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Commentary

The Impact of the USA PATRIOT Act: An Update

By Nancy Kranich
FEPP Senior Research Fellow

"…the Patriot Act was enacted in an environment where
there was virtually no discussion or careful scrutiny.
Maybe there shouldn't have been because we needed
to act quickly. But now we have the time and room for
thought about what we need in the post-9/11 world."

- Stephen Schulhofer
national security expert at New York University School of Law
1

Editor's Note: Controversy continues to swirl around the "PATRIOT" Act. For updates, see Section 215 of the USA PATRIOT Act and National Security Letters: An Update (October 2005), Patriot Act Renewal Stalls in Congress (January 2006), and "Patriot" Act Reforms Are Defeated (March 2006).

Introduction

A FEPP commentary in May, 2003 outlined how enhanced surveillance powers granted under the USA PATRIOT Act and related measures license law enforcement officials to peer into Americans' most private reading, research, and communications. The commentary explained how the Act's hastily passed provisions not only violate the free expression and privacy rights of those using public libraries and bookstores; they also sweep aside constitutional checks and balances by authorizing intelligence agencies to gather information in situations that may be completely unconnected to a potential criminal proceeding. It also pointed out that it is not clear that these enhanced investigative capabilities will make us safer, for under the new provisions, far more information is going to the same intelligence agencies that were failing to manage the ocean of information they collected prior to September 11. This essay updates that commentary, illuminating both recent attempts to overturn portions of the law and new attempts to monitor the everyday habits of citizens.

The PATRIOT Act in Practice

Almost two years after passage of the USA PATRIOT Act, little is known about how the law is being used to track terrorists or innocent Americans. The Justice Department has foiled numerous attempts by lawmakers and civil libertarians to learn how the Administration has deployed new tools granted under the Act. Congressional hearings this spring yielded virtually no new information about the number of times individuals' library records have been sought or how many court orders have been obtained to watch someone's computer activities or conduct other surveillance on U.S. citizens. Justice officials claim that even generic numbers are classified, and are provided confidentially only to congressional intelligence committees.

A breakthrough in the deadlock over releasing information about the USA PATRIOT Act came on May 13, 2003, when the Justice Department issued a 60-page response to questions from House Judiciary Chairman F. James Sensenbrenner (R-WI) and ranking member John Conyers, Jr. (D-MI), providing some details about the federal government's domestic war on terrorism.2 The report's author asserted that anti-terrorism measures enacted after September 11 have been crucial in disrupting terrorist plots. But the report also confirmed that the Justice Department has used many of these anti-terrorism powers to pursue defendants for crimes unrelated to terrorism, including drug violations, credit card fraud, and bank theft.

The report released to the public excludes any mention of searches imposed on libraries and bookstores, as allowed under section 215 of the PATRIOT Act. Later in May, however, Assistant Attorney General Viet Dinh told members of the House Judiciary Committee that federal agents visited about 50 libraries in the past year, asserting that most contacts were at the request of librarians reporting suspicious activity.3 This statement, reported in The New York Times, puzzled librarians who had previously learned from a University of Illinois survey that hundreds of libraries had reported contacts from federal agents following the 9/11 attacks.

Sure enough, Barbara Comstock, spokesperson for the Department of Justice, issued a correction on June 2, stating, "The New York Times inaccurately reported that Assistant Attorney General Viet Dinh said FBI 'agents have contacted about 50 libraries nationwide in the course of terrorism investigations.' The transcript of the hearing … makes clear that AAG Dinh was speaking of ordinary criminal cases rather than national security cases. Information on library contact in national security investigations is provided to Congress in a classified format, as was also noted in AAG Dinh's testimony."4

When Attorney General Ashcroft testified before the House Judiciary Committee on June 5 - his first appearance in 18 months - he skirted numerous questions about the monitoring of library and bookstore use under section 215. Instead, Ashcroft pleaded for more surveillance powers. In exasperation, Representative William D. Delahunt (D-MA) declared, "It appears that the American people feel that the government is intent on prying into every nook and cranny of people's private lives, while at the same time doing all it can to block access to government information that would inform the American people about what is being done in their name."5

Civil libertarians have fared no better at forcing the release of data from the Justice Department. On May 19, 2003, Judge Ellen Segal Huvelle of the U.S. District Court in Washington ruled that the government had adequately replied to four advocacy groups' Freedom of Information Act request regarding its use of new surveillance powers under section 215. The decision was the latest chapter in a litigation process that began when the plaintiffs first filed an FOIA Request on August 21, 2002, resulting in the January 2003 release of documents that were heavily blacked-out. Though the judge was sympathetic to the groups, she wrote, "While plaintiffs' arguments in favor of disclosure are not without force, they are ultimately insufficient to overcome the agency's expert judgment that withholding the disputed information is authorized by the Executive Order because it is reasonably connected to the protection of national security."6

What was disclosed through the FOIA lawsuit, however, was the fact that the FBI has issued scores of "national security letters," a type of administrative subpoena that is issued independently by FBI field offices and is not subject to judicial review unless a case comes to court. Documents also revealed that the Attorney General has personally signed more than 170 "emergency foreign intelligence warrants," three times the number authorized in the preceding 23 years, according to recent congressional testimony. "When this kind of power is used in the regular criminal justice system, there are some built-in checks and balances," stated David Sobel, general counsel of the Electronic Privacy Information Center. "The intelligence context provides no such protection. That's the main problem with these kinds of secretive procedures."7

