frequently asked questionscases & resources  
How does the Patriot Act involve the First Amendment?

Supporters of the USA Patriot Act contend that the law is a necessary response to the post-Sept. 11 world that contains very real threats of international and domestic terrorism. Detractors contend that at least some provisions of the Patriot Act infringe on constitutional rights. Though many provisions of the Patriot Act more directly affect Fourth Amendment freedoms (the right to be free from unreasonable searches and seizures), some provisions implicate the First Amendment.

For example, Section 215 of the Patriot Act gives the FBI broad powers to obtain records from libraries, bookstores, businesses and other entities. According to the American Civil Liberties Union, which is challenging this section in a federal court in Michigan, this provision directly affects political and religious expression. An Internet service provider might be asked to turn over records relating to individuals who engage in political speech highly critical of the government. A mosque might be forced to turn over records of members who are targeted by law enforcement. Another provision of the Patriot Act provides that it is illegal to provide “material support” for terrorist groups, but defines “material support” to include “expert assistance and advice.” This expert assistance might include advice about international law.

On March 9, 2006, President Bush signed the USA Patriot Improvement and Reauthorization Act of 2005 (H.R. 3199) and the USA Patriot Act Additional Reauthorizing Amendments Act of 2006 (S. 2271). Several provisions of the act were reauthorized along with stronger requirements that the government must meet before it can access information. Nonetheless, the act still authorizes the government to obtain secret court orders to get library, medical and business records.

Under the reauthorization of Section 215, the FBI can obtain library records of anyone if the agency shows it has “reasonable grounds” to believe the records are “relevant” for an authorized investigation to “protect against international terrorism.” If a library merely provides Internet access, it cannot be asked to hand over information regarding a patron’s Internet use. However, if a library is an Internet service provider, the government can request such information. A person, such as a librarian, who receives a Section 215 order to disclose information, is limited to disclosing the receipt of the order to an attorney or to a “person to whom disclosure is necessary to comply with such order.” The reauthorization also allows those receiving a Section 215 order to challenge the “gag order” that accompanies all requests for information. However, those wanting to challenge the nondisclosure requirement of the order must wait a year to begin proceedings. A sunset provision for Section 215 sets it to expire Dec. 31, 2009.

At the signing of the act’s reauthorization, President Bush issued a signing statement saying that despite the law’s requirement for disclosure about government investigations, he would allow the executive branch to withhold information if he decided it would “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” The Senate Judiciary Committee opened hearings in June 2006 regarding presidential signing statements.

Have there been measures in Congress that would limit the Patriot Act?

Yes, numerous bills have been introduced in Congress either to revoke or modify certain powers granted to law enforcement by the Patriot Act. These have included:

  • 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 21, 2003, by Sen. Russ Feingold).
  • S. 1709 — Security and Freedom Ensured Act of 2003 (introduced Oct. 2, 2003, by Sen. Larry Craig, R-Idaho).

Although none of the measures to curtail the Patriot Act have ever received congressional approval, some of the ideas outlined in them were incorporated into the bill Congress passed in March 2006 to renew the act. Members of Congress debated renewing provisions of the Patriot Act for more than six months before a compromise could be reached that balanced the concerns of supporters and opponents of the law. For example, individuals receiving Section 215 orders to disclose information are now able to challenge the “gag order” that accompanies it. This requirement is in line with court decisions that held that the gag orders were unconstitutional.

print this   Print
Libraries & First Amendment issues >
Banned books
Internet Filters & Public Libraries
Patriot Act