The USA PATRIOT Act, commonly known as the "patriot act", is a statute enacted by the United States Government and signed into law by President George W. Bush on October 26, 2001. The contrived acronym stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law Pub.L. 107-56).

The Act increases the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial, and other records; eases restrictions on foreign intelligence gathering within the United States; expands the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and broadens the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expands the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.

The Act was passed by wide margins in both houses of Congress and was supported by members of both the Republican and Democratic parties. Opponents of the law have criticized its authorization of indefinite detentions of immigrants; searches through which law enforcement officers search a home or business without the owner’s or the occupant’s permission or knowledge; the expanded use of National Security Letters, which allows the FBI to search telephone, e-mail, and financial records without a court order; and the expanded access of law enforcement agencies to business records, including library and financial records. Since its passage, several legal challenges have been brought against the act, and Federal courts have ruled that a number of provisions are unconstitutional.

Many of the act's provisions were to sunset beginning December 31, 2005, approximately 4 years after its passage. In the months preceding the sunset date, supporters of the act pushed to make its sunsetting provisions permanent, while critics sought to revise various sections to enhance civil liberty protections. In July 2005, the U.S. Senate passed a reauthorization bill with substantial changes to several sections of the act, while the House reauthorization bill kept most of the act's original language. The two bills were then reconciled in a conference committee that was criticized by Senators from both the Republican and Democratic parties for ignoring civil liberty concerns.[1] The bill, which removed most of the changes from the Senate version, passed Congress on March 2, 2006, and was signed into law by President George W. Bush on March 9 and 10, 2006.

Background
See also: History of the USA PATRIOT Act

The PATRIOT Act[2] has made a number of changes to U.S. law. Key acts changed were the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1986 (ECPA), the Money Laundering Control Act of 1986 and Bank Secrecy Act (BSA), as well as the Immigration and Nationality Act. The Act itself came about after the September 11 terrorist attacks on New York City and the Pentagon. After these attacks, Congress immediately started work on several proposed antiterrorist bills, before the Justice Department finally drafted a bill called the Anti-Terrorism Act of 2001. This was introduced to the House as the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001, and was later passed by the House as the Uniting and Strengthening America (USA) Act (H.R. 2975) on October 12.[3] It was then introduced into the Senate as the USA Act of 2002 (S. 1510) [4] where a number of amendments were proposed by Senator Russ Feingold,[5][6][7][8] all of which were passed. The final bill, the USA PATRIOT Act was introduced into the House on October 23 and incorporated H.R. 2975, S. 1510 and many of the provisions of H.R. 3004 (the Financial Anti-Terrorism Act).[9] It was vehemently opposed by only one Senator, Russ Feingold, who was the only Senator to vote against the bill. Senator Patrick Leahy also expressed some concerns.[10] However, many parts were seen as necessary by both detractors and supporters.[11][12][13] The final Act included a number of sunsets which were to expire on December 31, 2005.

Due to its controversial nature, a number of bills were proposed to amend the USA PATRIOT Act. These included the Protecting the Rights of Individuals Act,[14] the Benjamin Franklin True Patriot Act,[15] and the Security and Freedom Ensured Act (SAFE),[16] none of which passed. In late January 2003, the founder of the Center for Public Integrity, Charles Lewis, published a leaked draft copy of an Administration proposal titled the Domestic Security Enhancement Act of 2003.[17] This highly controversial document was quickly dubbed "PATRIOT II" or "Son of PATRIOT" by the media and organizations such as the Electronic Frontier Foundation.[18] The draft, which was circulated to 10 divisions of the Department of Justice,[19] proposed to make further extensive modifications to extend the USA PATRIOT Act.[20] It was widely condemned, although the Department of Justice claimed that it was only a draft and contained no further proposals.[21]

Titles
Titles I and X: Miscellaneous provisions
Main articles: USA PATRIOT Act, Title I and USA PATRIOT Act, Title X

Title I authorizes measures to enhance the ability of domestic security services to prevent terrorism. The title established a fund for counter-terrorist activities and increased funding for the FBI's Technical Support Center. The military was authorized to provide assistance in some situations that involve weapons of mass destruction when so requested by the Attorney General. The National Electronic Crime Task Force was expanded, along with the President's authority and abilities in cases of terrorism. The title also condemned the discrimination against Arab and Muslim Americans that happened soon after the September 11 terrorist attacks. The impetus for many of the provisions came from earlier bills, for instance the condemnation of discrimination was originally proposed by Senator Tom Harkin (D-IA) in an amendment to the Combatting Terrorism Act of 2001, though in a different form. It originally included "the prayer of Cardinal Theodore McCarrick, the Archbishop of Washington in a Mass on September 12, 2001 for our Nation and the victims in the immediate aftermath of the terrorist hijackings and attacks in New York City, Washington, D.C., and Pennsylvania reminds all Americans that 'We must seek the guilty and not strike out against the innocent or we become like them who are without moral guidance or proper direction.'[22] Further condemnation of racial vilification and violence is also spelled out in Title X, where there was condemnation of such activities against Sikh Americans, who were mistaken for Muslims after the September 11th terrorist attack.[23]