Meanwhile, Congress has received two Justice Department Inspector General reports that identify dozens of cases in which department employees, as well as officers of the Drug Enforcement Administration and the Immigration and Naturalization Service, have been accused of serious civil liberties violations involving enforcement of the PATRIOT Act. The July document reported that the Inspector General's office had received 34 complaints that it considered credible in the six-month period that ended on June 15, 2003. The June document found broader problems in the department's treatment of hundreds of illegal immigrants rounded up after the terrorist attacks of September 11, 2001.8

Both reports brought widespread, bipartisan criticism of the Justice Department by members of Congress. The New York Times quoted Rep. John Conyers' statement that "[t]his report shows that we have only begun to scratch the surface with respect to the Justice Department's disregard of constitutional rights and civil liberties. … I commend the Inspector General for having the courage and independence to highlight the degree to which the administration's war on terror has misfired and harmed innocent victims with no ties to terror whatsoever."9

Congressional Attempts to Thwart the Impact of the USA PATRIOT Act

Growing public concern about the impact of the PATRIOT Act prompted Congressman Bernie Sanders (I-VT) to introduce legislation in February 2003 to counter some of the most egregious provisions of the law. At the time, pundits never expected him to add more than a few additional names to the first 24 co-sponsors. By mid-August 2003, however, Sanders had garnered more than 130 sponsors - Democrats and Republicans, liberals and conservatives alike - in support of his "Freedom to Read Protection Act," H.R. 1157, a bill that would exempt libraries and bookstores from section 215 and would require a higher standard of proof than mere suspicion for search warrants presented at libraries and bookstores. When considering co-sponsoring the Sanders bill, Don Young (R-AK) told a group of reporters in May that "the Patriot Act was not really thought out. I'm very concerned that, in our desire for security and our enthusiasm for pursuing supposedly terrorists, that sometimes we might be on the verge of giving up the freedoms which we're trying to protect. … It goes to show you I'm willing to look at the right side of an issue. …. I don't think it's anybody's business what I'm reading in the library."10

On June 2, four members of Congress sent a letter to House Judiciary Committee Chair Sensenbrenner requesting that he hold hearings on H.R. 1157. Sanders stated: "Librarians and booksellers across the country fear that the Patriot Act is causing a chilling effect on their patrons. It is imperative if we are really going to effectively oversee the federal government's use of its new Patriot Act powers to hear from the librarians and booksellers who are on the front lines. I believe that there is widespread public interest in such hearings, and that these alternative sources might provide the Committee a different picture than the official line from the Department of Justice."11 An attempt to add the bill as an amendment to a piece of appropriations legislation was denied due to a technicality in late July. Future prospects for the bill remain unclear, given the resistance of both Sensenbrenner and the House leadership.

Nevertheless, a similar attempt by Representative C.L. "Butch" Otter (R-ID) to withhold funding for "sneak and peek" searches of private property under section 213 of the PATRIOT Act did pass by 309-118 in the House, demonstrating substantial hidden support for cutting back the government's powers. "Sneak and peek" searches allow the government to search homes secretly, confiscate property, and monitor computers, without notifying the subjects of the search, or only informing them later that a warrant had been issued.

Otter's action came after the Justice Department had informed Congress it had already executed 47 "sneak and peek" search warrants and had plans to conduct 250 more searches in the near future. In his remarks on the House floor, Otter stated: "Not only does this provision allow the seizure of personal property and business records without notification, but it also opens the door to nationwide search warrants and allows the CIA and the NSA to operate domestically. … American citizens, whom the government has pledged to protect from terrorist activities, now find themselves the victims of the very weapon designed to uproot their enemies."12

Another House bill to curb the government's powers, introduced on June 11, 2003, by Representative Joseph Hoeffel (D-PA) and others, is the "Surveillance Oversight and Disclosure Act of 2003," H.R. 2429. This bill would amend the Foreign Intelligence Surveillance Act of 1978 (FISA) to improve the administration and oversight of foreign intelligence surveillance by requiring the Attorney General to report on the aggregate number of persons targeted for orders issued under this Act, including those targeted for access to records under section 215 of the PATRIOT Act. The bill would also require the Attorney General to submit a separate statement of all such requests made of institutions operating as public libraries or serving as libraries of secondary schools or institutions of higher education.

