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By David L. Hudson Jr.
First Amendment Center research attorney

Since its passage 45 days after the Sept. 11, 2001, terrorist attacks, the USA Patriot Act has been a lightning rod for controversy. It has taken center stage in a vigorous debate over the proper balance between national security and individual liberty.

Supporters contend the Patriot Act is responsible for preventing further catastrophes. Sen. Mitch McConnell, R-Ky., said in Congress in April 2004 that “the biggest hero to emerge from the hearings before the 9/11 Commission has been the Patriot Act.” In March 2006, President George W. Bush credited the Patriot Act with helping "break up terror cells in Ohio, New York, Oregon and Virginia."

Detractors counter that the Patriot Act represents a loss of individual liberty and a naked grasp for power by the executive branch of government, particularly over the judicial branch. Robert Levy, senior fellow in constitutional studies at the Cato Institute, has written that the Patriot Act represents "the looming sacrifice of civil liberties at the altar of national security."

Congress approved the Patriot Act by an overwhelming margin shortly after the infamous terrorist acts. The House voted 357-66 in favor of the measure, while the Senate voted 98-1 with only Sen. Russ Feingold, D-Wis., dissenting. President Bush signed the behemoth bill into law on Oct. 26, 2001. The name of the act perhaps helped ensure its easy passage; USA PATRIOT stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.

The massive law, 342 pages long, amends at least 15 separate federal laws, including the Foreign Intelligence Surveillance Act of 1978, the Electronic Communication Privacy Act of 1986, the Computer Fraud and Abuse Act and the Family Education Rights and Privacy Act.

The law permits roving wiretaps and so-called “sneak and peek” warrants, adds new terrorist crimes, knocks down the wall between foreign and domestic intelligence, amends the definition of domestic terrorism and makes many other changes too numerous to catalog.

John Whitehead, founder of the Rutherford Institute, has written that “the Patriot Act violates at least six of the ten original amendments known as the Bill of Rights — the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments — and possibly the Thirteenth and Fourteenth as well.”

Most of the criticism of the Patriot Act concerns its seeming infringements on Fourth Amendment rights. The Fourth Amendment prohibits government officials from engaging in “unreasonable searches and seizures.” Normally, the Fourth Amendment requires law enforcement officials to obtain a warrant based on probable cause before searching a person’s home. The standards are relaxed under FISA if the subject is suspected of being, say, a foreign spy. The Patriot Act lowers those standards even more.

The American Civil Liberties Union and other groups mounted a hearty campaign of opposition against the Patriot Act, challenging several of its provisions in federal courts. As time passed, more members of Congress also objected to certain provisions of the law. This criticism led to modifications of several provisions. At the same time the executive branch and some legislative leaders called for a strengthening of some provisions. They also called for certain provisions in the Patriot Act that were set to expire at the end of 2005 to be made permanent.

Section 215
Though most objections to the Patriot Act center on the Fourth Amendment, some critics contend that the act also intrudes deeply on fundamental First Amendment rights. The ACLU filed a lawsuit in July 2003 on behalf of six groups, many of which provide some form of support to Muslims in America, challenging Section 215 of the Patriot Act. In Muslim Community Association of Ann Arbor v. Ashcroft, the plaintiffs contended that Section 215 violates the First Amendment.

Section 215 of the law allows the Federal Bureau of Investigation to “make an application for an order requiring the production of any tangible things for an investigation to obtain foreign intelligence information … providing 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.”

Previously, the FBI could only obtain business records from vehicle rental agencies, transport services, storage facilities and similar places. Now, Section 215 allows the government to obtain “any tangible things,” which can include library records, health-care records, logs of Internet service providers and other documents and papers.

Section 215 also provides for judicial oversight of all FBI requests for such information. But there is a big dispute between the government and civil liberties advocates over how the language of the act on this point should be interpreted.

The act says the government must make an application for “any tangible things” to a FISA court judge or U.S. magistrate judge. The act reads:

“Upon application … the judge shall enter an ex parte (in the interest of one side only) order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section” (50 USC 1861 — at (c)(1)).