Title X created or altered a number of miscellaneous laws that didn't really fit into the any other section of the USA PATRIOT Act. Hazmat licenses were limited to drivers who pass background checks and who can demonstrate they can handle the materials.[24] The Inspector General of the Department of Justice was directed to appoint an official to monitor, review and report back to Congress all allegations of civil rights abuses against the DoJ.[25] It amended the definition of "electronic surveillance" to exclude the interception of communications done through or from a protected computer where the owner allows the interception, or is lawfully involved in an investigation.[26] Money laundering cases may now be brought in the district the money laundering was committed or where a money laundering transfer started from.[27] Aliens who committed money laundering were also prohibited from entering the U.S.[28] Grants were provided to first responders to assist them with responding to and preventing terrorism.[29] US$5,000,000 was authorized to be provided to the Drug Enforcement Administration (DEA) to train police in South and East Asia.[30] The Attorney General was directed to commission a study on the feasibility of using biometric identifiers to identify people as they attempt to enter the United States, and which would be connected to the FBI's database to flag suspected criminals.[31] Another study was also commissioned to determine the feasibility of providing airlines names of suspected terrorists before they boarded flights.[32] The Department of Defense was given temporary authority to use their funding for private contracts for security purposes.[33] The last title also created a new Act called the Crimes Against Charitable Americans Act[34] which amended the Telemarketing and Consumer Fraud and Abuse Prevention Act to require telemarketers who call on behalf of charities to disclose the purpose and other information, including the name and mailing address of the charity the telemarketer is representing.[35] It also increased the penalties from one year imprisonment to five years imprisonment for those committing fraud by impersonating a Red Cross member.[36]

Title II: Surveillance procedures
Main article: USA PATRIOT Act, Title II

Title II is titled "Enhanced Surveillance Procedures", and covers all aspects of the surveillance of suspected terrorists, those suspected of engaging in computer fraud or abuse, and agents of a foreign power who are engaged in clandestine activities. It primarily made amendments to FISA, and the ECPA, and many of the most controversial aspects of the USA PATRIOT Act reside in this title. In particular, the title allows government agencies to gather "foreign intelligence information" from both U.S. and non-U.S. citizens, and changed FISA to make gaining foreign intelligence information the significant purpose of FISA-based surveillance, where previously it had been the primary purpose.[37] The change in definition was meant to remove a legal "wall" between criminal investigations and surveillance for the purposes of gathering foreign intelligence, which hampered investigations when criminal and foreign surveillance overlapped.[38] However, that this wall even existed was found by the Federal Surveillance Court of Review to have actually been a long-held misinterpretation by government agencies. Also removed was the statutory requirement that the government prove a surveillance target under FISA is a non-U.S. citizen and agent of a foreign power, though it did require that any investigations must not be undertaken on citizens who are carrying out activities protected by the First Amendment.[39] The title also expanded the duration of FISA physical search and surveillance orders,[40] and gave authorities the ability to share information gathered before a federal grand jury with other agencies.[41]

The scope and availability of wiretapping and surveillance orders were expanded under Title II. Wiretaps were expanded to include addressing and routing information to allow surveillance of packet switched networks[42] — the Electronic Privacy Information Center (EPIC) objected to this, arguing that it does not take into account email or web addresses, which often contain content in the address information.[43] The Act allowed any district court judge in the United States to issue such surveillance orders[42] and search warrants for terrorism investigations.[44] Search warrants were also expanded, with the Act amending Title III of the Stored Communications Access Act to allow the FBI to gain access to stored voicemail through a search warrant, rather than through the more stringent wiretap laws.[45]