In the Senate, several senators are now following Representative Sanders' lead, with a variety of bills pending. In May, Senator Barbara Boxer (D-CA) introduced the "Library and Bookseller Protection Act of 2003," S. 1158, a companion bill to HR 1157, and two months later, Senator Russ Feingold (D-WI) introduced the "Library, Bookseller, and Personal Records Privacy Act," S. 1507. This bill would limit the government's ability to monitor library and bookstore records secretly under section 215, restore a requirement that the FBI make a factual, individualized showing that records sought pertain to a suspected terrorist, and limit the agency's subpoena to only relevant library records. It would also limit the use of the FBI's "national security letter" authority, which the agency is using as an "administrative subpoena" that requires no court approval. Feingold says his bill "recognizes that under certain circumstances the FBI should have access to library, bookseller, or other personal information and simply puts safeguards in place to protect the rights of law-abiding citizens."13

The same day that Feingold introduced his bill, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR) introduced the "Protecting the Rights of Individuals Act," (the PRI Act), S. 1552, intended to restore some civil-liberties protections weakened by the PATRIOT Act. Among its provisions, the bill would restore earlier limits on the FBI's ability to obtain records through a FISA court order, require even higher, probable-cause standards for library, bookstore, and medical records, and address the issue of "national security letter" authority. It would also curtail some of the most draconian electronic surveillance measures that capture communications with a "pen register" or "trap and trace" order, as well as require the Attorney General to issue annual public reports on the number of searches conducted under the USA PATRIOT Act.14

Even before these developments, Senate Republicans backed down from an effort led by Senator Orrin Hatch (R-UT), chair of the Senate Judiciary Committee, to make permanent the sweeping anti-terrorism powers of the 2001 act, clearing the way for passage of a less divisive measure that would still expand the government's ability to spy on foreign terrorist suspects in the United States. In return, the Senate voted 90-4 to approve a measure sponsored by Charles Schumer (D-NY) and Jon Kyl (R-AZ) to expand the government's ability to use secret surveillance tools against terrorist suspects who are not thought to be members of known terrorist groups. Representative Sensenbrenner reportedly stated that extending the life of the Patriot Act "will happen over his dead body."15 Assuming that both the Senate and House Judiciary Committees hold to this position, many sections of the USA PATRIOT Act will remain temporary, expiring in 2005.16

Congressional Response to Other Surveillance Activities

Many members of Congress are also reassessing the constitutional implications of other surveillance activities, particularly as they impact the free expression and privacy of innocent Americans. In addition to attempts to curb the government's powers under the USA PATRIOT Act, Congress has halted, at least temporarily, several related programs. In May, the Defense Advance Research Projects Agency finally released a comprehensive report to Congress on its secret Total Information Awareness program, later renamed the Terrorism Information Awareness Program (TIA).17 According to an analysis by the Electronic Frontier Foundation (EFF), the report demonstrates little concern for data accuracy, and never mentions TIA's accountability to individuals or how privacy or civil liberties will be addressed.18

Ongoing Congressional concern that the TIA program will collect and compile information and records of activity on every American citizen resulted in the Senate voting unanimously to end all funding for TIA. But the House voted only to ban the use of such technology on American citizens without congressional authorization. A conference committee will determine the fate of funding in the fall of 2003.19

In the meantime, Admiral John Poindexter, the Program's architect, tendered his resignation from the Defense Department on August 12, after flaming more controversy over his scheme to develop a terrorism futures market. With or without its leader, Senator Wyden lamented, "I am still determined to shut the entire program this fall. I want to close the Poindexter umbrella."20

On July 10, the Senate also voted to withhold funding for the administration's Computer Assisted Passenger Prescreening System (CAPPS II) until an error-correcting system is in place and safeguards are employed against abuse. Under CAPPS II, airline passengers are screened by searching through governmental and private databases. Before final testing, passengers were stopped from boarding flights based on information - accurate or not - in the CAPPS I system.

Several men named David Nelson, including one who worked for Congress, can testify just how error-prone this system has been. A number of men by this name were pulled off airplanes repeatedly over a period of months, searched, questioned by the FBI, and sometimes searched again in an apparent dragnet for a terrorist by that name.21 No appeals process was in place to correct errors. In response to the resulting criticism about the privacy and accuracy of the prescreening system, the Transportation Safety Administration (TSA), which administers the program, ceased testing CAPPS II in June pending a thorough privacy policy review.22

On August 1, the Department of Homeland Security issued a new set of proposed guidelines for its controversial system.23 These proposed guidelines show that officials intend to use the system even more broadly to keep people thought to be dangerous, including those wanted for domestic terrorism or violent crimes, off planes. Although critics concede that the new proposal narrows the use and collection of personal information, at least one, David Sobel, worries that CAPPS II will become a "massive enforcement mechanism. It opens the door for invasive background checks on all citizens."24

New Civil Liberties Challenges at the Federal Level

While some members of Congress are trying to curb excessive security measures, others, following the lead of Attorney General Ashcroft, are seeking new opportunities to expand surveillance. Ashcroft is mounting a personal campaign to espouse the benefits of the current anti-terrorism legislation, even as controversy grows. According to Viet Dinh, now a former Assistant Attorney General and the drafter of the PATRIOT Act, Ashcroft's agenda is "to correct the misperceptions that are out there and to disabuse the American public of the misinformation they've gotten."25 But many policymakers and public interest advocates believe that this defensive action signifies that the Administration is losing its footing. Laura Murphy, Director of the ACLU Washington Office, asked: "How often do you see the Attorney General go on sort of a charm offensive? I see this as a defensive measure on his part."26

Ashcroft is using a 20-city, 10-day "Victory Tour" during the dog days of August to drum up support for maintaining the existing law as well as advocating new legislation - "Patriot III" - that would grant the federal government new powers, including increasing prison sentences, expanding secret searches, interfering with Arab business transactions, and easing secret access to business records. Senator Hatch is expected to introduce the Vital Interdiction of Criminal Terrorist Organizations Act, or "VICTORY Act" in September 2003.27