The requirements presumably would include the provision 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” (50 USC 1861 — at (a)(1)), as mentioned above.

However, according to the ACLU, the FISA court merely rubber-stamps all requests because all the FBI has to show is that the records are sought for an authorized investigation. The wording of the law appears to allow for more discretionary review than suggested by the ACLU, but it is safe to say that the standards for allowing release of information are minimal. A judge who reviews an application has less room to reject the request than in other situations. There is no requirement for a showing of probable cause, meaning the FBI does not have to show any reason that it believes the target of the surveillance order is engaged in criminal or terrorist activity. That person could be innocent.

Section 215 also provides: “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” This gag order would prevent a library, for example, from ever notifying its patrons that the government has requested information from it under Section 215.

In legal papers in its lawsuit, the ACLU wrote that this “gag provision is manifestly inconsistent with the First Amendment.” In an earlier publication, Unpatriotic Acts: The FBI’s Power to Rifle Through Your Records and Personal Belongings Without Telling You, the ACLU wrote: “If the First Amendment means anything, it means that the government cannot impose an indefinite gag order without reference to the particular facts of the particular case.”

Others contended the ACLU’s attack against Section 215 was overblown. Heather Mac Donald, a fellow with the Manhattan Institute, argued in an August 2003 column in The Washington Post that “Section 215 merely gives anti-terror investigators the same access to such records as criminal grand juries, with the added protection of judicial oversight.” She rejects the staunch opposition to the provision by many in the library community, writing: “By publicly borrowing library books, patrons forfeit any constitutional protections they may have had in their reading habits.”

However, Jameel Jaffer, an ACLU staff attorney at the national office, insisted that Section 215 violated the First Amendment. “If people think that the government is looking over their shoulders to see what books they are reading or what Web sites they are visiting, many are not going to read those books or visit those Web sites,” he says. “Some of this speech that will be silenced is speech that is important to an open democracy.”

“Many provisions of the Patriot Act are absolutely a First Amendment threat,” Jaffer said. “Often there is a greater chill on free expression not from direct censorship but from government monitoring.

The government filed a motion to dismiss the Section 215 case, contending the plaintiffs lacked standing to challenge the section. Arguments were heard in December 2003 before U.S. District Judge Denise P. Hood in the Eastern District of Michigan.

Judge Hood did not issue an opinion until Sept. 29, 2006. In Muslim Community Association of Ann Arbor v. Ashcroft, Hood denied the government’s motion to dismiss on standing grounds. However, she noted that Section 215 had been modified significantly since the lawsuit filing. When Congress passed amendments to the Patriot Act in March 2006, it substantially amended Section 215. Under current law (50 U.S.C. 1861(a)), a person who receives a request for such records may disclose the request to “an attorney to obtain legal advice or assistance with respect to the production of things in response to the order.” The new law also requires the FBI to include in its record requests “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.”

Hood gave the plaintiffs 30 days to decide whether they would like to amend their original complaint to challenge the constitutionality of the new version of Section 215. On Oct. 27, 2006, the ACLU announced that it would withdraw its lawsuit over Section 215.

“While the reauthorized Patriot Act is far from perfect, we succeeded in stemming the damage from some of the Bush administration’s most reckless policies,” said ACLU associate legal director Ann Beeson in a press release. “The ACLU will continue to monitor how the government applies the broad Section 215 power and we will challenge unconstitutional demands on a case-by-case basis.”

Another legal challenge
Another provision of the Patriot Act broadened the definition in federal law of providing “material support or resources” to terrorist organizations. That provision, Section 805(a)(2)(B), added “expert assistance or advice” to the definition of “material support” to terrorists.

Five organizations and two U.S. citizens (including a former administrative law judge) challenged the provision as unlawful. These plaintiffs sought to provide support to the lawful, nonviolent activities of Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam, two groups that, during the Clinton administration, then-Secretary of State Madeleine Albright had designated as “foreign terrorist organizations.”

The plaintiffs argued that the ban on “expert advice and assistance” was unconstitutionally vague and could bar protected First Amendment activity, such as assisting one of the groups in petitioning the United Nations, providing legal assistance in negotiating peace agreements or advising on international law. In Humanitarian Law Project v. Ashcroft, No. CV 03-6107 (ABC), U.S. District Judge Audrey B. Collins agreed that the “expert advice and assistance” language was too vague.

