Eleanor Finch
The USA PATRIOT Act, introduced less than a week after the September 11, 2001 attacks, expanded surveillance for law enforcement. It was passed with little debate or opposition, with many congressional representatives complaining that they didn't have time to read the bill. The Act has been criticised for authorising unprecedented surveillance of American citizens and individuals worldwide without traditional civil liberties safeguards. The American Civil Liberties Union (ACLU) has challenged the constitutionality of the Act, specifically its 'National Security Letter' gag provisions, which allow the government to obtain sensitive customer records from Internet Service Providers without judicial oversight. Federal courts have struck down portions of the Act as unconstitutional, finding that it violates free speech rights and the right to be free from unreasonable searches. The debate continues as to whether the USA PATRIOT Act is constitutional or unconstitutional.
| Characteristics | Values |
|---|---|
| Constitutionality | Unconstitutional |
| Reason | Violates free speech rights under the First Amendment and the right to be free from unreasonable searches under the Fourth Amendment |
| Year | 2001 |
| Date Passed | Less than a week after the September 11, 2001 attacks |
| Opposition | American Civil Liberties Union (ACLU), New York Civil Liberties Union (NYCLU), EPIC, Connecticut librarians, Internet Archive |
| Supporters | Bush administration, Attorney General John Ashcroft |
| Affected Parties | Internet Service Providers, Amazon, eBay, FBI |
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What You'll Learn
The USA PATRIOT Act's authorization of unprecedented surveillance
The USA PATRIOT Act, passed in 2001, authorized unprecedented surveillance of American citizens and individuals worldwide. The act was passed in the wake of the September 11 attacks, with little debate or opposition. The act expanded surveillance for law enforcement in several ways.
Firstly, the act expanded domestic and international wiretapping and pen register monitoring. This included the authority to request nationwide search warrants and issue nationwide surveillance orders, as well as the ability to collect the phone records of millions of Americans. Secondly, the act expanded the government's ability to access electronic communications, such as voicemail and email. This was done by amending Title III and the Stored Communications Access Act, allowing the government to obtain electronically stored voicemail communications through a search warrant rather than a wiretap order.
Thirdly, the act expanded the government's ability to conduct secret searches, eliminating the requirement for "contemporaneous" notice when searching or seizing a person's property. This included the ability to search private property without notice to the owner and to access personal records held by third parties, such as internet service providers and other businesses. Fourthly, the act expanded the use of trap and trace searches, which collect addressing information about the origin and destination of communications rather than their content.
Finally, the act expanded the government's ability to gain access to personal financial information and student information without any suspicion of wrongdoing, simply by certifying that the information is likely to be relevant to an ongoing criminal investigation. The act also included a gag provision that prohibited individuals or organizations from disclosing the search to anyone, preventing individuals from challenging illegitimate searches.
The USA PATRIOT Act has been controversial, with some arguing that it violates civil liberties and constitutional rights, including the right to privacy, free speech, and freedom from unreasonable searches and seizures. In 2007, a federal court struck down a portion of the act as unconstitutional, finding that it gave the government unchecked authority to conduct surveillance and violate free speech rights.
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The Act's violation of the Fourth Amendment
The USA PATRIOT Act, introduced less than a week after the September 11, 2001 attacks, expanded surveillance for law enforcement. The Act was passed with little debate or opposition, despite many provisions having been proposed before to substantial criticism.
The Act has been criticised for violating the Fourth Amendment, which protects against unreasonable searches and seizures. Section 213 of the Act, for example, covers "sneak and peek" search warrants, which allow law enforcement officers to search a home or business and seize material without the knowledge or consent of the owner or occupant. There is no specified time by which the FBI must notify the target, and critics have charged that these delays in notification are unconstitutional.
Section 215, nicknamed "the library provision", allows the FBI to ask the Foreign Intelligence Surveillance Act (FISA) court to compel the sharing of "any tangible thing" related to a terrorism investigation. This includes books, business documents, tax records, and library check-out lists. The Act also expands the government's ability to gain access to personal financial information and student information without any suspicion of wrongdoing, simply by certifying that the information is likely to be relevant to an ongoing criminal investigation.
The American Civil Liberties Union (ACLU) and other groups have expressed fears that the government would use this new power to circumvent the stricter probable-cause standard for criminal investigations by citing a foreign intelligence interest. The ACLU has also challenged National Security Letters (NSLs) in court, arguing that they violate the Fourth Amendment's prohibition against unreasonable searches and seizures.
In 2007, a federal court struck down a portion of the Patriot Act as unconstitutional, finding that it violated free speech rights under the First Amendment as well as the right to be free from unreasonable searches under the Fourth Amendment.
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The Act's violation of free speech
The USA PATRIOT Act, introduced less than a week after the September 11, 2001 attacks, authorised unprecedented surveillance of American citizens and individuals worldwide without traditional civil liberties safeguards. The Act expanded the government's ability to access personal information without any suspicion of wrongdoing, simply by claiming that the information was likely relevant to an ongoing criminal investigation.