A draft obtained by the National Consumer Coalition Privacy Group reveals that Title V of this Act would have the most direct effects on privacy and other civil liberties. Section 503 would give the Attorney General the power to issue "administrative subpoenas" in investigations related to the USA PATRIOT Act 's extremely broad definition of "terrorism." Section 504 specifically mentions subpoenaing consumer records from telecommunication companies, Internet service providers, and financial service firms such as banks. Both sections would grant immunity from civil liability for cooperating with the subpoena without challenging it, even if it is later found unconstitutional.28

When introduced, it will undoubtedly take the place of the rumored "Domestic Security Enhancement Act of 2003" - the so-called Patriot Act II, a more extreme version of the USA PATRIOT Act that would have made it easier for the government to initiate surveillance and wiretapping of U.S. citizens, repealed current court limits on local police gathering information on religious and political activity, permitted law enforcement officers to seek roving warrants to monitor cellular telephone and other wireless communications, and allowed the government to obtain credit and library records without a warrant through the use of national security letters - a practice already in use without specific Congressional authorization.29

Another troubling anti-terrorism measure is an interim set of maritime security regulations issued by the Department of Homeland Security. These regulations authorize maritime vessel owners, such as cruise ship operators, to subject their passengers to indiscriminate identification checks and invasive searches. According to the Electronic Frontier Foundation, the regulations subject passengers to unwarranted invasions of privacy, enable extensive monitoring of passengers' activities, increase the risk of personal information being abused, facilitate identity theft, impair the constitutional rights to travel and associate freely, deny passengers and workers access to information about them that is collected by the government, and submit workers to invasive biometric identification measures of dubious effectiveness. EFF attorney Kevin Bankston notes: "I.D. checking and invasive searches are quickly becoming the norm for every mode of public transportation, and if this trend continues, Americans will soon be unable to exercise their right to travel without first surrendering their right to privacy."30

While the Pentagon is curtailing its TIA program, it is putting cameras and computer code in place to launch what may be the government's widest-reaching, most invasive mechanism yet for keeping tabs on ordinary citizens. As early as September 2003, the military will issue contracts for "Combat Zones That See," or CTS, a system that will collect and coordinate visual images and combine them with databases in order to track and link a series of activities that could be helpful in detecting potential attackers. CTS is the brainchild of DARPA, the Pentagon's Defense Advanced Research Projects Agency - the same agency that employed John Poindexter.31

Although the Pentagon claims that the technology will help troops navigate in perilous urban areas like Baghdad, defense experts believe the surveillance effort could be used domestically to keep entire cities under watch. "This gives the U.S. government capabilities Big Brother only pretended to have," said John Pike, director of Globalsecurity.org, a defense think tank. Added Jim Lewis, of the Center for Strategic and International Studies: "Right now, this may be a military program. But when it gets up and running, there's going to be a huge temptation to apply it to policing at home."32 This effort comes on the heels of a similar surveillance program in Tampa, Florida, tested for two years, then cancelled with a statement from its police department on August 20 that, "[w]hile the software proved reliable in testing, there have been no positive identifications or arrests attributed to the software."33

Not to be overlooked is the FBI's latest claim that Internet telephone calls pose a national security threat that must be countered with new wiretap rules. Representatives of the FBI's Electronic Surveillance Technology Section are lobbying the Federal Communications Commission for new Internet eavesdropping rules that would force broadband companies to provide more efficient, standardized surveillance facilities. Such new rules, claimed necessary by the FBI because terrorists could otherwise frustrate legitimate wiretaps by placing phone calls over the Internet, could substantially change the way that cable modem and DSL (digital subscriber line) companies operate by requiring them to comply with federal regulations that would establish a central hub for police surveillance of their customers. Civil libertarians warn that such hubs could facilitate broad surveillance of other Internet communications such as e-mail, Web browsing and instant messaging. Under existing laws, the FBI already has the ability to seek a court order to conduct surveillance of any broadband user though its DCS1000 system, previously called Carnivore. But the Bureau worries that unless Internet providers offer surveillance hubs based on common standards, lawbreakers can evade or, at the very least, complicate surveillance.34

New Civil Liberties Challenges at the State Level

The states are joining in the federal effort to mine data with the stated purpose of protecting citizens from terrorists. In mid-August, Secretary of Homeland Security Tom Ridge told the nation's governors that his department was taking steps to make sure they are given all necessary intelligence to respond quickly to a terrorist attack or the threat of one. "I'm confident that if we can work through governors down through mayors and local governments, we will get stronger and more secure every single day in the future as we have every single day since 9/11."35

But the Democratic staff of the Senate Governmental Affairs Committee disagrees. On August 13, they issued a report on homeland security information-sharing among federal, state, and local officials, finding it entirely unsatisfactory. "State and local first responders and first preventers still do not systematically receive from the Bush Administration the information they need to prevent or respond to another catastrophic terrorist attack, nor does vital information flow effectively from them to the federal government."36

In September, authorities in the District of Columbia and four large Eastern states plan to launch an effort to enable federal, state, and local agencies to search instantly through millions of law enforcement records. By limiting the system to available law enforcement records and not storing all available data in a central repository for information about all Americans, organizers hope to avoid criticism from Congress and privacy experts, who have said other federal data-mining systems proposed for aviation and counter-terrorism are too intrusive.37

Likewise, in Florida, police are creating a counterterrorism database designed to give law enforcement agencies around the country a powerful new tool to analyze billions of records about criminals and ordinary Americans alike. Organizers said the "Matrix" system, short for Multistate Anti-Terrorism Information Exchange, enables investigators to find patterns and links among people and events faster than ever before, combining police records with commercially available collections of personal information about most American adults.