“The ‘expert advice or assistance’ Plaintiffs seek to offer includes advocacy and associational activities protected by the First Amendment, which Defendants concede are not prohibited under the USA Patriot Act,” Judge Collins wrote. “Despite this, the USA Patriot Act places no limitation on the type of expert advice and assistance which is prohibited, and instead bars the provision of all expert advice and assistance regardless of its nature.” Collins, however, declined to find that the provision was substantially overbroad on its face: “The Court therefore declines to apply the ‘strong medicine’ of the overbreadth doctrine, finding instead that as-applied litigation will provide a sufficient safeguard for any potential First Amendment violation.”

“This provision is one of the most extreme of the Patriot Act’s many terms, because it criminalizes pure speech, without any requirement that the government show that the speech has any connection to furthering terrorism,” said David Cole, a Georgetown law professor who represents the plaintiffs in the case. “That will by definition chill protected First Amendment activity.”

In June 2004, a jury in Idaho acquitted Sami Al-Hussayen, a graduate student accused of providing “expert assistance” to terrorists through a Web site. The jury reached its verdict after seven days of deliberation. "The message is that the First Amendment is important and meaningful in this country," said David Nevin, lead attorney for Al-Hussayen. "The system worked."

Section 505 and the National Security Letter lawsuit
Another Patriot Act provision that led to federal court challenges was Section 505, which expanded the FBI's authority to issue National Security Letters demanding customer records from businesses. Before Section 505 took effect, the FBI could issue NSLs only on those suspected to be terrorists or foreign spies. Now, according to the ACLU, the FBI could use its powers to obtain information on anyone. Similar to Section 215, Section 505 also prohibited individuals who received requests under the section from disclosing that fact to anyone. Critics charge that this gag-order provision violates First Amendment rights.

“Before the Patriot Act, the FBI could use this invasive authority only against suspected terrorists and spies,” Jaffer said in an ACLU news release. “Now it can issue National Security Letters to obtain information about anyone at all. This should be disturbing to all of us.”

Two ACLU lawsuits alleged that the FBI’s NSL powers, as amended by Section 505 of the Patriot Act, violate the First Amendment by giving the FBI the power to force the disclosure of sensitive, personal information without adequate safeguards.

In Doe v. Ashcroft (2004), a federal district court in New York ruled that Section 505 violated the First Amendment. The judge wrote that “Democracy abhors undue secrecy” and that “an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society.”

In Doe v. Gonzales (2005), a federal district court judge in Connecticut lifted a gag order imposed on librarians who had received a National Security Letter from the FBI asking for records from a library computer. In September 2005, federal district Judge Janet Hall lifted the gag order.

The government appealed both decisions to the 2nd U.S. Circuit Court of Appeals. On May 23, 2006, a three-judge panel of the 2nd Circuit issued its opinion, styled Doe v. Gonzales, which dealt with both the New York and Connecticut decisions.

The 2nd Circuit remanded the New York case back to the federal trial court, because Section 505 had been substantially amended by the USA Patriot Improvement and Reauthorization Act. “The Reauthorization Act has substantially shifted the legal footing on which Doe I stands,” the court wrote. The appeals court asked that the trial court conduct a First Amendment analysis of the revised version of National Security letter provision.

As for the decision from Connecticut, the 2nd Circuit determined that the case was moot, or no longer active, because the government had conceded that the librarians could reveal their identities. The appeals court had originally kept the gag order in place in September 2005 while the government appealed. However, the government later conceded that the librarians could reveal themselves.

