Surveillance Under the Patriot Act

American Civil Liberties Union
December 10, 2010

This article provides a brief summary of the Patriot Act. It explains the legislative background and methods used to pass this bill. Then, it explains the new powers created by the Patriot Act. It explains how these searches are fundamentally different then prior precedent. It also documents how these surveillance powers might violate constitutional law.

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Library Topic: The Patriot Act

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"We've reached the point where merely asking the government to respect the constitutional rights of American citizens, or that members of Congress actually read bills before they vote on them, have become quaint notions; handy for political posturing, but they're ideas that tend to elicit only scoffs from serious Washington people."

An article by former President Clinton's Chief of Staff John Podesta discussing certain provisions in the Patriot Act and the importance of making such provisions "sunset" provisions that expire four years from passage of the legislation.

This is a New York Times news article covering a speech President Bush made at the Ohio State Patrol Academy defending the Patriot Act and advocating the reauthorization of its provisions set to expire in December of 2005.

"A recent report from the software security firm McAfee has raised awareness about the potential for hacking of vital information about governments and businesses."

This piece describes the events surrounding "Doe v. Holder," a court case which challenged the Constitutional legitimacy of the National Security Letter provision of the Patriot Act. The piece provides a timeline of litigation events and also rejoices in the fact that...

"Google disclosed government requests for user data in the latest installment in its Transparency Report. The report documents an upward trend in requests that Google itself finds 'troubling.'"

"Hogan Lovells has published a White Paper with the results of a study about governmental access to data in the cloud. The paper was written by Christopher Wolf, co-director of Hogan Lovells' Privacy and Information Management practice, and Paris Office partner Winston Maxwell. It was released today at a program presented by the Openforum Academy in Brussels at which both Wolf and Maxwell spoke."

"There’s a reason Russia and Germany got totalitarian police states in the middle of the 20th century; this was the first time modern transportation and communications technologies gave governments the ability to exert that kind of control. And while we missed the rise of totalitarianism, the post-World War II...

"In Mayfield v. United States, U.S. District Judge Ann Aiken (District of Oregon) held that parts of the Foreign Intelligence Surveillance Act (FISA) of 1978, which were altered by the USA Patriot Act in 2001, are unconstitutional. The case was brought by Brandon Mayfield, a who was put under extensive surveillance and then detained for two weeks because the FBI...

This article traces some of the twists and turns involved in a case about "the non-disclosure provision" of the Patriot Act. According to Cowan, this case originated when "a Connecticut library group and a New York Internet service provider ... were asked to...

This piece reports on a 2004 court ruling which determined "that a key component of the USA Patriot Act is unconstitutional because it allows the FBI to demand information from Internet service providers without judicial oversight or public review."...

"With at least 36 known plots foiled since 9/11, the United States continues to face a serious threat of terrorism. As such, national security investigators continue to need these authorities to track down terror leads and dismantle plots before the public is in any danger. These three amendments—which have been extensively modified over the years by Congress and...

This editorial on the Patriot Act asserts that no civil rights have been violated by the federal government under the Act and that the Act has been effective in preventing terrorist attacks. Rep. Sensenbrenner states that based on these two facts, the Patriot Act deserves to be renewed for the safety of the country and its people.



"President Obama signed a one-year extension of three sections of the USA Patriot Act on Saturday without any new limits on the measures that many liberal groups and Democrats said were necessary to safeguard American civil liberties."

"President Obama signs on from France after Congress passes the bill. Opposition to the government powers in the terrorist surveillance law brings together conservative Republicans and liberal Democrats."

As the title implies, this piece discusses a U.S. district judge's 2004 ruling against the Patriot Act. Calling the Patriot Act "unconstitutional," U.S. District Judge Audrey B. Collins declared, "The USA Patriot Act places no...

"The editors of Esquire magazine once wrote, 'If there is one thing that always comes out of a terrible tragedy, it is really dumb legislation.'

On October 25, 2001, a mere 45 days after the 9/11 attacks, Congress passed, with virtually no debate, House Resolution 3162, entitled 'Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct...