The state-level program, aided by federal funding, is poised to expand across the nation at a time when Congress has been sharply critical of similar data-driven systems on the federal level. The Justice Department has provided $4 million and the Department of Homeland Security has pledged $8 million to expand the Matrix program nationally and will provide the computer network for information-sharing among the states. At least a dozen states have expressed interest in adding their records.38

Like their federal counterparts, state-based data mining systems could target Americans innocent of any wrongdoing because they collect information (and misinformation) on everyone, much of which can be misused. Also troubling, such data collection chills free speech because the threat of information surveillance inevitably discourages people from speaking out – particularly disagreeing with the government.

Legal Challenges to the USA PATRIOT Act

The public interest community is challenging the most draconian provisions of the USA PATRIOT Act through the courts. The ACLU filed the first lawsuit challenging section 215 on July 30, 2003 in in federal court in Michigan.39 The suit asserts that section 215 violates the privacy and First Amendment rights of all Americans to say what they want, associate with the groups they choose, and freely practice their religion. The case was filed on behalf of six advocacy and community groups including an Arab-American civil rights organization and a Muslim community association who believe they are targets of investigations because of their ethnicity, religion, and political associations. It charges that the law's search warrant standard falls short of the probable-cause requirement in the Fourth Amendment, and that the breadth of information that can be accessed by the government, as well as the "gag order" imposed on libraries and other holders of information, chills free expression.

A second federal constitutional challenge was filed the following week in Los Angeles by the Center for Constitutional Rights (CCR) on behalf of the Humanitarian Law Project, which works for peaceful resolution of conflicts. The suit challenges a USA PATRIOT ACT provision making it a crime to provide "expert advice and assistance" to groups designated as "terrorist" by the secretary of state.40 CCR contends that the inclusion of expert advice and assistance in the definition of "material support" to terrorist groups is void for vagueness and encroaches on core First Amendment activities. "Under this provision, even providing assistance in negotiating a peaceful settlement is proscribed with respect to a foreign terrorist organization," said Nancy Chang, senior attorney at the Center for Constitutional Rights. "The core of the First Amendment is protecting controversial speech."41

Update: On January 22, 2004, the federal district court ruled that the "expert advice and assistance" provision of the law is unconstitutionally vague and prohibited the government from enforcing it against the plaintiffs in the case. That decision was affirmed by the Ninth Circuit Court of Appeals. Congress then amended the law in an attempt to provide more specificity to its vague terms, but in 2007, the Ninth Circuit once again affirmed the district court's view that several terms in portion of the anti-terrorism law making it a crime to provide "material support or resources" to a listed organization law are unconstitutionally vague. On September 30, 2009, the Supreme Court granted the government's petition for review. 41a

In her article about the two suits in the National Law Review Online, Marcia Coyle quotes several scholars sympathetic to the suits but cognizant of the hurdles in succeeding. The scholars believe that the secrecy provisions of section 215 will create both legal and practical obstacles to submitting evidence and establishing the plaintiffs' standing to sue. Coyle also cites scholars who believe that the CCR suit is even less likely than the ACLU's to appeal to both the courts and the public. Courts, they say, will claim that those providing expert advice to terrorist organizations ought to understand how it will be used. Speaking of both suits, Emory University School of Law Professor Charles Shanor told Coyle: "Part of the strategy is not simply to win the lawsuit but to raise public consciousness of the issue, to bring it before Congress. This is not the final gunshot. It's the opening salvo."42

Growing Local Resistance to the USA PATRIOT Act

With each passing day, public outcry grows over violations of civil liberties under the USA PATRIOT Act. Three states and 149 cities, towns, and counties have passed Civil Liberties Safe Zone resolutions or ordinances to protect the civil liberties of their 17,025,046 residents.43 One, Newton, Massachusetts, unanimously passed its resolution supporting the U.S. campaign against terrorism, but also voicing a commitment "that the campaign NOT be waged at the expense of essential civil rights and liberties of citizens of this country."44 Another citizen action is the work of the National Coalition to Repeal the Patriot Act, which held independent public hearings in cities around the country in July in order to collect information and testimony about the Act, civil liberties, racial profiling and police brutality.45

At the same time, the American Civil Liberties Union has launched a campaign in two states, Florida and New Mexico, to urge librarians to warn the public about the section 215 power to search patron records to find out what books they have borrowed or purchased, and its nullification of the free speech rights of bookstores and libraries to disclose the search. The ACLU is urging librarians in Florida to post placards warning patrons that their library records could become the target of government surveillance.46

