The USA Patriot Act and Individual Liberties: High-Level Summary

In the autumn of 2001, after the 9/11/2001 attacks, Congress passed the USA Patriot Act in order to, in the government’s view, improve the chances that any future terrorist acts could be prevented. The formal name is “UNITING AND STRNGTHENING AMERICA BY PROVIDING APPROPRIATE THE TOOLS TO INTERCEPT AND OBSTRUCT TERRORIS (U.S.A. PATRIOT ACT) ACT OF 2001”, and it may be found online at this location.[1] The ACLU also provides a summary discussion at this location.[2]

The act reduces the level of judicial supervision required for the government to investigate activities putatively related to terrorism. This includes wiretaps, access to financial records, and pen register surveillance (sender, receiver, subject without text) of some electronic communications. Apparently in some cases this has led to the use of “secret intelligence courts” to issue warrants, and at other times there have been no courts.  The law also allows criminal investigations without judicial supervision for “intelligence purposes.” Non-citizens may be jailed on very low levels of suspicion without charge. Former President Al Gore writes that Attorney General Ashcroft has authorized clandestine monitorings of attorney-client communications without prior judicial review, the secret inspection of financial and even medical (in spite of HIPAA) records, as well as running secret background checks of any person of interest,[3]  and undercover surveillance of public protests and demonstrations or even public meetings.[4]  ACLU spokesman Matt Howes reported on Dec 2, 2003 that the FBI had circulated a memo that “advocates spying on peaceful protesters and indicates that protesters who engage in civil disobedience or other disruptive acts should be treated like potential terrorists.” But the Ninth Circuit overturned a provision in a 1996 terrorism law that might punish unwitting contributors to fronts to terrorist groups, because it might ensnare someone like “a woman who buys cookies from a bake sale outside of her grocery store to support Kurdish refugees to find new homes.” Already, there have been cases of Americans with Muslim spouses having their bank accounts frozen by the FBI without their knowledge.[5]

In some cases, immigrants who have contributed to what they honestly or in good faith believed to be beneficial organizations promoting democracy have been deported. For example, Kurdish immigrant Ibrahim Parlak was deported in 2004, with the blessing of federal judge Elizabeth Hacker, for having once supported PKK, the Kurdistan Workers’ Party, KPNGRA-GEL. He had sought political asylum in the United States in 1992.

An enhancement called “Patriot Act II” was proposed in early 2003.[6] The government would no longer be required to disclose the identity of anyone held in a terror investigation. The government would be able to obtain library reading records and ISP records and could forbid the entity giving the information from disclosing the request. Americans could be extradited to foreign nations more easily. Terrorism’s definition would be expanded to go beyond large scale attacks like 9-11 to include smaller attempts to intimidate a civilian population, such as with the Muhammad-Malvo sniper slayings in 2002. In extreme cases, American citizens (even native born) could lose citizenship if they supported terrorist groups. Uncontrolled and unsupervised wiretap authority is extended for fifteen days after any major terrorist attack.[7] There are also controversies about “intelligence courts” and secrecy of some judicial proceedings, even for civilian suspects.

There is also a provision in a new intelligence bill expanding what kinds of businesses can be served “national security letters” to obtain financial records, to include brokers, insurance companies, and various dealers of valuables.

In fact, Mother Jones  [8]has provided some more details as to the exact provisions:

· Section 206 allows roving wiretaps of any phone or computer that a suspect might use, ensnaring “innocent bystanders.”

· Section 213 allows a “sneak and peek” search, where the person of interest is not notified until after the search.[9]

· Section 214 allows government secret surveillance of phone calls without warrant or probable cause, by claiming relevance to terrorism investigation

· Section 215 allows secret (and classified) subpoenas for searches of library records, video stores, and similar facilities for suspect’s purchases or use. It is not clear that this has actually been used.

· Section 216 allows Internet wiretaps (pen registers based on email addresses but not content) at a judge’s approval

· Section 218 allows secret courts to authorize secret searches

· Section 505 allows the Justice Department (or an FBI field office) to issue a “national security letter” for subpoenas similar to section 215

· Section 802 defines domestic terrorism as illegal acts “dangerous to human life” that seem to be intended to influence government policy by “intimidation or coercion” or gaining publicity for causes.

· Section 805 forbids giving assistance to government designated “foreign terrorist organizations.” This was declared overbroad and unconstitutional by a federal judge.

· Section 806 allows civil asset forfeiture without a hearing by the Justice Department from an alleged domestic terrorist.