Various provisions allowed for the disclosure of electronic communications to law enforcement agencies. Those who operate or own a "protected computer" can give permission for authorities to intercept communications carried out on the machine, thus bypassing the requirements of the Wiretap statute.[46] The definition of a "protected computer" is defined in 18 U.S.C. § 1030(e)(2) and broadly encompasses those computers used in interstate or foreign commerce or communication, including ones located outside the United States. The law governing obligatory and voluntary disclosure of customer communications by cable companies was altered to allow agencies to demand such communications under U.S.C. Title 18 provisions relating to the disclosure of electronic communications (chapter 119), pen registers and trap and trace devices (chapter 206) and stored communications (121), though it excluded the disclosure of cable subscriber viewing habits.[47] Subpoenas issued to Internet Service Providers were expanded to include not only "the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber" but also session times and durations, types of services used, communication device address information (e.g. IP addresses), payment method and bank account and credit card numbers.[48] Communication providers are also allowed to disclose customer records or communications if they suspect there is a danger to "life and limb".[49]

Title II established three very controversial provisions: "sneak and peek" warrants, roving wiretaps and the ability of the FBI to gain access to documents that reveal the patterns of U.S. citizens. The so-called "sneak and peek" law allowed for delayed notification of the execution of search warrants. The period before which the FBI must notify the recipients of the order was unspecified in the Act — the FBI field manual says that it is a "flexible standard"[50] — and it may be extended at the court's discretion.[51] These sneak and peek provisions were struck down by judge Ann Aiken on September 26, 2007 after a Portland attorney, Brandon Mayfield was wrongly jailed because of the searches. The court found the searches to violate the provision that prohibits unreasonable searches in the Fourth Amendment to the U.S. Constitution.[52][53]

Roving wiretaps are wiretap orders that do not need to specify all common carriers and third parties in a surveillance court order. These are seen as important by the Department of Justice because they believe that terrorists can exploit wiretap orders by rapidly changing locations and communication devices such as cell phones,[54] while opponents see it as violating the particularity clause of the Fourth Amendment.[55][56] Another highly controversial provision is one that allows the FBI to make an order "requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution."[57] Though it was not targeted directly at libraries, the American Library Association (ALA), in particular, opposed this provision. In a resolution passed on June 29, 2005 they stated that "Section 215 of the USA PATRIOT Act allows the government to secretly request and obtain library records for large numbers of individuals without any reason to believe they are involved in illegal activity."[58] However, the ALA's stance did not go without criticism. One prominent critic of the ALA's stance was the Manhattan Institute's Heather Mac Donald, who argued in an article for the New York City Journal that "[t]he furor over section 215 is a case study in Patriot Act fear-mongering."[59]

The title also covers a number of other miscellaneous provisions, including the expansion of the number of FISC judges from seven to eleven (three of which must reside within 20 miles (32 km) of the District of Columbia),[60] trade sanctions against North Korea and Taliban-controlled Afghanistan [61] and the employment of translators by the FBI.[62]

At the insistence of Republican Representative Richard Armey,[63] the Act had a number of sunset provisions built in, which were originally set to expire on December 31, 2005. The sunset provision of the Act also took into account any ongoing foreign intelligence investigations and allowed them to continue once the sections had expired.[64] The provisions that were to expire are below.

Title II sections that were to originally expire on December 31, 2005

Section Section title

201
Authority to intercept wire, oral, and electronic communications relating to terrorism

202
Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses

203(b)
Authority to share electronic, wire and oral interception information

204
Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications

206
Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978.

207
Duration of FISA surveillance of non-United States persons who are agents of a foreign power

209
Seizure of voice-mail messages pursuant to warrants

212
Emergency disclosure of electronic communications to protect life and limb

214
Pen register and trap and trace authority under FISA

215
Access to records and other items under the Foreign Intelligence Surveillance Act.

217
Interception of computer trespasser communications

218
Foreign intelligence information

220
Nationwide service of search warrants for electronic evidence

223
Civil liability for certain unauthorized disclosures

225
Immunity for compliance with FISA wiretap

Title III: Anti-money-laundering to prevent terrorism
Main article: USA PATRIOT Act, Title III

Title III of the Act, titled "International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001," is intended to facilitate the prevention, detection and prosecution of international money laundering and the financing of terrorism. It primarily amends portions of the Money Laundering Control Act of 1986 (MLCA) and the Bank Secrecy Act of 1970 (BSA). It was divided into three subtitles, with the first dealing primarily with strengthening banking rules against money laundering, especially on the international stage. The second attempts to improve communication between law enforcement agencies and financial institutions, as well as expanding record keeping and reporting requirements. The third subtitle deals with currency smuggling and counterfeiting, including quadrupling the maximum penalty for counterfeiting foreign currency, such as the Hans Vierck case of 2001.

