as activities against American interests abroad often by or through foreign agents, the Patriot Act broadened the definition of terrorism to include domestic acts done by U.S. citizens (Baker and Kavanagh, 2005). Under Section 802, the Patriot Act, terrorism includes any activity in violation of a U.S. criminal law that is dangerous to human life and intended to, “intimidate” the public, “influence” the government through coercion, or “affect” the conduct of the government through “mass destruction, assassination or kidnapping” (Baker and Kavanagh, 2005). Additionally, the Patriot Act reclassified a number of traditional criminal violations as terrorist acts. Perhaps the most far-reaching of these changes was the inclusion of computer crimes as acts of terrorism (Podgor, 2002). Lastly, the Patriot Act made it a crime to help, harbor or support any organization or individual that the government deems a terrorist or terrorist organization. Support has been interpreted to include simply giving “training, expert advice or resources” (Holder v. Humanitarian Law Project, 2010) Accordingly, the significance of the Patriot Act’s definition of terrorism and what constitutes a terrorist act substantially expanded the number of people and activities that are subject to government scrutiny; scrutiny that was limited or non-existent prior to the Patriot Act. These provisions of the Patriot Act, most importantly, do not sunset.
Another basic but no less influential aspect of the Patriot Act is the changes that it has made to American criminal procedure laws. Under the Fourth and Fifth Amendments, Americans are guaranteed the right against “unreasonable search and seizure” and to be made to incriminate themselves. Traditionally, these rights have been protected through the requirements that the government must have a warrant or probable cause before they are permitted to search or seize a person or that a person is afforded the right to be silent. Under the Patriot Act, however, these rights have been substantially limited. In regards to the Fourth Amendment, for example, under Section 213, the government can delay informing targets of surveillance that a warrant has been issued against them allowing a criminal search. Commonly known as “sneak and peak” warrants, these authorizations allow the government to perform secret searches of people as long as a court is convinced that there is reasonable cause to that immediate notice that a search is being or about to be conducted might result in harm, injury or escape (Baker and Kavanagh, 2005). Section 213 does not sunset and can be used in terrorist or criminal investigations. As for the Fifth Amendment, under Section 505, the FBI was given the authority to obtain information about a person from a range of institutions such as their Internet service provider, phone company or bank if they believe that the information they want “is relevant to an authorized investigations to protect against international or clandestine intelligence activities” (Nieland, 2007). The FBI can obtain this information through a document known as a National Security Letter (NSL). NSL’s do not need a court approval and prohibit the information provider from either informing the target of the NSL from knowing that they are under surveillance or that the information provider has even been asked to provide any information. While Section 505 and NSLs have been challenged in court, the Supreme Court has yet to make a definitive ruling as to their constitutionality. Accordingly, they are still a key tool in FBI investigations.
Perhaps the most commonly known aspects of the Patriot Act are the changes and additions it has made to American information privacy and electronic surveillance laws. These changes included, for instance, modifications to existing regulations for pen register and trap and trace devices. Pen registers and trap and trace devices are used to provide information about what numbers a phone dials and what number a phone receives. Prior to the Patriot Act, the government was only allowed to operate the devices where the current allowing the activity had jurisdiction over the crime or act under investigation (Baker and Kavanagh, 2005). Section 216, however, allows a court to grant the government that authority to install the device across the nation. Furthermore, it interprets the functionality of the devices to include Internet traffic. Accordingly, under Section 216, not only can the government contact surveillance on anyone in the nation using pen registers and trap and trace devices but can also do so to investigate their Internet habits. Section 216 does not sunset. One of the most controversial aspects of the Patriot Acts, electronic surveillance powers is, as mentioned, Section 215.Prior to this year, Section 215 allowed the government to obtain “any tangible thing” from or about a person as long as the information that is sought is “in connection with” a terrorism investigation (Gallagher, 2015). As revealed by former National security Agency (NSA) contractor Edward Snowden, one of the results of Section 215 was to allow the NSA the authority to collect in bulk the phone records of nearly every single American. Section 215 lapses or sunset in June 2015. However, Congress then passed the Freedom Act which, in essence, still allowed for the obtaining of a broad range information about people as long as it is “in connection with” a terrorism investigation but how prohibits the NSA from collecting and storing the information in bulk (Gallagher, 2015). Instead, it require the information providers to store the information and that the government must apply for a warrant to access the information.
Gallagher, Sean. “How the end of Patriot Act provisions changes NSA surveillance.” Ars Technica. arstechnica.com, 02 Jun. 2015. Web. http://arstechnica.com/tech-policy/2015/06/how-the-end-of-patriot-act-provisions-changes-nsa-surveillance/
Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010). Web. 20 Jul. 2015. http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf
Nieland, Andrew E. “National Security Letters and the Amended Patriot Act. Cornell Law Review 92 (2007): 1201-1238. Web. 20 Jul. 2015 http://cornelllawreview.org/files/2013/02/Nieland.pdf
Patriot Debates: Experts Debate the USA Patriot Act. Eds. Stewart Baker and John Kavanagh. Washington, DC: American Bar Association. 2005. Print.
Podgor, Ellen S. “Computer Crimes and the USA Patriot Act. Computer Justice Magazine. americanbar.org, 2002. Web. 20 Jul. 2015 https://www.americanbar.org/publications/criminal_justice_magazine_home/crimjust_cjmag_17_2_crimes.html