The Act's provision for "National Security Letters" gave the government unchecked authority to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. This was deemed by a federal court to violate free speech rights under the First Amendment, as well as the right to be free from unreasonable searches under the Fourth Amendment.
The court also found a broad gag provision in the law to be an "unconstitutional prior restraint" on free speech. This gag provision was so broad that it could be used to obtain customer names from websites or a political organisation's membership list. The ACLU, which brought the challenge, noted that they had laboured under a broad gag order that sought to censor even innocuous, non-sensitive information about the case.
The ruling to strike down Section 505 of the Patriot Act was the first of its kind, rejecting the government's increasing move towards secret and coercive investigatory tactics in the post-9/11 environment. Judge Marrero's decision enjoined the government from issuing National Security Letters or enforcing the gag provision, stating that "democracy abhors undue secrecy".
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The Act's 'gag provision'
The USA PATRIOT Act was introduced less than a week after the September 11, 2001 attacks and was passed with little debate or opposition. It was signed into law by President George W. Bush in October 2001. The Act was designed to expand the government's powers to surveil, investigate, and detain suspected terrorists.
One of the most controversial aspects of the Act is in Title V, which relates to National Security Letters (NSLs). An NSL is a form of administrative subpoena used by the FBI, and other government agencies, to demand that an entity or organization turn over records and data pertaining to individuals. They require no probable cause or judicial oversight and also contain a gag order, preventing the recipient from disclosing that the letter was ever issued.
The Act's gag provision has been challenged multiple times by the ACLU and other civil liberties organizations. In September 2004, Judge Victor Marrero of the U.S. District Court for the Southern District of New York struck down the NSL statute, ruling that the FBI could not constitutionally demand sensitive records without judicial review and that permanent gag orders violated the First Amendment guarantee of free speech. The government appealed, and Congress amended the NSL provision before the court issued a final decision.
In 2008, a federal appeals court upheld a decision striking down provisions of the Act that prevented NSL recipients from speaking out about the secret records demands, finding that the statute's gag provisions violated the First Amendment. The court rejected the Bush administration's position that the courts should rubber-stamp these gag orders and upheld the critical check of judicial review.
The Act's gag provision has been criticized for its broad scope, which could effectively be used to obtain customer names from websites or a political organization's membership list. The ACLU and other organizations have worked to lift gag orders and challenge the government's power to silence citizens who wish to contribute to public debate.
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The Act's expansion of FISA
The USA PATRIOT Act, or Patriot Act, was introduced less than a week after the September 11, 2001 attacks and swiftly passed with little debate or opposition. The Act expanded the surveillance powers of law enforcement agencies, including the Federal Bureau of Investigation (FBI).
One of the key ways in which the Patriot Act expanded surveillance was by broadening the reach of the Foreign Intelligence Surveillance Act (FISA). FISA authorizes the monitoring of phone calls and other communications without a warrant from a regular federal court. Instead, FISA created its own court to authorize intelligence surveillance, ruling in secret and without oversight.
The Patriot Act amended FISA by removing the requirement that gaining foreign intelligence be the primary purpose of an investigation. This meant that law enforcement agencies could more easily access electronic communications and conduct wiretapping and pen register monitoring. The Act also expanded the government's ability to obtain personal information, such as financial records and student information, without any suspicion of wrongdoing.
While the Patriot Act enhanced the government's surveillance capabilities, it has also been subject to legal challenges on constitutional grounds. In 2007, a federal court struck down a portion of the Act, finding that it violated free speech rights under the First Amendment and the right to be free from unreasonable searches under the Fourth Amendment. The court rejected the government's increasing use of secret and coercive investigatory tactics in the post-9/11 environment.
Despite these concerns, the Patriot Act has continued to evolve and be reauthorized, with the House of Representatives voting in 2024 to reauthorize a new version of FISA Section 702, further expanding government surveillance powers.
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Frequently asked questions
The USA PATRIOT Act, or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, was introduced less than a week after the September 11, 2001 attacks. It expanded surveillance for law enforcement and federal funding.
The USA PATRIOT Act has been deemed unconstitutional by some due to its authorisation of unprecedented surveillance of American citizens and individuals worldwide without traditional civil liberties safeguards. The Act has been criticised for expanding domestic and international wiretapping, access to electronic communications, and the ability to obtain personal information without suspicion of wrongdoing.
The American Civil Liberties Union (ACLU) and the New York Civil Liberties Union (NYCLU) have challenged the USA PATRIOT Act in court multiple times. In 2007, Judge Victor Marrero of the Southern District of New York struck down Section 505 of the Act on the grounds that it violated free speech rights under the First Amendment and the right to be free from unreasonable searches under the Fourth Amendment.
In 2007, a federal court struck down a portion of the USA PATRIOT Act, specifically the provision that gave the government unchecked authority to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers without judicial oversight. This ruling was upheld by a federal appeals court in 2008, which found that the statute's gag provisions violated the First Amendment.
The USA PATRIOT Act has been criticised for infringing on civil liberties and enabling mass surveillance. The Act has also been criticised for being passed without sufficient debate or opposition, with many congressional representatives complaining that they did not have time to read the bill before voting.