Librarians across the country have been important allies in fighting the Patriot Act. Almost all state library associations have followed the American Library Association lead in passing resolutions opposing sections of the Act.47 Local librarians are working to minimize monitoring of library use by adopting privacy policies based on a model recently drafted by the American Library Association,48 destroying personally identifiable information not needed to administer services, and educating the public about the problems with the law. And readers are joining the revolt. For example, in late May, four University of California - Santa Cruz students staged a protest outside the city's public library to raise awareness of government surveillance, after discovering that their research on German terrorist Ulrike Meinhof might have triggered federal agents to investigate them.49

The Mounting Challenge to Free Expression

Under the USA PATRIOT Act and related measures, far more information is going to the same intelligence agencies that failed to manage the ocean of information they collected before September 11. The recent report by the joint House and Senate intelligence committees makes clear that the "Intelligence Community failed to capitalize on both the individual and collective significance of available information that appears relevant to the events of September 11. … [T]he Intelligence Community, for a variety of reasons, did not bring together and fully appreciate a range of information that could have greatly enhanced its chances of uncovering and preventing Osama Bin Ladin's plan to attack these United States on September 11, 2001."50 The expanded powers granted by the PATRIOT Act have not remedied this lack of coordination between law enforcement and intelligence agencies, one of the prime reasons why the 9/11 plot was not foiled.

The PATRIOT Act and related measures chill civil liberties, particularly free expression. Today, whether it is the books you read or the paths you travel, you are subject to government inspection and review. Americans in communities throughout the country are beginning to speak out against government policies that threaten - not strengthen - their freedoms and security. At the same time, according to the latest "State of the First Amendment" survey, they are supporting their First Amendment freedoms - shaken by the terrorist attacks - at pre-9/11 levels, and expressing increased concern that they have too little access to information about the federal government's activities. Stated the survey's author, Ken Paulson, executive director of the First Amendment Center: "Two years after the terrorist attacks in New York and Washington, D.C., our nation appears to have caught its breath - and regained some perspective."51

Congress is taking note. Republicans and Democrats, conservatives and liberals alike, are working together on legislation that will thwart the most oppressive sections of the PATRIOT Act and eliminate funding for programs that undermine personal privacy. At the same time, though, Attorney General Ashcroft persists in cloaking his anti-terrorism measures under a veil of secrecy.

Momentum is growing for change - for a rewrite of the USA PATRIOT Act that respects the need of federal law enforcement to fight terrorism while providing the necessary safeguards to protect constitutional liberties, strengthen congressional oversight, and protect the free expression and privacy rights of citizens. Without such reforms, the terrorists will achieve their greatest victory by undermining the very freedom that has been so vital to the success of American democracy.

August 27, 2003; most recent update: October 2, 2009

NOTES

1. Quoted in Marcia Coyle, "Experts see hurdles for suits over Patriot Act: First two actions likely aren't the last," National Law Journal News, Aug. 11, 2003. http://www.nlj.com/news/081103patriot.shtml

2. U.S. Department of Justice. Report to the House Judiciary Committee on the USA PATRIOT Act and Related Measures. May 13, 2003. Available at: http://www.aclu.org/Privacy/Privacy.cfm?ID=12746&c=130

3. Eric Lichtblau, "Justice Department Lists Use of New Power to Fight Terror," New York Times, May 21, 2003, p. A1.

4. Barbara Comstock, "Press Release on DOJ Testimony Regarding Libraries," U.S. Department of Justice, June 2, 2003.

5. Quoted in Susan Schmidt, "Ashcroft Wants Stronger Patriot Act," The Washington Post, June 6, 2003, p. A11.

6. Memorandum Opinion, American Civil Liberties Union, et. al. v. U.S. Department of Justice (D.D.C. May 19, 2003). http://www.aclu.org/Files/ OpenFile.cfm?id=12674

7. Quoted in Dan Eggen and Robert O'Harrow Jr., "U.S. Steps Up Secret Surveillance," The Washington Post, Mar 24, 2003. p. A1; for more information about National Security Letters, see American Civil Liberties Union, Unpatriotic Acts: The FBI's Power to Rifle Through Your Records and Personal Belongings Without Telling You, July 2003. http://www.aclu.org/SafeandFree/SafeandFree.
cfm?ID= 13246&c=206&MX=919&H=0

8. Office of the Justice Department Inspector General, Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act (as required by Section 1001(3) of Public Law 107-56), U.S. Department of Justice, July 17, 2003.
http://www.usdoj.gov/oig/special/03-07/index.htm; and The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks, June 2, 2003.
http://www.usdoj.gov/oig/special/03-06/index.htm

9. Philip Shenon, "Report on USA Patriot Act Alleges Civil Rights Violations." New York Times, July 20, 2003. p. A1.

10. Dean Schabner, "Alaska Passes Anti-Patriot Act Resolution; Second State to Oppose Feds," ABC News, May 23, 2003. http://abcnews.go.com/ sections/us/DailyNews/alaska_patriot030523.html

11. Bernard Sanders, John Conyers, Jeff Flake, and Ron Paul, Letter to James Sensenbrenner, Chair of the House Judiciary Committee, requesting a hearing for H.R. 1157, June 2, 2003. http://bernie.house.gov/documents/Hearing_Request_
re_Freedom-to-Read.pdf; "Sanders, Bipartisan Coalition Asks Committee to Take Testimony From Librarians and Booksellers on Federal Use of Patriot Act Powers," June 4, 2003. http://bernie.house.gov/documents/releases/20030604155310.asp

12. C.L.Otter, Remarks Upon Introducing an Amendment to the Departments of Commerce, Justices, and State, the Judiciary, and Related Agencies Appropriations Act, 2004, Congressional Record, July 22, 2003, p. H7290.

