The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act was signed into law on October 26, 2001, in the aftermath of the September 11 terrorist attacks on the World Trade Center and the Pentagon. Despite strong objections from civil liberties organizations, the USA PATRIOT Act received massive support from Congress. The act passed the House by a vote of 357–66 and the Senate by a vote of 98–1.
Legislative Precedents to the Act
Starting with Franklin D. Roosevelt, presidents have asserted their authority and power to authorize warrantless electronic surveillance for national security purposes. During the end of Lyndon Johnson’s administration, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act on June 19, 1968. This legislation was a congressional effort to regulate the executive branch’s use of electronic surveillance to fight crime. However, it did not regulate the power of the executive branch to use electronic surveillance for national security purposes. In fact, Title III specifically reiterated the almost limitless powers of the president when it comes to protecting national security. Title III of the Omnibus Crime Control and Safe Streets Act made a clear distinction between foreign threats to national security and domestic threats. This distinction was fundamental for future legislation.
In the wake of the Watergate scandal and the Church Committee hearings, Congress enacted the Foreign Intelligence Surveillance Act (FISA). Introduced by Senator Ted Kennedy on May 18, 1977, and signed into law by President Jimmy Carter on October 25, 1978, this legislation was the congressional response to the exposure during multiple Senate hearings of the abuses of government officials, most notably those conducted by members of Richard Nixon’s administration. In the name of national security, government officials were performing surveillance and collecting information on U.S. citizens and organizations. This information was used by the Federal Bureau of Investigation (FBI) and other government entities to inhibit domestic dissent and provide government officials with strategic information about their political opponents.
Four key components of FISA were (1) noncriminal surveillance in the United States was only allowed to collect foreign intelligence and/ or counterintelligence, (2) the act established the probable cause requirement for electronic surveillance, (3) the act established the Foreign Intelligence Surveillance Court (FISC) to review applications for surveillance, and (4) the act allowed surveillance of foreign powers and their agents in the United States for up to a year. If an American was involved at any time in this process, the government had 72 hours to obtain judicial approval.
In 1995, Congress increased the powers of the government under FISA to include physical searches of locations, with probable cause, owned or used by foreign powers and/or their agents under the suspicion that they may be a threat to national security. In 1998, Congress amended FISA to allow the use of pen register and trap and trace devices to monitor and investigate terrorist and clandestine intelligence activities within the territory of the United States. That is, the government was permitted to track telephone calls and electronic communications, such as e-mails, of those suspected of terrorism or spying for the enemies of the United States.
Structure of the USA PATRIOT Act
The USA PATRIOT Act is divided into 10 titles:
- Title I. Title I is designed to enhance domestic security. This title provides funds for counterterrorism, increases technical support for the FBI, and expands the National Electronic Task Force.
- Title II. Title II is designed to improve and broaden law enforcement powers to conduct surveillance of agents of foreign powers who are related to terrorist activities within the United States. The title also authorizes the use of “roving surveillance” and allows the government to order communication providers (e.g., Internet providers) to release data on a customer’s use of service. In addition, Title II permits the government to delay notification of search warrants to those individuals targeted in an investigation.
- Title III. Title III expands law enforcement powers to access, seize, and control financial records and transactions and to investigate money laundering.
- Title VI. Title IV is designed to improve the protection of U.S. borders and reforms certain immigration procedures.
- Title V. Title V is designed to improve communication between law enforcement agencies. It extends the powers of the U.S. Secret Service and forces educational institutions to share information about foreign students with law enforcement agencies. Furthermore, it expands the use and scope of the National Security Letters (NSL).
- Title VI. Title VI provides compensation for the families of first responders killed during the September 11, 2001, terrorist attacks.
- Title VII. Title VII is designed to expand the capabilities of the information-sharing network.
- Title VIII. Title VIII provides for the strengthening of criminal laws by including new definitions of terrorism and the criminalization of those who support terrorist activities.
- Title IX. Title IX provides for the improvement of intelligence gathering and dissemination at all levels of government.