The first subtitle tightened the record keeping requirements for financial institutions, making them record the aggregate amounts of transactions processed from areas of the world where money laundering is a concern to the U.S. government. It also made institutions put into place reasonable steps to identify beneficial owners of bank accounts and those who are authorized to use or route funds through payable-through accounts.[65] The U.S. Treasury was charged with formulating regulations intended to foster information sharing between financial institutions to prevent money-laundering.[66] Along with expanding record keeping requirements it put new regulations into place to make it easier for authorities to identify money laundering activities and to make it harder for money launderers to mask their identities.[67] If money laundering was uncovered, the subtitle legislated for the forfeiture of assets of those suspected of doing the money laundering.[68] In an effort to encourage institutions to take steps that would reduce money laundering, the Treasury was given authority to block mergers of bank holding companies and banks with other banks and bank holding companies that had a bad history of preventing money laundering. Similarly, mergers between insured depository institutions and non-insured depository institutions that have a bad track record in combating money-laundering could be blocked.[69]

Restrictions were placed on accounts and foreign banks. It prohibited shell banks that are not an affiliate of a bank that has a physical presence in the U.S. or that are not subject to supervision by a banking authority in a non-U.S. country. It also prohibits or restricts the use of certain accounts held at financial institutions.[70] Financial institutions must now undertake steps to identify the owners of any privately owned bank outside the U.S. who have a correspondent account with them, along with the interests of each of the owners in the bank. It is expected that additional scrutiny will be applied by the U.S. institution to such banks to make sure they are not engaging in money laundering. Bank must identify all the nominal and beneficial owners of any private bank account opened and maintained in the U.S. by non-U.S. citizens. There is also an expectation that they must undertake enhanced scrutiny of the account if it is owned by, or is being maintained on behalf of, any senior political figure where there is reasonable suspicion of corruption.[71] Any deposits made from within the U.S. into foreign banks are now deemed to have been deposited into any interbank account the foreign bank may have in the U.S. Thus any restraining order, seizure warrant or arrest warrant may be made against the funds in the interbank account held at a U.S. financial institution, up to the amount deposited in the account at the foreign bank.[72] Restrictions were placed on the use of internal bank concentration accounts because such accounts do not provide an effective audit trail for transactions, and this may be used to facilitate money laundering. Financial institutions are prohibited from allowing clients to specifically direct them to move funds into, out of, or through a concentration account, and they are also prohibited from informing their clients about the existence of such accounts. Financial institutions are not allowed to provide any information to clients that may identify such internal accounts.[73] Financial institutions are required to document and follow methods of identifying where the funds are for each customer in a concentration account that co-mingles funds belonging to one or more customers.

The definition of money laundering was expanded to include making a financial transaction in the U.S. in order to commit a violent crime.[74] the bribery of public officials and fraudulent dealing with public funds; the smuggling or illegal export of controlled munition[75] and the importation or bringing in of any firearm or ammunition not authorized by the U.S. Attorney General[76] and the smuggling of any item controlled under the Export Administration Regulations.[77][78] It also includes any offense where the U.S. would be obligated under a mutual treaty with a foreign nation to extradite a person, or where the U.S. would need to submit a case against a person for prosecution because of the treaty; the import of falsely classified goods;[79] computer crime;[80] and any felony violation of the Foreign Agents Registration Act of 1938.[78] It also allows the forfeiture of any property within the jurisdiction of the United States that was gained as the result of an offense against a foreign nation that involves the manufacture, importation, sale, or distribution of a controlled substance.[81] Foreign nations may now seek to have a forfeiture or judgment notification enforced by a district court of the United States.[82] This is done through new legislation that specifies how the U.S. government may apply for a restraining order[83] to preserve the availability of property which is subject to a foreign forfeiture or confiscation judgement.[84] In taking into consideration such an application, emphasis is placed on the ability of a foreign court to follow due process.[82] The Act also requires the Secretary of Treasury to take all reasonable steps to encourage foreign governments make it a requirement to include the name of the originator in wire transfer instructions sent to the United States and other countries, with the information to remain with the transfer from its origination until the point of disbursement.[85] The Secretary was also ordered to encourage international cooperation in investigations of money laundering, financial crimes, and the finances of terrorist groups.[86]

The Act also introduced criminal penalties for corrupt officialdom. An official or employee of the government who acts corruptly — as well as the person who induces the corrupt act — in the carrying out of their official duties will be fined by an amount that is not more than three times the monetary equivalent of the bribe in question. Alternatively they may be imprisoned for not more than 15 years, or they may be fined and imprisoned. Penalties apply to financial institutions who do not comply with an order to terminate any corresponding accounts within 10 days of being so ordered by the Attorney General or the Secretary of Treasury. The financial institution can be fined $US10,000 for each day the account remains open after the 10 day limit has expired.[72]