Legislative, community responses
The Patriot Act engendered opposition at the local and state level, as many members of the public and local legislators expressed concerns about particular provisions of the act. At the federal level, several provisions introduced in Congress would have changed or repudiate parts of the Patriot Act. These measures, no longer active, included:

  • H.R. 1157 — Freedom to Read Protection Act of 2003 (introduced March 6, 2003, by Rep. Bernie Sanders (I-Vt.).
  • S. 1695 — Patriot Oversight Restoration Act of 2003 (introduced Oct. 1, 2003, by Sen. Patrick Leahy, D-Vt.).
  • H.R. 3171 — Benjamin Franklin True Patriot Act (introduced Sept. 24, 2003, by Rep. Dennis Kucinich, D-Ohio).
  • S. 1507 — Library, Bookseller, and Personal Records Privacy Act (introduced July 31, 2003, by Sen. Feingold).
  • S. 1709 — Security and Freedom Ensured Act of 2003 (introduced Oct. 2, 2003, by Sen. Larry Craig, R-Idaho).

The Justice Department drafted another bill, dubbed Patriot II, called the Domestic Security Enhancement Act of 2003. Copies of the measure were leaked, which led to widespread opposition. The proposed Patriot II contained many provisions that caused alarm among free-speech and privacy advocates. For example, under the measure, federal agents would not need a subpoena to obtain consumer credit records. Under current law, they do need a subpoena. The measure would have provided less public access to information about terrorist detainees and related investigations. Amid the outcry over such provisions, the Patriot II measure apparently was never formally introduced in Congress.

The Security and Freedom Ensured Act of 2003, called SAFE, sought to amend some of the more controversial provisions of the Patriot Act. This bill, which had bipartisan support, would have amended Section 215 by requiring the FBI to have “specific and articulable facts” connecting records to a foreign agent. It also would have amended several other provisions of the Patriot Act. In April 2004, Sen. Craig said in Congress: “I am not seeking to repeal any provision of the Patriot Act but rather to salvage it by making necessary, albeit minor, amendments to it in order to safeguard individual liberties while preserving the very important law enforcement authorities it grants.”

A revised version of the SAFE Act was introduced in 2005. Also, in summer 2005, the USA Patriot and Terrorism Prevention Reauthorization Act of 2005 (H.R. 3199) was introduced. This lengthy legislation, signed into law in March 2006, contained elements of the SAFE Act in that it modified some of the controversial provisions. However, it also made permanent several other provisions of the original Patriot Act. The act represented a compromise measure of sorts between those on the one hand who wanted to extend and expand the provisions in the Patriot Act and those who wanted to modify.

In addition to legislative activity, many communities have become involved by passing resolutions opposing parts of the Patriot Act. According to the Bill of Rights Defense Committee, 408 communities had passed measures opposing the Patriot Act as of November 2006. At least five states — Alaska, Hawaii, Maine, Montana and Vermont — have passed statewide resolutions.

For example, Montana's resolution opposes several provisions of the act and states that the “59th Montana Legislature urges the Montana Congressional Delegation to vigorously oppose any pending and all future federal legislation if the legislation infringes on the civil rights and civil liberties of American citizens.”

The opposition did not stop the U.S. Congress from renewing most provisions of the Patriot Act in March 2006. Section 224 had provided that several provisions of the act would expire on Dec. 31, 2005, unless Congress renewed them.

Later that month, President Bush signed into law the reauthorization law that made many provisions of the Patriot Act permanent. It extended the sunset period of the controversial Section 215 for four more years. Perhaps because of widespread opposition to parts of the law, the act also included many provisions designed to ensure a level of civil liberties protections.

Conclusion
The debate over how to properly calibrate the balance between security and liberty will never end, particularly in this age of global terrorism and weapons of mass destruction. The Sept. 11 terrorist attacks showed that government leaders must act to ensure that we can protect our nation from al-Qaida and other terrorists. However, many believe that the government must not sacrifice civil liberties in the well-meaning efforts of increased security.

In 1928, U.S. Supreme Court Justice Louis Brandeis wrote in his dissenting opinion in the wiretapping case Olmstead v. United States (1928): “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

Many people believe that government officials have encroached on individual liberty by passing the Patriot Act and subsequent expansions and amendments out of well-meaning motives — to combat the undoubted evils of terrorism in the age of al-Qaida. However, questions persist as to whether at least some of these provisions were undertaken with a proper understanding of the Constitution and the First Amendment.