- Title X. Title X contains miscellaneous provisions.
Controversies and Ethical Considerations of the Act
Since its adoption, the USA PATRIOT Act has been a controversial subject of debate between lawmakers and civil liberties groups about the delicate balance between the need for a strong national security apparatus and civil liberties. In the center of the controversy have been Title II (which enhances the government’s surveillance powers) and Title V (which removes obstacles to investigating terrorism).
Supporters of the act have highlighted the importance of giving law enforcement and intelligence agencies all the tools necessary to prevent another terrorist attack in the United States. On the other hand, critics of the act have expressed their concerns about possible abuses of power on the part of the government due to the lack of judicial oversight over its activities and the ethical implications of the use of such power on U.S. citizens.
Title II, Section 203 of the act provides for the improvement of communication between law enforcement and intelligence agencies in matters of terrorism intelligence. Supporters of the act and government officials have claimed that this provision has improved and enhanced information-sharing between the three main intelligence agencies, the Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), and National Security Agency (NSA). State and local law enforcement agencies have also benefited from this improvement of information-sharing. However, critics have raised the concern that this information-sharing may lead to the creation of databases with information about citizens who are not subjected to terrorist investigations.
Title II, Section 206 of the act permits roving wiretaps to investigate suspects of terrorist activities. Roving wiretaps allow the FBI to use one warrant from a court to intercept a suspect’s communications from different devices, such as cell phones, computers, and/or smartphones. Previously, under FISA the government needed to secure warrants for each of the devices it wanted to tap. The U.S. Justice Department has claimed that roving wiretap surveillance is necessary to deal with technologically sophisticated terrorist groups. Critics, however, have argued that this kind of surveillance could result in violations of the privacy of citizens who casually or accidentally come into contact with suspects. These critics maintain that Congress should require the Justice Department and other agencies to specify in warrants the device to be tapped and/or a clear identification of the suspect.
Title II, Section 215 of the act allows for law enforcement officials to have easier access to business records of those suspected of terrorist activities. Law enforcement officials, thus, could obtain any kind of record, book, paper, document, and/ or any other item connected to the suspect in a terrorism investigation as long as such investigation of a U.S. citizen was not conducted solely upon the basis of activities protected by the First Amendment to the Constitution. Civil liberties groups have been very vocal against this section, arguing that it has extended the powers of the FBI to spy on American citizens without showing probable cause and not allowing for the person being investigated to be notified of the ongoing probe. The Justice Department, however, has indicated that all criticism is unwarranted, as this section has slightly expanded the long-standing powers of law enforcement to access selected business records.
Title II, Section 213 provides for the execution of “sneak and peek” search warrants by the FBI in relation to terrorist investigations. These warrants allow law enforcement agents to search a home or a business without notifying the occupant and/or owner that he or she is the target of an investigation. The Justice Department has argued that “sneak and peek” warrants are essential to the success of terrorist investigations, as notifying the
target of such investigations can jeopardize their success. Critics, however, have feared that the FBI may use these types of warrants for minor crimes unrelated to terror investigations.
Title VIII, Section 805 expands the definition of giving aid to terrorists from “material support” to “expert advice and assistance” (training, money, manpower, or any other type of support). The Justice Department has deemed this provision indispensable to reduce support networks of terrorist organizations. On the other side, critics believe that this provision is dangerous, as it may limit free speech and be conducive to situations in which individuals are just guilty by association.
- Abramson, L. and M. Godoy. “The PATRIOT Act: Key Controversies” (December 16, 2005). http://www.npr.org/news/specials/patriotact/patriotactdeal.html (Accessed March 2013).
- Gaines, L. K. and V. F. Kappeler. Homeland Security. Boston: Prentice Hall, 2012.
- Seamon, H. R. and W. D. Gardner. “The PATRIOT Act and the Wall Between Foreign Intelligence and Law Enforcement.” Harvard Journal of Law and Public Policy, v.28/2 (2005).
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