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Patriot Act Controversies

The terrorist attacks against the US on September 11, 2001 instigated a sea change in US policy on gathering intelligence to prevent further attacks. About a month after the September 11 attacks, Congress passed a new counterterrorism law known as the USA-PATRIOT Act 2001.

What does the USA-PATRIOT Act do?

This controversial act revised and consolidated counterterrorism laws post-9/11 to strengthen domestic law enforcement investigatory authority, including sweeping surveillance and search powers. Some claim the elimination of judicial oversight ensures that these powers are not abused. In general terms, the Act consolidates and reinforces existing laws to improve federal resources to enable those fighting the war on terror to intercept communications and acquire intelligence to prevent what is considered modern-day terrorism.

The Act takes into account new technologies which enable acts of cyber-terrorism; prohibits the Act of knowingly harboring a terrorist; and provide law enforcement with the ability to delay the notification of a court-approved search warrant in order to prevent a suspect from destroying evidence or fleeing.

Most controversial provisions

The Act’s most controversial provisions include:

  • Information sharing – Information from criminal probes may be shared with intelligence agencies and other parts of the government.
  • Roving wiretaps – A single wiretap authorization may cover multiple devices, eliminating the need for separate court authorizations for a suspect’s mobile phone, PC and Blackberry, for instance.
  • Access to records – Facilitates access to business records in foreign intelligence investigations.
  • Foreign intelligence wiretaps and searches – Decreases prerequisites for launching foreign intelligence wiretaps and searches.
  • Sneak-and-peek warrants – Allows so-called sneak-and-peek warrants, which allow authorities to search a home or business without immediately notifying the target of a probe.
  • Material support – Expands the existing ban on giving “material support” to terrorists to include “expert advice or assistance.”

The Act affected a number of constitutional provisions. Arguably, the laws most tangible impact has been on the Fourth Amendment, which protects individuals from unreasonable searches and seizures. The Act increases the government’s surveillance authority in four key areas:

  1. Records searches – Expanded government ability to look at records on an individual’s activity being held by third parties.
  2. Secret searches – Expands government’s ability to search privet property without notice to the owner.
  3. Intelligence searches – Expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information.
  4. Trap-and-trace searches – Expands another Fourth Amendment exception for spying that collects “addressing” information about the origin and destination of communications, as opposed to the content.

According to the American Civil Liberties Union,

“… there is little evidence that the Patriot Act has been effective in making America more secure from terrorists. However, there are many unfortunate examples that the government abused these authorities in ways that both violate the rights of innocent people and squander precious resources… The American Civil Liberties Union encourages Congress to exercise its oversight powers fully, to restore effective checks on executive branch surveillance powers and to prohibit unreasonable searches and seizures of private information without probable cause based on particularized suspicion.”

The nation remains divided over the Patriot Act, as revealed in a Pew Research Center poll conducted in February 2011. The poll found that 34 percent believe that the law goes too far and actually poses a threat to civil liberties, while 42 percent consider it a necessary tool that helps the government find terrorists. This was compared to 2004 results in which 39 percent of respondents thought the Act went too far, and 33 percent believed it necessary.

Extension of USA-PATRIOT Act

In May 2011, just minutes before the deadline, President Obama signed a four-year extension of the USA-PATRIOT Act. While most of the Act is permanent law, there are certain sections which must be renewed periodically because of concerns that they could be used to violate privacy rights. The measure extends the legal life of the following provisions:

  • Roving wiretaps, authorized for a person rather than a communications line or device
  • Court-ordered searches of business records
  • Surveillance of non-American “lone wolf” suspects without confirmed ties to terrorist groups

Summary

The USA-PATRIOT Act (also referred to as the Patriot Act) was passed in a post-9/11 climate and aimed to strengthen federal anti-terrorism investigation. This article takes a look at some of the controversial provisions within the Act.

CIPP Exam Preparation

In preparation for the Certified Information Privacy Professional/United States (CIPP/US) exam,  a privacy professional should be comfortable with topics related to this post, including:

  • Other changes after USA-PATRIOT (III.B.b.i.)
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