Updated November 2006

Related

Broader law sought against 'material support' for terrorism

Case in point: Idaho grad student who is accused of providing computer-related services for suspected terrorist aims. 05.06.04

Ex-CIA agent says suspect's Web work didn't aid terrorists
Defense rests in Idaho case pitting First Amendment guarantees against government's war on terrorism. 05.27.04

Jury acquits man of charges he used Net to promote terrorism
Legal experts see verdict as only early victory in battle against government's use of Patriot Act to pursue people on basis of what they say, write and disseminate. 06.11.04

House refuses to curb Patriot Act
Provision allowing investigators to see library, bookstore records stands as amendment defeated. 07.08.04

Where Bush, Kerry stand on Patriot Act
Presidential candidates' replies to question about whether and how anti-terrorism act should be changed. 09.09.04

Federal court strikes down part of Patriot Act
Judge says provision allowing secret searches of records from ISPs, other businesses violates First Amendment because it bars companies from ever disclosing search took place. 09.30.04

9th Circuit reinstates terror indictments
Appeals court backs law against 'material support' for terrorism-linked groups; some say decision hampers free association. 12.21.04

Secrecy hurting push for Patriot Act renewal, lawmakers say
Members of Senate intelligence panel raise concerns over lack of publicly disclosed information about how law has been used. 04.29.05

House votes to rein in Patriot Act
Despite White House veto threat, lawmakers vote to limit investigators' access to library, bookstore records. 06.16.05

House approves Patriot Act renewal
Bill would extend most of law indefinitely, but would limit library, roving-wiretaps provisions to 10 years; meanwhile, Senate panel OKs its version of measure. 07.22.05

Federal court rules Patriot Act provisions still too vague
Judge says Congress failed to remedy all problems she defined in 2004 ruling that found parts of law were impermissibly vague in violation of First, Fifth Amendments. 08.01.05

Patriot Act defense in homelessness case gets boost
London bombings give credence, say officials in New Jersey town, to using anti-terror law to justify evicting homeless people from transit stations. 09.04.05

Federal judge lifts gag order in Patriot Act case
Court rules against order shielding identity of librarians who received FBI demand for patron records, but stays ruling until Sept. 20 to give government time to appeal. 09.12.05

2nd Circuit ruling keeps gag on librarians
Patriot Act case involves FBI demand for records about Connecticut library patrons. 09.21.05

Congress considers curbing some Patriot Act powers
Proposed House-Senate deal could reject Bush administration's request to grant FBI greater authority to subpoena records without a judge's approval. 11.10.05

Congress puts brakes on Patriot Act renewal
Slowdown comes amid standoff over how long to extend anti-terrorism law and filibuster threat by senators opposed to new powers it would grant FBI. 11.21.05

House OKs Patriot Act compromise
But with bill facing Senate filibuster, Majority Leader Bill Frist begins talks with White House on extending current law unchanged for one year. 12.14.05

Senate blocks Patriot Act reauthorization
Bill's supporters fail to get 60 votes needed to overcome threatened filibuster; if compromise isn't reached, 16 provisions will expire on Dec. 31. 12.16.05

House passes 1-month extension of Patriot Act
Representatives reject Senate's earlier 6-month extension; political wrangling to continue over privacy protections. 12.22.05

Senate agrees to House's 1-month Patriot Act extension
What's important, says Sen. Leahy, is 'improving the Patriot Act to strike the right balance in respecting Americans' liberty and privacy, while protecting their security.' 12.23.05

Dissenting Senate GOP, White House reach Patriot Act deal
Under agreement on changes, Republicans say, chances that libraries would have to turn over info would be remote. 02.10.06

Patriot Act compromise cleared for final passage
House speaker, Senate Democratic leader say they will endorse changes made by White House, Senate Republicans. 02.13.06

Patriot Act moves closer to renewal
In 96-3 vote, Senate rejects effort led by Russell Feingold to block reauthorization of anti-terrorism law. 02.16.06

Senate approves Patriot Act renewal
House is expected to pass legislation next week in time for Bush to sign measure before 16 provisions expire March 10. 03.02.06