This article discusses the utility of the Patriot Act. Eland states that the act is not likely to prevent another terrorist attack, and that the government possessed enough powers to prevent an attack before the passage of the act. He ends his article suggesting that repeal of the Patriot Act and ending spying without warrants are necessary to restore the rule of...

"The Senate voted 86-12 to extend key provisions of the Patriot Act by three months, aiming to use the interval to weigh more oversight of federal agents enforcing the antiterrorism law.

The vote sends the legislation back to the House, which approved its own 10-month extension Monday night. Last week, a small uprising of 26...

"Six Weeks in Autumn" is a narrative that tells the story of the events leading up to the creation and passage of the Patriot Act. The articles focuses on the quick pace at which the legislation was put together as well as the obstacles that had to be overcome in writing the act. It ends with a discussion of the new powers the government has assumed since the...

"An often-repeated concern that the U.S. Patriot Act gives the U.S. government unequaled access to personal data stored on cloud services is incorrect, with several other nations enjoying similar access to cloud data, according to a study released Wednesday."

In June of 2010, the Supreme Court overturned several lower court rulings by declaring that a certain provision of the Patriot Act was within the limits of the Constitution. This specific provision involved those who...

An overview of the Patriot Act's provisions and why it was passed. This article discusses major and minor provisions of the act and the unconstitutionality of such provisions.

"I do not like the Patriot Act. I very much do not like it. But I dislike it because it gives the state powers I don't want the state to have, not because I think it's a short step from here to Nazi Germany. It's a lot of pretty long steps from here to Nazi Germany (or Stalinist Russia), and thank God for that."

"If you wonder why House Republicans were so keen on ramming through an extension of the Patriot Act without hearings or debate, take a gander at the Heritage Foundation’s blog post and Web memo on the topic. I want to run through the latter in some detail, because I think it’s telling just how poorly the case against reform stands up to scrutiny in the rare...

The first of a three-part series, this article and its subsequent parts discuss the effectiveness of the Patriot Act since its passage. Sanchez writes that safeguards on governmental investigative powers are necessary and that citizens should be concerned about the extent to which these powers are used. He concludes by saying that liberty and security are not...

"In one of the most egregious violations of the First Amendment's guarantee of free speech seen in quite some time, Tarek Menanna, an American Muslim, was convicted this week in a federal court in Boston and then sentenced yesterday to 17 years in prison. He was found guilty of supporting Al Qaeda (by virtue of translating Terrorists' documents into English and expressing 'sympathetic views'...

"Milton Friedman once said that there is 'nothing so permanent as a temporary government program.' I would add to this: there is nothing so permanent as a war on terror. Ask the British or the Israelis or any other government which has decided to wage a similar war.

The 2001 signing of the PATRIOT Act marked the beginning of a 'temporary' and unofficial state of emergency for the...

"Americans have seen their freedoms decline on almost every front over the past decade. We have been spied on by surveillance cameras, eavesdropped on by government agents, had our belongings searched, our phones tapped, our mail opened, our email monitored, our opinions questioned, our purchases scrutinized (under the USA Patriot Act, banks are required to analyze your transactions for any...

"One of the more extreme government abuses of the post-9/11 era targets U.S. citizens re-entering their own country, and it has received far too little attention. With no oversight or legal framework whatsoever, the Department of Homeland Security routinely singles out individuals who are suspected of no crimes, detains them and questions them at the airport, often for hours, when they return...

A table comparing Patriot Act provisions with amendments from the Bill of Rights, specifically the 1st, 4th, and 6th Amendments. It shows the disconnect between constitutional rights and certain contentious parts of the Patriot Act.

"The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) has awarded defense contractor ATK with an Indefinite Delivery/Indefinite Quantity (IDIQ) agreement for .40 caliber hollow point ammunition. According to an official ATK press release, U.S. agents will receive a maximum of 450 million rounds over a five-year period."