13. "Bills Would Limit FBI's Patriot Act Access to Library Records," American Libraries Online, Aug. 4, 2003. http://www.ala.org/Template.cfm?Section=
Search&template=/ContentManagement/ContentDisplay.cfm&ContentID=40209

14. For up-to-date status reports of pending legislation, see the Bill of Rights Defense Committee, Proposed Legislation [Web site]. http://www.bordc.org/legislation.htm

15. Quoted in Eric Lichtblau, "Senate Deal Kills Effort to Extend Antiterror Act," New York Times, May 9, 2003, p. A1.

16. About the same time, Democrats on the Senate Intelligence Committee defeated a White House attempt to give the CIA and the Pentagon new and unusual authority to probe into the lives of Americans. The measure would have allowed the CIA and the Pentagon to issue "national security letters" without judicial approval, in order to search records of Internet providers, credit-card companies and other institutions.

17. Defense Advance Research Projects Agency, Report to Congress Regarding the Terrorism Information Awareness Program, U.S. Department of Defense, May 20, 2003. http://www.darpa.mil/body/tia/tia_report_page.htm

18. Electronic Frontier Foundation, EFF Review of May 20 Report on Total Information Awareness. http://www.eff.org/Privacy/TIA/20030523_
tia_report_review.php

19. Bradley Graham, "Poindexter Resigns but Defends Programs: Anti-Terrorism, Data Scanning Efforts at Pentagon Called Victims of Ignorance," The Washington Post, Aug. 13, 2003, p. A2. http://www.washingtonpost.com/wp-dyn/articles/A51578-2003Aug12.html

20. Carl Hulse and Thom Shanker, "Senators Want to Block Spending on Terrorist Initiatives," New York Times, Aug. 14, 2003. p. A20.

21. Tom Ramstack and Patrick Badgely, "Name won't fly if you are David Nelson," The Washington Times, June 17, 2003. http://www.washtimes.com/business/20030616-104109-4241r.htm

22. Roy Mark, "Senate Cans CAPPS II Funding," Internet.com, July 14, 2003.
http://dc.internet.com/news/article.php/2234511

23. U.S. Department of Homeland Security, Transportation Security Administration, Notice of Status of System of Records, Privacy Act of 1974, Interim Final Notice, Request for Further Comments, Federal Register. Vol. 68, # 148, Aug. 1, 2003, pp. 45265-69.

24. Robert O'Harrow Jr., "Surveillance Proposal Expanded: CAPPS II Would Look At More Air Passengers," Washington Post, July 31, 2003, p. E1.

25. Eric Lichtblau, "Bush Administration Plans Defense of Terror Law," New York Times, Aug. 19, 2003 p. A1. See also the U.S. Department of Justice web site promoting the USA PATRIOT Act: http://www.lifeandliberty.gov/

26. Quoted in Curt Anderson, "As Criticism Mounts, Ashcroft on the Road to Defend Patriot Act," The Houston Chronicle, Aug. 19, 2003, p. 3.

27. James Gordon Meek, "Ashcroft tour to plug terror bill," The New York Daily News, Aug. 6, 2003. http://www.nydailynews.com/08-06-2003/news/
wn_report /story/106872p-96686c.html

28. NCC Privacy Group, "Privacy Villain of the Week: VICTORY (over privacy) Act," E-mail message sent Aug. 18, 2003. http://www.nccprivacy.org/
handv/index.htm

29. Keith Perine, "GOP Antiterrorism Measure Takes Aim at Drug Trafficking, Money Laundering," CQ TODAY, Aug. 7, 2003; and Dan Eggen, "GOP Bill Would Add Anti-Terror Powers," The Washington Post, Aug. 21, 2003, p. A3.

30. "New Maritime Security Regulations Threaten Civil Liberties: Electronic Frontier Foundation Defends Traveler Privacy," EFFector, Vol. 16, # 20, Aug. 4, 2003; Electronic Frontier Foundation, Comments on Interim Vessel Security Regulations, U.S. Department of Transportation, Docket Number USCG-2003-14749, July 31, 2003. http://www.eff.org/Privacy/Surveillance/20030731_
maritime_id_comments.php; and, U.S. Department of Homeland Security, "Maritime Vessel Security Rules and Regulations." Federal Register, Vol. 68, # 126, July 1, 2003, pps. 39292-39315. http://a257.g.akamaitech.net/7/257/2422/
14mar20010800/edocket.access. gpo.gov/2003/pdf/03-16188.pdf

31. Noah Shachtman, "Plan for Tracking Everything That Moves Big Brother Gets a Brain," The Village Voice, July 9-15, 2003. http://www.villagevoice.com/issues/0328/shachtman.php

32. Ibid.

33. Dibya Sarkar, "Tampa Drops Face Software," Federal Computer Week-FCW.com, Aug. 20, 2003. http://www.fcw.com/geb/articles/2003/0818/web-face-08-20-03.asp