Patriot Act awaits Bush's signature
House passes renewal measure by 280-138 vote, ending monthslong battle over how to balance privacy rights against security concerns. 03.08.06

FBI sought information on 3,501 people last year
Secret National Security Letters were sent to banks, telephone, credit-card companies seeking information in Patriot Act antiterrorism efforts. 05.01.06

Former prof gets 18 months more in terror case
Despite acquittal on some charges, Sami Al-Arian signed plea deal admitting he provided support to Palestinian jihadist group that killed hundreds of people. 05.01.06

2nd Circuit challenges national security letters' speech ban
Panel dismisses Connecticut case as moot, returns New York case to lower court to see how new law affects it. 05.24.06

Librarians bitterly decry gag order in Patriot Act case
Though now free to speak, four continue fighting FBI's request for information about library patrons. 05.31.06

Feds drop demand for Conn. library records
FBI official said investigators later discounted threat that led to request, but probe was slowed by librarians' failure to cooperate. 06.27.06

Justice orders release of records in national security letter case
Ruth Bader Ginsburg directs lower courts to unseal material in case involving FBI's demand for computer records from Connecticut library. 08.03.06

Man charged with relaying Hezbollah TV to N.Y. customers
Al Manar network was designated by U.S. government last March as global terrorist entity, making it a crime to conduct business with it. 08.25.06

Court allows challenge to Patriot Act to proceed
ACLU's clients, including various Muslim groups, have shown they've been harmed by anti-terrorism law, says Detroit federal judge. 10.04.06

ACLU drops challenge to part of Patriot Act
Group cites 'improvements' to Section 215, saying revisions allow people told to turn over records to consult lawyer, challenge demands in court. 10.30.06

Justice Dept.: FBI misused Patriot Act
Serious underreporting of demands for customer data from businesses, a few unauthorized investigative requests found in audit by DOJ inspector general. 03.09.07

Librarian who fended off FBI warns against government secrecy
'Terrorists win when the fear of them induces us to destroy the rights that make us free,' George Christian tells Senate panel. 04.12.07

Justice Dept. told to release info about FBI records
Federal judge sets July 5 deadline for documents about national security letters to be handed over to the Electronic Frontier Foundation. 06.18.07

ACLU lawyer: Patriot Act gag order is unconstitutional
Attorney tells federal judge statute disregards First Amendment by permitting law enforcement authorities to ban those who receive national security letters from talking about them. 08.16.07

Part of Patriot Act struck down
ACLU attorney applauds federal judge's ruling, says law had wrongly given FBI sweeping authority to control speech. 09.06.07

Lawmakers float changes to Patriot Act in wake of ruling
Federal judge's blistering attack on law sparks behind-the-scenes talks in Washington among members of Congress who wrote and revised act. 09.07.07

9th Circuit finds parts of Patriot Act unconstitutional
Three-judge panel upholds judge's ruling that language dealing with foreign terrorist groups is too vague. 12.11.07

Patriot Act constitutional, federal judge holds
Terror suspect fails in effort to get evidence against him thrown out after e-mails he sent to Web site resulted in surveillance. 01.25.08

Audit finds 34 cases of improper intelligence-gathering
FBI abuses cited in Justice Department report include unauthorized issuance of national-security letters, collection of individuals' telephone, e-mail records. 03.13.08

FBI withdraws national security letter issued to digital library
Internet Archive had challenged agency demand, alleging that letter violated free speech by prohibiting recipients from discussing it. 05.08.08

The First Amendment: A Wartime Casualty?
Civil liberties advocates fear government's history of trampling citizens' rights during times of conflict is being repeated. 02.15.02

Debating the Patriot Act: Is the sun setting on Section 215?
By Charles C. Haynes Prospect of getting checked out by the FBI for checking out the wrong book just plain scares people. 06.26.05

Patriot Act is Exhibit A on the risks of secrecy
By Paul K. McMasters The problem with excessive government secrecy is that it is a refuge for incompetence — or worse. 07.17.05

When free speech struggles against fear
By Ronald K.L. Collins Two new books, on free-speech heroes and on J. Edgar Hoover, show workings of censorship and how 'security' too often trumps liberty. 05.21.07


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