"In post-Occupy America, it's often hard to know whether new citizen protest laws signal the end of free speech or a mere tweak of the machine. That looks to be the case with the new anti-protest bill that passed the House of Representatives overwhelmingly two weeks ago and was signed into law by the president soon thereafter. On its face, the new legislation doesn't change a whole lot. Yet...

Chart or Graph

This chart depicts 30 terrorist plots that have been foiled since the implementation of the Patriot Act.

This chart depicts the number of Foreign Intelligence Surveillance court orders that have been approved, before and after the implementation of the Patriot Act.

This chart depicts the number of wiretaps approved by United States courts both before and after the passage of the Patriot Act.

This graph shows the number of requests made for National Security Letters before and after 9/11.

"As summarized in the following table, we determined that the FBI, EOUSA, and the Criminal Division did not accurately report 24 of the 26 statistics we reviewed."

"Sections 356 and 359 of the Patriot Act expanded the types of financial institutions required to file suspicious activity reports under the Bank Secrecy Act."

Analysis Report White Paper

"In 2009 alone, U.S. authorities foiled at least six terrorist plots against the United States. Since September 11, 2001, at least 30 planned terrorist attacks have been foiled, all but two of them prevented by law enforcement."

"As one observer put it, France's anti-terrorism laws make the Patriot Act look 'namby-pamby" by comparison....Frequently, there are misconceptions about what the law allows, at home and abroad."

"Landlords and tenants are not usually on the same side in the courtroom. But in Kalamazoo, Michigan, a group of tenants are standing up for their property rights and supporting their landlord against the City's inspection policy. It's a case with far-reaching implications that should concern every American."

"This Article concludes that the Act's money laundering provisions will not be effective in intercepting terrorist financing. It reaches that conclusion after examining the current state of United States money laundering regulation, the changes wrought by the Patriot Act, and the realities of terrorist financing."

"Using encrypted Internet telephony as an example, this Article proposes a change to the NSA's internal guidelines that would prevent dissemination of information gained through the frustration of the reasonable privacy expectations of protected persons unless exigent circumstances or serious threats to national security were presented."

This is an analysis of the Patriot Act by the Electronic Frontier Foundation. It presents a comprehensive review of sections of the act that are worrisome and could infringe upon the daily lives of Americans, including increased surveillance through wiretaps, search warrants, pen registers, and subpoenas.

This piece presents an overview and analysis of the Patriot Act. It includes information on the history of the act, analysis of key provisions, and links to news articles on recent uses and abuses of the Act.

"Concerns for security and freedom will always conflict to some degree. Therefore, Americans must understand that this is a new kind of 'War on Terrorism,' with no immediate end in sight, and that it is also a new kind of challenge to civil liberties. Thus, it is time for a fundamental rethinking of what U.S. citizens consider basic freedoms."

This is a comprehensive report on the great increase in governmental power after September 11th and the consequences of this increase. The report covers each new power assumed by the government, additional measures that could be assumed as governmental powers, and how assumption of these powers is at odds with traditional "American values."

"In this article, Professor Kerr argues that the common wisdom on the USA Patriot Act is wrong. Far from being a significant expansion of law enforcement powers online, the Patriot Act actually changes surveillance law in only minor ways and added several key privacy protections."

"If property is liberty’s other half, privacy is its guardian. The right to privacy is essential to the preservation of freedom for the simplest of reasons. If no one knows what I do, when I do it, and with whom I do it, no one can possibly interfere with it."

One provision in the PATRIOT Act decreases the oversight the FBI needs for issuing National Security Letters. These letters require ISPs to provide information on their clients to the government. Patrick Garlinger explains why current Fourth Amendment jurisprudence fails to protect information hosted by a third party.

In this report the ACLU discusses the unconstitutionality and ineffectiveness of the Patriot Act. It points out instances in which the Act has been used against citizens, challenges made to the Act in court, and offers ways to change the Act to make it more effective but less infringing on Americans' rights.

"In this chapter of the Progressive Priorities Series, the Center for American Progress offers specific guidance to protect civil liberties as the president and Congress debate our nation’s response to terrorism, particularly the reauthorization of expiring provisions of the USA PATRIOT Act."