The article in Mother Jones also discusses the “Catch 22” involved in declaring suspected terrorists (who can be American citizens) as unlawful combatants and holding them in military prisons without formal charge or access to attorneys,  

The government has proposed a “Red, Yellow, Green” (like the childhood playground game like “Mother May I”) profiling of airline passengers with data mining (a system to be called CAPPS II, “Computer-Assisted Passenger Prescreening System”) looking at credit reports, financial history, criminal convictions, and presence on terrorist watchlists. Delta Airlines will start this in April at a few unannounced airports. The risk is that citizens could be wrongly blacklisted (and lose jobs that require travel) without resource, because of errors on credit reports or even identity theft. But the new system is supposed to reduce the “yellows” to 5% from 15% of passengers.

A couple of scuffles over campus protests against military recruiters (who flout a university's non-discrimination rules over sexual orientation because of the "don't ask don't tell" policy and the Solomon Amendment), raise the issue of terror watchlists again. These incidents occurred at the University of California at Santa Cruz in April 2005 (a group Members of Students Against War) and at the New York University Law School (the group called OutLaw). Other anti-war protests include a Quaker meeting house at Lake Worth, FL, and the Broward Anti-War Coalition gathering at a recruiting station in Fort Lauderhill, FL, and a gathering outside a Halliburton office (Dick Cheney, remember) in Houston.. The Pentagon has been reported as accumulating lists of protestors (how they are identified by name, absent actual police arrests, is not totally clear) with operation code name TALON ("Threat and Observation Notice"). Sometimes contents of these lists may be available for security clearances, and sometimes they are even available to perspective landlords (that is not necessarily clear about this list, but it does apply to SDN and Blocked Persons lists), and a person denied employment or housing could not be told he or she is on the list. These government lists are getting dangerous. [9.5]

Associated with the Patriot Act in effect if not in the technicality of the law has been the detention of non-citizens of Muslim origin, practically all of him who have been found to have no connection to terrorist activities. Likewise, foreign nationals and at least two American citizens (for the first time in American history) have been held in military prisons as “unlawful combatants” without access to attorneys or formal charges.[10]  Most have had no conceivable connection to radical Islam or other terrorist incentives and in some cases have been somewhat physically abused even in this country (as at the Brooklyn detention center). The government has also proposed and then backed away from the idea of civilian domestic “snitch” programs.

Some authorities maintain that businesses and even individuals may be exposed to downstream liabilities from the Act. Besides “know thy customer” rules related to money laundering, owners of web servers and domains might be liable (with civil fines, shutdown injunctions and maybe even criminal prosecutions) if they allow their facilities to be used by hackers to augment a terrorist incident.[11] This would certainly be true if a business owner knew or reasonably believed that his facility was being compromised for such a purpose, but what if it happened without the business owner’s knowledge? The law could set up situations where controversial businesses or websites were heckled or harassed and threatened with litigation. If we have another major domestic attack, and particularly if we have an attack involving compromise of our electronic infrastructure or power grid,[12] we could then see increased political pressure to require owners of small businesses running their own servers (including ISP’s) to be licensed, in order to demonstrate they do not have criminal backgrounds and that they know how to protect the public from downstream effects by compromise of their computers by hackers.[13] We could even see this required some day of home computer users, just as is the case with driver’s licenses. (Libertarians, remember, do not approve of licensing, and see it as counter to economic opportunity for the disadvantaged.)  Another threat, not often discussed publicly, is the idea that terrorists could plant steganography hidden on a website after hacking into it, and a small business or individually owned domain (especially if the web server is run at home rather than on commercial shared hosting) that is always up could make an attractive target (again, a high-speed home computer not running a web site or major file sharing would not necessarily be always on).[14]

On May 9, 2004 CNN’s technical reporter Daniel Sieberg presented a story about the dangers of “wireless access point” devices. When home users set them up without proper security, these devices may become identified (from nearby computers or even computers on private airplanes flying in the area) as the source of illegal computer activity (posting child pornography, stealing classified documents, money laundering, passing information to terrorists or drug dealers, sending spam or propagating viruses or worms). It is not clear yet what the legal downstream liability (civil or even criminal) for the naïve user could be.

The Fox show Boston Public presented (on Dec. 5, 2003) presented an episode where an Arabic teenager is called in by the FBI after he looks at an Arabic language website supporting terrorism at a public school library computer.

