Simone Lawson
The USA PATRIOT Act, often referred to as the Patriot Act, was passed less than two months after the 9/11 terrorist attacks. It was pitched as a necessary evil to prevent another national tragedy, but critics argue that it has led to unprecedented government overreach and the erosion of civil liberties. The Act has been criticised by organisations such as the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF) for violating the Fourth Amendment and enabling warrantless wiretaps, bulk data collection, and secret courts. With its provisions for increased surveillance and the collection of personal data, the Act has sparked a debate about the balance between national security and individual freedom, and whether the Act signals the end of constitutional rights as we know them.
| Characteristics | Values |
|---|---|
| NSLs | Violates the First and Fourth Amendments of the U.S. Constitution |
| Increased monitoring of suspects | Violates the defendant's constitutional rights |
| Warrantless wiretaps | Violates the Fourth Amendment |
| Expansion of court jurisdiction | Violates the Fourth Amendment |
| Surveillance state | Unconstitutional, un-American, and unacceptable |
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What You'll Learn
The Patriot Act's expansion of court jurisdiction
The USA PATRIOT Act was introduced to deter and punish terrorist acts in the United States and worldwide, as well as to strengthen law enforcement investigatory tools. The Act has been criticised by the Electronic Privacy Information Center (EPIC) as being unconstitutional, particularly in its ability to intercept the private communications of law-abiding citizens.
The Act's expansion of court jurisdiction has been a particular point of contention. Rule 41(a) of the Federal Rules of Criminal Procedure was amended to include the following:
> "...in an investigation of domestic terrorism or international terrorism (as defined in section 2331 of title 18, United States Code), by a Federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search of property or for a person within or outside the district."
This amendment allows for the nationwide service of search warrants, which has been criticised by the Electronic Frontier Foundation (EFF). They argue that agencies will be able to 'shop' for judges who are biased towards law enforcement and are more likely to approve search warrants, even if they do not meet the strict requirements of the Fourth Amendment to the Constitution.
The EFF also believes that this expansion of jurisdiction reduces the likelihood of smaller ISPs or phone companies challenging warrants in court, as they may lack the resources to appear before a distant court. They argue that only the communications provider will be able to challenge the warrant, as only they will know about it, and many warrants are issued ex parte, meaning the target is not present.
The Act's expansion of jurisdiction has also been applied to foreign persons, with district courts being granted jurisdiction over any foreign person or financial institution authorised under the laws of a foreign country, provided that certain conditions are met.
In addition, the Act has been used to facilitate the government's ability to seize illicit funds from individuals and entities located in foreign countries. This is achieved by authorising the Attorney General or Secretary of the Treasury to issue summons or subpoenas to any foreign bank with a correspondent account in the US.
While the USA PATRIOT Act has been criticised for its expansion of court jurisdiction, some legal scholars, such as Orin Kerr, have defended certain amendments. Kerr argues that the amendment regarding voicemail stored with service providers made sense and was reasonable and sensible.
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Violation of the Fourth Amendment
The USA PATRIOT Act, whose name is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism", has been criticised for violating the Fourth Amendment of the US Constitution. The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures".
The Act's expansion of court jurisdiction to allow the nationwide service of search warrants has been criticised by the Electronic Frontier Foundation (EFF) as violating the Fourth Amendment. They argue that agencies will be able to 'shop' for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, using only those judges least likely to say no—even if the warrant doesn't satisfy the strict requirements of the Fourth Amendment. The EFF also criticises the lower standard applied to wiretaps, arguing that it "gives the FBI a 'blank check' to violate the communications privacy of countless innocent Americans".
The American Civil Liberties Union (ACLU) has also challenged the use of National Security Letters (NSLs) in court, arguing that they violate the Fourth Amendment's prohibition against unreasonable searches and seizures. They argue that it is impossible for a target to legally oppose a government action they do not know about, and that the gag order prohibits the third parties that hold the information from consulting with their attorneys.