The second annotation made a number of modifications to the BSA in an attempt to make it harder for money launderers to operate and easier for law enforcement and regulatory agencies to police money laundering operations. One amendment made to the BSA was to allow the designated officer or agency who receives suspicious activity reports to notify U.S. intelligence agencies.[87] A number of amendments were made to address issues related to record keeping and financial reporting. One measure was a new requirement that anyone who does business file a report for any coin and foreign currency receipts that are over US$10,000 and made it illegal to structure transactions in a manner that evades the BSA's reporting requirements.[88] To make it easier for authorities to regulate and investigate anti-money laundering operations Money Services Businesses (MSBs) — those who operate informal value transfer systems outside of the mainstream financial system — were included in the definition of a financial institution.[89] The BSA was amended to make it mandatory to report suspicious transactions and an attempt was made to make such reporting easier for financial institutions.[90] FinCEN was made a bureau of the United States Department of Treasury[91] and the creation of a secure network to be used by financial institutions to report suspicious transactions and to provide alerts of relevant suspicious activities was ordered.[92] Along with these reporting requirements, a considerable number of provisions relate to the prevention and prosecution of money-laundering.[93] Financial institutions were ordered to establish anti-money laundering programs and the BSA was amended to better define anti-money laundering strategy.[94] Also increased were civil and criminal penalties for money laundering and the introduction of penalties for violations of geographic targeting orders and certain record-keeping requirements.[95] A number of other amendments to the BSA were made through subtitle B, including granting the Board of Governors of the Federal Reserve System power to authorize personnel to act as law enforcement officers to protect the premises, grounds, property and personnel of any U.S. National reserve bank and allowing the Board to delegate this authority to U.S. Federal reserve bank.[96] Another measure instructed United States Executive Directors of international financial institutions to use their voice and vote to support any country that has taken action to support the U.S.'s War on Terrorism. Executive Directors are now required to provide ongoing auditing of disbursements made from their institutions to ensure that no funds are paid to persons who commit, threaten to commit, or support terrorism.[97]

The third subtitle deals with currency crimes. Largely because of the effectiveness of the BSA, money launders had been avoiding traditional financial institutions to launder money and were using cash-based businesses to avoid them. A new effort was made to stop the laundering of money through bulk currency movements, mainly focusing on the confiscation of criminal proceeds and the increase in penalties for money laundering. Congress found that a criminal offense of merely evading the reporting of money transfers was insufficient and decided that it would be better if the smuggling of the bulk currency itself was the offense. Therefore, the BSA was amended to make it a criminal offense to evade currency reporting by concealing more than US$10,000 on any person or through any luggage, merchandise or other container that moves into or out of the U.S. The penalty for such an offense is up to 5 years imprisonment and the forfeiture of any property up to the amount that was being smuggled.[98] It also made the civil and criminal penalty violations of currency reporting cases[99] be the forfeiture of all a defendant's property that was involved in the offense, and any property traceable to the defendant.[100] The Act prohibits and penalizes those who run unlicensed money transmitting businesses.[101] In 2005, this provision of the USA PATRIOT Act was used to prosecute Yehuda Abraham for helping to arrange money transfers for British arms dealer Hermant Lakhani, who was arrested in August 2003 after being caught in a government sting. Lakhani had tried to sell a missile to an FBI agent posing as a Somali militant.[102] The definition of counterfeiting was expanded to encompass analog, digital or electronic image reproductions, and it was made an offense to own such a reproduction device. Penalties were increased to 20 years imprisonment.[103] Money laundering "unlawful activities" was expanded to include the provision of material support or resources to designated foreign terrorist organizations.[104] The Act specifies that anyone who commits or conspires to undertake a fraudulent activity outside the jurisdiction of the United States, and which would be an offense in the U.S., will be prosecuted under 18 U.S.C. § 1029, which deals with fraud and related activity in connection with access devices.[105]

Title IV: Border security
Main article: USA PATRIOT Act, Title IV

Title IV amends the Immigration and Nationality Act of 1952 to give more law enforcement and investigative power to the United States Attorney General and to the Immigration and Naturalization Service (INS). The Attorney General was authorized to waive any cap on the number of full time employees (FTEs) assigned to the INS on the Northern border of the United States.[106] Enough funds were set aside to triple the maximum number of Border Patrol personnel, Customs Service personnel and INS inspectors along with an additional US$50,000,000 funding for the INS and the U.S. Customs Service to improve technology for monitoring the Northern Border and acquiring additional equipment at the Canadian northern border.[107] The INS was also given the authority to authorize overtime payments of up to an extra US$30,000 a year to INS employees.[108] Access was given to the Department of State and the INS to criminal