"This report outlines the results of a stated preference discrete choice modelling study that sought to objectively understand the real privacy, liberty and security trade-offs of individuals so that policy makers can be better informed about individuals true preferences in this domain."

This article provides a brief summary of the Patriot Act. It explains the legislative background and methods used to pass this bill. Then, it explains the new powers created by the Patriot Act. It explains how these searches are fundamentally different then prior precedent.

In this piece, the author uses the Patriot Act to explore how the Courts have frequently minimized the institutional protections offered by the Fourth Amendment.

"The antiterrorism bill recently enacted by Congress makes a number of significant changes to criminal procedure and related topics. This paper describes some of these changes and discusses some of the legal implications."

Recommendations for reforming the USA PATRIOT Act and Domestic Detention Policy.

"In this article, I address only the legality of the NSA program, not the policy question whether the program is necessary and effective from a national-security perspective."

This White Paper discusses the history of "roving" electronic surveillance in the United States and covers why such surveillance is a critical part of national security policy.

Video/Podcast/Media

"The recent unveiling of White House plans for PATRIOT Act II has raised concerns nationwide about the state of American civil liberties in a time of crisis. Since the attacks on September 11 and the enactment of the USA PATRIOT Act, the Bush administration has clashed with civil libertarians over allegations of constitutional violations and the excessive use of...

"The most serious kind of subpoena - called a 'National Security Letter' - used to have a lifetime gag-order automatically attached. That is until Nicholas Merrill appealed his and won the right to talk about it. Despite 50,000 national security letters a year there are only three organizations who have ever won the right to say they got one. Nick Merrill explains...

A short podcast on the Obama Administration's position on the Patriot Act featuring commentary from Julian Sanchez.

"Co-author of the USA Patriot Act, Viet Dinh, and Congressman Barney Frank, D-MA, debate the merits of the controversial 2001 law in a public discussion.

This event is sponsored by a grant from the William and Flora Hewlett Foundation that is dedicated to supporting relationships between the Wheaton classroom and surrounding...

"Mr. Dinh discussed the USA Patriot Act and how it has aided law enforcement in the prevention of terrorist attacks in the U.S. and the world. Mr. Dinh is the chief author of the USA Patriot Act, passed by Congress in October 2001 to make it easier for F.B.I. agents to monitor suspected terrorists on U.S. soil and pass along the information to police and...

Attorney General Eric Holder addresses the questions of due process, judicial process and the 4th Amendment. Since the Obama administration ordered the killing of American citizen, Anwar al-Awlaki, there has been substantial debate surrounding the constitutionality of such a power. Does every citizen deserve due process?

"Former BB&T Chairman and CEO John A. Allison discusses how mandates like Sarbanes Oxley and the Patriot Act helped cause the housing meltdown and financial crisis. He spoke at the Cato Institute's 29th Annual Monetary Conference held November 16th, 2011."

"The Patriot Act is full of provisions that have raised the ire of civil libertarians, and rightly so. But are there portions of the act that ought to be preserved? Cato Institute research fellow Julian Sanchez discusses the good, the bad and the ugly of the USA Patriot Act."

"Reason Editor in Chief Matt Welch, possibly wearing Nick Gillespie's clothes, went on Russia Today's The Alyona Show to tease out meaning from the surprise non-reauthorization of three provisions of the PATRIOT Act."

"In October 2001, in response to the terrorist attacks of September 11, Congress passed, and President Bush signed, the USA Patriot Act. The law is intended to prevent future terrorist acts by enhancing various law enforcement tools. Critics argue that the Patriot...

Ron Paul lays out his argument against the NDAA, particularly the martial law provision.

"Congress is presently moving to renew several provisions of the USA Patriot Act that are set to expire on December 31. The Federal Bureau of Investigation has been urging members of Congress to renew the provisions because they provide FBI agents with exceptional powers that can help to uncover terrorist plots. Civil liberties advocates have long maintained that...