In addition, Section 213 of the USA PATRIOT Act, which covers "sneak and peek" search warrants, has been criticised as unconstitutional under the Fourth Amendment. This section allows law enforcement officers to search a home or business and seize material without the knowledge or consent of the owner or occupant, and there is no specified time frame for when the target must be notified.
The USA PATRIOT Act expired in mid-2015 and has since been repackaged under the USA Freedom Act, which selectively re-authorised the Patriot Act while banning the bulk collection of data and limiting the government's data collection. However, the Act's impact on the Fourth Amendment remains a subject of debate, with critics arguing that it gave the government too much power to intrude into the private lives of citizens.
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Unconstitutionality of NSLs
The USA PATRIOT Act, passed in 2001, has been criticised for its unconstitutionality, particularly regarding the use of National Security Letters (NSLs). NSLs are a tool used by the FBI to request information relevant to national security investigations from a wide range of entities, including electronic communications service providers, banks, and other financial institutions.
The use of NSLs has been deemed unconstitutional for several reasons. Firstly, there is the issue of gag orders. Gag orders prohibit NSL recipients from disclosing that the FBI has requested information from them. In 2008, a federal appellate court ruled that the FBI's imposition of gag orders without judicial review was unconstitutional. This led to the proposal of a "reciprocal notice" policy, where the FBI would inform NSL recipients of their right to challenge gag orders. Despite this, NSLs are still criticised as a "troublingly expansive form of government surveillance" with "lax requirements" that can lead to serious abuses.
Another issue is the nondisclosure requirement, which forbids NSL recipients from disclosing that the FBI has requested information. This has been repeatedly challenged in court, with mixed rulings on its constitutionality. In Doe v. Gonzales, the nondisclosure provision was initially ruled unconstitutional as an infringement of free speech, but this decision was later vacated. The USA FREEDOM Act of 2015 requires the FBI to review and terminate NSL gag orders when they no longer serve their purpose, but the FBI has been criticised for failing to do so in the vast majority of cases, demonstrating the continued unconstitutionality of NSL statutes.
The expansion of court jurisdiction under the Patriot Act has also been criticised as potentially violating the Fourth Amendment. The Electronic Frontier Foundation (EFF) argues that agencies will be able to 'shop' for judges who are biased towards law enforcement, reducing the likelihood that smaller companies will challenge warrants in court. This, they argue, gives the FBI a 'blank check' to violate the communications privacy of innocent Americans.
The ACLU has also challenged the constitutionality of NSLs, arguing that they violate the First and Fourth Amendments because there is no way to legally oppose an NSL subpoena in court, and because the gag provision prevents clients from informing their attorneys about the order. The court agreed with the ACLU, declaring the law unconstitutional.
In conclusion, the use of NSLs under the Patriot Act has been widely criticised for its unconstitutionality, with concerns raised over gag orders, nondisclosure requirements, and the expansion of court jurisdiction. Despite some efforts to address these issues, many critics argue that NSLs continue to violate the constitutional rights of Americans.
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Increased monitoring of suspects
The USA PATRIOT Act, or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, was enacted in the aftermath of the September 11, 2001, terrorist attacks. The legislation has significantly tilted the balance between security and privacy towards security, allowing the government to access many types of information about private citizens.
One of the most notable provisions of the Act is its expansion of court jurisdiction to allow the nationwide service of search warrants. This has been criticised by the Electronic Frontier Foundation (EFF), which believes that it enables agencies to 'shop' for judges who are biased towards law enforcement with regard to search warrants, even if the warrant does not satisfy the strict requirements of the Fourth Amendment to the Constitution. This reduces the likelihood of smaller ISPs or phone companies challenging warrants in court, as they may lack the resources to appear before a distant court.
The Act has also been criticised for lowering the standard for intelligence surveillance warrants, which could be used to detect ordinary criminal activity that would not meet the probable cause standard required for a criminal warrant. As long as gathering evidence for an investigation is a significant purpose of the warrant, it does not need to be the only purpose. This means that law enforcement can use the lower standard for intelligence warrants to conduct searches that previously would have required a criminal warrant.