The government maintains that individual American citizens (other than, perhaps, persons with close ties to overseas interests) have not been affected by the Patriot Act. It maintains that it already has heightened surveillance powers in conjunction with racketeering and drug trafficking, and that these activities have historically been connected to terrorists. It is true that very few non-Muslims seem to have been affected; the GLBT community seems almost protected in this climate because of its publicly non-violent reputation. The government probably would claim that there would not be time for normal judicial procedures if there were solid intelligence suggesting an imminent WMD attack, and that smaller asymmetric attacks (especially those aimed more at economic damage with readily available toxic substances or with computer hacking) require unusual surveillance procedures for interception due to their technically insidious nature. The catastrophic economic effects or casualties from some kinds of asymmetric attacks (life would not go on as normal after some of them) provides some justification for the government’s position. But impending hardship has always been a harbinger of more authoritative government.  The government also maintains that pen register traces off the Internet do not need search warrants because similar searches of phone numbers contacted in the past did not and were considered part of normal police work.

However, the new surveillance and detention powers do skirt several fundamental rights and explicit provisions in the Constitution, especially the Bill of Rights. Among these are, besides free speech and free expression of religious belief and of expressive or religious association in the First Amendment, many of the other provisions, such as the Fourth Amendment (freedom from unreasonable searches and seizures), the Fifth and Fourteenth Amendments (due process), the Sixth Amendment (right to a speedy trial), and Eight Amendment (freedom from excessive bail). I have already seen similar arguments discussed with respect to the rights of military servicemembers, now with the military gay ban and “don’t ask don’t tell” policy but in earlier times with respect to the draft. Democratic presidential candidates for 2004 like John Edwards are right in questioning why better judicial supervision cannot be sustained, or in asking if there are technological solutions that would enable judges to become involved efficiently during real emergencies. The Patriot Act, misapplied, has the capability of undermining the whole idea of separation of powers.

On January 23, 2004 a federal judge in Los Angeles (Audrey Collins) declared part of the Patriot Act unconstitutional. It was impermissible to bar giving expert advice to a designated terrorist organization if the advice consisted of non-violent means; the First Amendment only allows the government to intervene with consultation or speech threatens imminent lawless action. The case involved a group helping Kurds with self-determination within Turkey.[15]

The ACLU was forced to keep secret a lawsuit that it had filed 4/6/2004 contesting FBI methods of obtaining business records. The ACLU said, “It is remarkable that a gag provision in the Patriot Act kept the public in the dark about the mere fact that a constitutional challenge had been filed in court.”[16] This was a challenge to the FBI’s “National Security Letter” authority. The ACLU later reported that it had to trim its release of the suit. Finally, it was allowed to release the court schedule and judge (Victor Marrero) and a short paragraph concerning the disclosure requirements for national security letters.[17]

Web publishers must also be careful about a provision of the Patriot Act that criminalizes providing “expert advice” to terrorists. A jury in Idaho acquitted a Saudi national graduate student for auditing terrorists by running a website that would raise funds for terrorist organizations. The First Amendment will protect the expression of even radical religious ideology as long as it does not create the imminent threat of lawless action.[18]

Although journalists’ shield laws and confidentiality privileges given to reporters (“the Fourth Estate”) are technically not issue with the Patriot Act, the forthcoming jailing of New York Times reporter Judith Miller for refusing to reveal sources on information on a CIA leak (related to Saddam Hussein and WMD purchases that he may have attempted) on material she did not publish, readers should visit the New York Times op-ed on this subject, calling for federal shield laws.[19]

At the end of 2005, Congress (especially the Senate) was balking at extending much of the Patriot Act. At particular issue are provisions that allow wiretaps without a warrant, the sharing of information among agencies, and particularly the release of information about domain owners by ISPs, which could be liable if they gave out information without one after the Act expires. In some cases, government can begin an investigation about a domain without notifying the owner if the danger of major crimes (or acts of terror or sabotage on the Internet) is great enough.

The New York Times ran an editorial on Feb. 11, 2006, “Another Cave-In on the Patriot Act,” in which it notes that Congress allowed Section 215, the gag order rule on disclosure to a person that she is a subject of a search of financial, medical (even given HIPAA) or other records, and the vagueness of wording on national security letters, whether they could be used to obtain Internet search records without judicial supervision—checks and balances. Hoever, the Washington Post reports that the final revisions, likely to pass in March 2006, allow recipients to challenge FISA Section 215 nondisclosure requirements, and relieve public libraries of the requirement to respond to national security letters in most circumstances. [20]

See the review of Robert Greenwald’s ACLU film “Unconstitutional” The War on our Civil Liberties.”

ãCopyright 2003 by Bill Boushka. All rights reserved, subject to fair use.

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See results of a University of Connecticut study on public opinions about the First Amendment