Primary Document

"This report is organized into six chapters. Chapter One contains this introduction. Chapter Two provides general background on the issues discussed in this report. For example, it contains descriptions of key terminology, the FBI's organizational structure, the so-called 'wall' that separated intelligence and criminal investigations in the FBI and the DOJ, the...

"This report is divided into six chapters. Chapter Two describes in detail the circumstances in which the FBI used exigent letters and other informal requests to obtain telephone records from the three on-site communications service providers. This chapter also contains our analysis of each of these methods for obtaining telephone records and other...

"We examined the type of information that has been obtained through the use of pure Section 215 orders and how that information has been used and disseminated in national security investigations. We found no instance where the information obtained from a Section 215 order resulted in a major case development, such as the disruption of a terrorist plot. We also...

Transcript of the Bill of Rights to the Constitution.

In this selection from William Blackstone's magnum opus, Commentaries on the Laws of England, Sir Blackstone discusses the legal concept of arrests and warrants. This section is important as it provides much of the historical and legal background behind the Fourth Amendment to the US Constitution.

This is a partial transcript of Senate proceedings on October 25, 2001, the day the original Patriot Act was passed. It includes floor speeches of senators.

"The Court concludes that the compulsory, secret, and unreviewable production of information required by the FBI's application of 18 U.S.C 2709 violates the Fourth Amendment, and that the non-disclosure provision of the 18 U.S.C 2709(c) violates the First Amendment."

The plaintiffs in this case argued that a portion of the Patriot Act violated the First, Fourth, and Fifth Amendments of the United States Constitution. The particular portion of the Patriot Act with which the plaintiffs took issue dealt with the issuance of...

This case is one of the many which challenged the National Security Letter provision of the Patriot Act. A piece describing the details of this case can be found...

One part of the Patriot Act dealt with the issuance of National Security Letters. This particular case contends that the procedures surrounding the issuance of National Security Letters violated the First Amendment rights of Americans.

"In a complaint filed in April 2005, EPIC asked a federal court to force the FBI to disclose information about its use of expanded investigative authority granted by sunsetting provisions of the USA PATRIOT Act. The agency agreed to quickly process EPIC's Freedom of Information Act request for the data, but did not comply with the timeline for even a standard FOIA...

This sheet is a report on the civil liberties safeguards in the Patriot Act that were set to expire 4 years after passage of the bill. This sheet itemizes each safeguard and discusses why each provision must be renewed in the reauthorization of the Patriot Act in order to continue to protect the United States and its citizens.

This fact sheet from the Department of Justice outlines the provisions from the original Patriot Act that were set to expire 4 years after passage of the act. It discusses key elements of counterterrorism efforts included in the Patriot Act and its reauthorization that are meant to stop terrorist attacks and protect American citizens.

"We all agreed that we needed legislation to make it harder for suspected terrorists to go undetected in this country. Americans everywhere wanted that.

But soon after the PATRIOT Act passed, a few years before I ever arrived in the Senate, I began hearing concerns from people of every background and political leaning that this...

The President's remarks followed a tour of the Synchronized Operations Command Complex at Metropolitan Police Department headquarters in Washington, DC, and utilized the still-forming rhetoric of the War on Terror. "See, we're at war," Bush stated. "This is a war. This isn't a single isolated incident. We are now in the first war of the 21st century, and...

The President's remarks in the East Room at the White House just prior to signing the USA PATRIOT ACT. Bush declared, "These terrorists must be pursued; they must be defeated; and they must be brought to justice. And that is the purpose of this legislation."

This bill, introduced by Rep. James Sensenbrenner (R-WI), was a forerunner to the Patriot Act and aimed "[t]o deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes."

Introduced by Rep. Michael Oxley (R-OH), this bill sought to "combat the financing of terrorism and other financial crimes, and for other purposes." Although never passed into law, parts of it were eventually adopted in the Patriot Act.

A summary of PATRIOT Act provisions with information on how the Act helps to counter terrorism efforts by investigating organized crime, creating new ways to share information, allowing the government to investigate issues more thoroughly, and penalizing terrorists more harshly.