The EFF has further criticised the Act, stating that the lower standard applied to wiretaps "gives the FBI a 'blank check' to violate the communications privacy of countless innocent Americans". In one case, a nightclub owner was linked to a drug trafficking stash house via a law enforcement GPS tracking device attached to his car without a warrant, causing a serious conviction obstacle for federal prosecutors in court. The Electronic Privacy Information Center (EPIC) shares similar concerns, stating that it is unconstitutional for "the private communications of law-abiding American citizens [to] be intercepted incidentally".
In response to these criticisms, Legal Scholar Orin Kerr has defended the Act, arguing that the pre-existing ECPA rules were strange and made little sense, making the amendment made by the Act reasonable and sensible.
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The Act's rebranding of tyranny as patriotism
The USA PATRIOT Act was passed less than two months after the 9/11 terrorist attacks. It was pitched to the American public as a necessary evil to root out terrorists and prevent another similar attack. However, critics argue that the Act is a cunning bait-and-switch maneuver, exploiting the vulnerability of the American people in the aftermath of 9/11 to disguise an Orwellian surveillance framework as national defense.
The Act's provisions include the expansion of court jurisdiction to allow the nationwide service of search warrants, the use of NSLs by Special Agents in charge of Bureau field offices, warrantless wiretaps, bulk data collection, secret courts, metadata hoarding by the NSA, and deals with major tech companies. These measures have been criticized by the ACLU, EFF, and EPIC as unconstitutional and in violation of the First, Fourth, and Fifth Amendments.
The Act's critics argue that it has eviscerated the Fourth Amendment, with the government now having the ability to scan emails, flag phone calls, save texts, and track browsing histories. They claim that the Act has gutted the freedoms that made the country great, and that the choice presented to the American people—safety or liberty—was a false dichotomy.
The Act's name, the "Patriot Act," is indicative of this alleged rebranding of tyranny as patriotism. By invoking patriotism, the Act played on the grief, trauma, and love of country felt by Americans in the wake of 9/11. This emotional appeal was used to justify the expansion of government surveillance powers, which many argue are unconstitutional and a threat to the freedoms that the Act purportedly seeks to protect.
In conclusion, the Patriot Act's rebranding of tyranny as patriotism is a central criticism of the legislation. The Act's proponents framed it as a necessary sacrifice of liberty for the sake of safety and national defense. However, critics argue that this framing is disingenuous, and that the Act's true purpose is to consolidate power and enable tyranny, under the guise of patriotism and national security.
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Frequently asked questions
The Patriot Act is a piece of US legislation that was passed in the aftermath of the 9/11 terrorist attacks. It expanded the government's powers in the name of national security, including the use of warrantless wiretaps, bulk data collection, and the expansion of court jurisdiction for search warrants.
The Patriot Act has been criticised for violating the Fourth Amendment of the US Constitution, which protects against unreasonable searches and seizures. The Act's expansion of court jurisdiction and warrantless wiretapping powers have been particularly controversial, with some arguing that it eviscerates the Fourth Amendment.
The Patriot Act has been criticised for enabling government spying and the collection of personal data, including emails, phone calls, texts, and browsing history. This has raised concerns about the potential for government overreach and the invasion of privacy.
Critics argue that the Patriot Act has contributed to the creation of a surveillance state, with the government and intelligence agencies monitoring and collecting data on US citizens. This has been characterised as a form of tyranny, with freedom and liberty being sacrificed in the name of national security.
Yes, there have been legal challenges to the Patriot Act. In one case, the US Supreme Court overturned a conviction that was based on evidence obtained through warrantless GPS tracking, finding that the monitoring of suspects violated the defendant's constitutional rights. Additionally, the ACLU has successfully challenged the use of NSLs by special agents, arguing that they violate the First and Fourth Amendments.
