Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001) (see 18 U.S.C. §1 nt. and classification tables).
Following the 9/11 terrorist attacks, Congress passed the USA PATRIOT Act, in part, to “provid[e] enhanced investigative tools” to "assist in the prevention of future terrorist activities and the preliminary acts and crimes which further such activities." To that end, the Act eased restrictions on the government's ability to collect information regarding people's activities and conversations, both in domestic criminal investigations and in the realms of foreign intelligence gathering and national security. The changes are perceived by many to be necessary in light of the new breed of threats in a post-9/11 world. The expanded authorities also prompted concerns regarding the appropriate balance between national security interests and civil liberties. In part for that reason, the changes were revisited and modified in subsequent measures.
The Act substantively amended Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Electronic Communications Privacy Act of 1986, the Foreign Intelligence Surveillance Act of 1978, and the various National Security Letter (NSL) statutes. The Act authorized the disclosure of wiretap and grand jury information to "any federal, law enforcement, intelligence, protective, immigration, national defense, or national security official" for the performance of his duties. It permitted use of FISA surveillance orders when foreign intelligence gathering is "a significant" reason for the order rather than "the" reason. Finally, it authorized FISA orders for access to any tangible item rather than only business records held by lodging, car rental, and locker rental businesses.
The Act also expanded law enforcement's ability to monitor Internet activities. Inter alia, the law modifies the definitions of “pen registers” and “trap and trace devices” to include devices that monitor addressing and routing information for Internet communications. Carnivore-like programs may now fit within the new definitions.
The Act also removed impediments to sharing foreign intelligence and law enforcement information (including grand jury information). The Act was designed to facilitate an all-source intelligence effort against terrorist groups that work both inside and outside U.S. borders. Nevertheless, problems of coordination and institutional rivalries persist. Some provisions in the Act relating to the sharing of law enforcement and foreign intelligence information were to have expired in early 2006, but new legislation extended expiring provisions with modifications.
The Internet privacy-related provisions of the Act, included as part of Title II, are as follows:
- Section 210, which expands the scope of subpoenas for records of electronic communications to include records commonly associated with Internet usage, such as session times and duration.
- Section 212, which allows ISPs to divulge records or other information (but not the contents of communications) pertaining to a subscriber if they believe there is immediate danger of death or serious physical injury or as otherwise authorized, and requires them to divulge such records or information (excluding contents of communications) to a governmental entity under certain conditions. It also allows an ISP to divulge the contents of communications to a law enforcement agency if it reasonably believes that an emergency involving immediate danger of death or serious physical injury requires disclosure of the information without delay. This section was amended by the Cyber Security Enhancement Act.
- Section 216, which adds routing and addressing information (used in Internet communications) to dialing information, expanding what information a government agency may capture using pen registers and trap and trace devices as authorized by a court order, while excluding the content of any wire or electronic communications. The section also requires law enforcement officials to keep certain records when they use their own pen registers or trap and trace devices and to provide those records to the court that issued the order within 30 days of expiration of the order. To the extent that Carnivore-like systems fall with the new definition of pen registers or trap and trace devices provided in the act, that language would increase judicial oversight of the use of such systems.
- Section 217, which allows a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from a protected computer under certain circumstances, and
- Section 224, which sets a four-year sunset period for many of the Title II provisions. Sections 210 and 216 are excluded from the sunset. Sections 212 and 217 are not.
In 2005, debate over the USA PATRIOT Act resumed when Congress deliberated extension of certain provisions of the Act that were scheduled to expire (sunset). Eventually, Congress passed, and on March 9, 2006, President Bush signed into law, an extension of several of the USA PATRIOT Act provisions that provided the FBI with additional authorities. In its legislation, Congress added new civil liberties protections.
In 2011, Congress again considered the extension of three expiring amendments to FISA. Two of these were enacted as part of the USA PATRIOT Act — the "roving wiretap" and "business records" provisions. The third amendment was enacted in 2004 as part of the Intelligence Reform and Terrorism Prevention Act (Pub. L. No. 108-458 ). Known as the "lone wolf" provision, it permits surveillance of non-U.S. persons engaged in, or preparing to engage in, international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization.
- H. Rep. 107-236, pt. 1, at 41 (2001).
- See, e.g., Reauthorizing the USA PATRIOT Act: Ensuring Liberty and Security: Hearing Before the S. Judiciary Comm., 111th Cong. (Sept. 23, 2009) (statement of Kenneth L. Wainstein, Partner, O’Melveny & Myers and former Ass’t Atty. Gen. for National Security).
- See, e.g., Unchecked National Security Letter Powers and Our Civil Liberties: Hearing Before the House Perm. Select Comm. on Intelligence, 110th Cong. (Mar. 28, 2007) (statement of Lisa Graves, then Deputy Director, Center for National Security Studies).
- See, e.g., USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177; An act to amend the USA PATRIOT Act to extend the sunset of certain provisions of that Act to July 1, 2006, Pub. L. No. 109-160; USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, Pub. L. No. 109-178; Protect America Act of 2007, Pub. L. No. 110-55; FISA Amendments Act of 2008, Pub. L. No. 110-261.
- Pub. L. No. 109-177 and Pub. L. No. 109-178.
- These are contained in the USA PATRIOT Improvement and Reauthorization Act of 2005 (Pub. L. No. 109-177) and the USA PATRIOT ACT Additional Reauthorizing Amendments Act of 2006 (Pub. L. No. 109-178).
- ACLU Legislative Analysis, USA Patriot Act Boosts Government Powers While Cutting Back on Traditional Checks and Balances (Nov. 1, 2001) (full-text).
- Electronic Frontier Foundation (EFF), EFF Analysis of the Provisions of the USA PATRIOT Act (Oct. 31, 2011) (full-text).
- The USA Patriot Act Background Report, PBS Newshour (Mar. 27, 2006) (full-text).