In this case, the Supreme Court overturned a portion of a lower court's ruling concerning a provision of the Patriot Act. This particular provision dealt with those who supplied aid to terrorist organizations. Despite claims to the contrary, the High Court ruled...

"On behalf of the American Bar Association, I write to direct your attention to provisions of the House- and Senate-passed versions of H.R. 3199, the USA PATRIOT Improvement and Reauthorization Act of 2005 that are of concern to the ABA, and to urge consideration of our concerns during your efforts to reconcile the two versions of the bill...

"In an action brought by a former suspect in the 2004 Madrid train bombings and his family claiming that several provisions of the Foreign Intelligence Surveillance Act (FISA) as amended by the PATRIOT Act were unconstitutional, judgment for...

"Amends the USA PATRIOT Improvement and Reauthorization Act of 2005 to extend through February 28, 2011, provisions: (1) granting roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978 (FISA) where the court finds that the actions of the target may thwart the identification of a specified person or other persons (by using multiple...

"What, then, is the rightful limit to the sovereignty of the individual over himself? Where does the authority of society begin? How much of human life should be assigned to individuality, and how much to society?

Each will receive its proper share, if each has that which more particularly concerns it. To individuality should...

Remarks from Attorney General John Ashcroft to members of Congress. In this speech, he addresses the purpose of the Patriot Act and how it has helped in the prevention of terrorist attacks.

This is a resolution created by the American Library Association in opposition to provisions in the Patriot Act, most notably section 215 under Title II of the bill that allows the FBI director or a designee to apply for a court order that would require entities to produce "certain business records." This, the ALA believes, would "increase the likelihood that the activities of library users,...

Senator Thomas Daschle (D-SD) introduced this bill to the Senate, which was supposed to "deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." Although it never passed, some of its provisions were incorporated into the Patriot Act.

"An Act to clarify that individuals who receive FISA orders can challenge nondisclosure requirements, that individuals who receive national security letters are not required to disclose the name of their attorney, that libraries are not wire or electronic communication service providers unless they provide specific services, and for other purposes."

Speech made by Senator Russ Feingold on the Senate Floor before passage of the Patriot Act. The sole senator to vote against the Patriot Act, Senator Feingold spells out his reasons for opposing the legislation and offers amendments to the bill. One of the reasons Senator Feingold gives for his opposition has to do with the Fourth Amendment. According to Feingold,...

"The Department's Office of the Inspector General (OIG) initiated this audit to determine if Department components and the Department as a whole gather and report accurate terrorism-related statistics. ...

In general, we found that the Department components and the Department as a whole did not accurately...

"We found that the FBI failed to nominate many subjects in the terrorism investigations that we sampled, did not nominate many others in a timely fashion, and did not update or remove watchlist records as required. Specifically, in 32 of the 216 (15 percent) terrorism investigations we reviewed, 35 subjects of these investigations were not nominated to the...

"During the Carter administration, Congress passed the Foreign Intelligence Surveillance Act, which created a new federal court to approve electronic surveillance of citizens and resident aliens alleged to be acting on behalf of a foreign power. Until now, the FISA court granted surveillance authority if foreign intelligence was the primary purpose of an...

"However, continuing advances in telecommunications technology have impaired and in some instances prevented telecommunications carriers from assisting law enforcement in conducting court-authorized electronic surveillance."

"Amends the Foreign Intelligence Surveillance Act of 1978 (FISA) to state that nothing under its definition of 'electronic surveillance' shall be construed to encompass surveillance directed at a person reasonably believed to be located outside the United States.

Allows the Director of National Intelligence (DNI) and...

"The USA PATRIOT Act passed in the wake of the September 11 terrorist attacks. It flows from a consultation draft circulated by the Department of Justice, to which Congress made substantial modifications and additions. The stated purpose of the Act is to enable...

This page provides the roll call votes of the U.S. Senate on the Patriot Act. The bill was passed with 98 to 1, with the no vote cast by Senator Russ Feingold (D-WI).

Complete text of the 2005 reauthorization of Patriot Act provisions as Public Law 109-177.

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