34. Declan McCullagh, "FBI targets Net phoning," CNET News.com, July 29, 2003. http://news.com.com/2100-1028-5056424.html

35. Michael Janofsky, "Intelligence to Be Shared, Ridge Tells Governors," New York Times, Aug. 19, 2003, p. A19.

36. U.S. Senate Governmental Affairs Committee, Full Minority Staff, Senator Joseph I. Lieberman, Ranking Member, "State and Local Officials: Still Kept in the Dark About Homeland Security," Aug. 13, 2003.
http://www.fas.org/irp/congress/2003_rpt/gac-info.pdf

37. Spencer S. Hsu, "Crossing Lines to Fight Terrorism DC Four States to Share Law Enforcement, Other Records," The Washington Post, Aug. 6, 2003; p. B2. http://www.washingtonpost.com/wp-dyn/articles/A21710-2003Aug5.html

38. Robert O'Harrow Jr., "U.S. Backs Florida's New Counterterrorism Database 'Matrix' Offers Law Agencies Faster Access to Americans' Personal Records," The Washington Post, Aug. 6, 2003, p. A1. http://www.washingtonpost.com/ac2/wp-dyn/ A21872-2003Aug5?language=printer

39. Muslim Community Association of Ann Arbor, et. al. v. Ashcroft and Mueller, No. 03-72913 (E.D. Mich. July 30, 2003).
http://www.aclu.org/Files/OpenFile.cfm?id=13247

40. Humanitarian Law Project v. Ashcroft, No. CV 03-6107 ABC (C.D. Cal.). http://www.ccr-ny.org/v2/legal/govt_misconduct/govtArticle.asp?ObjID= F0F9XFivgG&Content=70

41. Center for Constitutional Rights, "CCR Files Constitutional Challenge to Patriot Act." Aug. 5, 2003, http://www.ccr-ny.org/v2/reports/report.asp?ObjID= FjMAeaTxLu&Content=278

41a. Humanitarian Law Project v. Mukasey, 552 F.3d 916 (9th Cir. 2007), cert. granted, Sept. 30, 2009 (S. Ct. No. 08-1498), oral argument scheduled for Feb. 23, 2010. The parts of the "material support or resources" ban that the Ninth Circuit found unconstitutionally vague are "training," "other specialized knowledge" (a subpart of the "expert advice or assistance" prohibition), and "service." For all of the briefs filed in the Supreme Court, go to http://www.abanet.org/publiced/preview/briefs/feb2010.shtml.

42. Marcia Coyle, "Experts See Hurdles for Suits over Patriot Act: First Two Actions Likely Aren't the Last," National Law Journal News, August 11, 2003.
http://www.nlj.com/news/081103patriot.shtml

43. For an up-to-date list of communities, see the Bill of Rights Defense Committee. http://bordc.org/OtherLocalEfforts.htm

44. Andrew Lightman "Board Favors Anti-Patriot Act Resolution, Town Online, August 13, 2003. http://www.townonline.com/newton/news/local_regional/new_ covnepatriotact08132003.htm

45. National Coalition to Repeal the Patriot Act, http://www.repealnow.com

46. See http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13265&c=206; http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13189&c=206

47. American Library Association, "Resolution on the USA Patriot Act and Related Measures That Infringe on the Rights of Library Users." (Chicago, IL: American Library Association, January 23, 2003). http://www.ala.org/Content/
Navigation Menu/Our_Association/Offices/Intellectual_Freedom3/Statements_
and_Policies/IF_Resolutions/Resolution_on_the_USA_Patriot_Act_and_Related_
Measures_That_Infringe_ on_the_Rights_of_Library_Users.htm; and USA PATRIOT Act Resolutions of State Library Associations. http://www.ala.org/
Content/NavigationMenu/Our_Association/Offices/Intellectual_Freedom3/IF_
Groups_and_Committees/State_IFC_Chairs/State_IFC_in_Action/USA_
Patriot_Act_Resolutions.htm

48.Chairs/State_IFC_in_Action/USA_ American Library Association, Office for Intellectual Freedom, Guidelines for Developing a Library Privacy Policy, Aug. 2003. http://tinyurl.com/j7v5

49. "Reader Revolt against Patriot Act Gains Steam," American Libraries Online, June 9, 2003. http://www.ala.org/al_onlineTemplate.cfm?
Section=American_Libraries&template=/ContentManagement/Content
Display.cfm&ContentID=34177

50. U.S. Senate Select Committee on Intelligence and U.S. House Permanent Select Committee on Intelligence, Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001 Report. S. Rept. No. 107- 351 107th Congress, 2nd Session, H. Rept. No. 107-792, Washington, DC: Government Printing Office, Dec. 2002. http://www.gpoaccess.gov/serialset/creports/911.html

51. Kenneth Paulson, "Too Free?," American Journalism Review, Sept. 2002. http://www.ajr.org/article_printable.asp?id=2621; and Kenneth Paulson, State of the First Amendment 2002, Roslyn, VA: Freedom Forum, First Amendment Center, 2003. http://www.freedomforum.org/publications/first/sofa/2002/SOFA-2002_report.pdf


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