The USA Patriot Act: What Writers Need to Know

Forty-five days after 9/11, President George W. Bush signed into law the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act,” known by its acronym, the USA Patriot Act. Of all the incursions made into civil rights since the terrorists struck, this 342-page law, which passed by overwhelming margins in Congress (98-1 in the Senate; 357-66 in the House), is the broadest. Many of its provisions had been requested for years by federal law enforcement agencies, but Congress consistently rejected them. In the panicked weeks after the attacks, civil rights took a backseat to fear of more attacks. Patriot sailed through without the testimony, interagency review, committee processes, and debate common to almost all other legislation.

Journalists investigating terrorism or other crimes, for example, now may be prime targets of surveillance themselves.

Since Patriot became law, a growing chorus of citizens, municipalities, interest groups on both the left and the right, and even many of the lawmakers who voted for it, is voicing grave concern over the expanded powers it gives the government to spy on Americans and legal aliens. The White House and law enforcement agencies have staunchly defended Patriot, citing (though without giving details) its key role in thwarting terrorist plots and downplaying its effects on citizens’ free-speech and privacy rights.

Who’s right? It’s impossible to explain here every provision of this massive piece of legislation, which amended at least 15 existing laws (and which contains many uncontroversial provisions). But there are provisions that directly affect writers and their interests. It is imperative for writers to be aware of these provisions so that they can draw their own conclusions about whether parts of the act should be weakened, allowed to expire, or strengthened (as the administration proposes).

In a nutshell, the act gives federal law enforcement agencies (for example, the FBI, Justice Department, U.S. Attorneys) and foreign intelligence surveillance agencies (the CIA, NSA, Pentagon, U.S. Citizenship and Immigration Services [USCIS, formerly known as Immigration and Naturalization Service or INS], Secret Service) more tools and greater leeway to spy on citizens (and legal aliens) in national security and criminal investigations. It does so in the following ways (among others):

• Makes it much easier for domestic law enforcement to use tools like roving wiretaps and phone taps
• Lowers the standard needed to convince a court to issue search warrants and subpoenas (probable cause to believe a crime is being committed or planned is no longer needed)
• Greatly expands the scope of third-party records subject to subpoena
• Permits domestic and foreign intelligence agencies to share information gathered about citizens more easily
• Allows individual district courts to issue nationwide search warrants and wiretap orders
• Permits agencies to spy—even to exercise a search warrant without notifying the person being searched
• Expands the type of information subject to surveillance to include e-mail and other online activity
• Forbids citizens subject to surveillance to challenge it in court except after the fact if they are charged with a crime

Before Patriot, most warrants and permissions to wiretap expired after 30 days, unless renewed by the issuing court. Also, the agencies typically had to report the results of their surveillance to that court. These days, warrants and wiretaps can extend to 180 days without court review, and, in many cases, agencies no longer have to report their results.

Foreign intelligence agencies investigating a crime have never needed to get permission from a secret “FISA” (Foreign Intelligence Surveillance Act) court to spy on U.S. citizens. An agency had to tell the court only that it was investigating a citizen in conjunction with a foreign agent or nation. Before Patriot, it did have to show the court that “the purpose” of the spying was to get foreign intelligence information; now they need only show “significant purpose.”

The lowering of so many privacy safeguards might not seem so troubling if it applied only to suspected terrorists or other felons—but it doesn’t. Except in a few situations, the targets of these surveillance methods need not be suspected of terrorism, criminal activity, or spying. The agency doing the surveillance must merely show that information sought might be related to an ongoing national security investigation. Journalists investigating terrorism or other crimes, for example, now may be prime targets of surveillance themselves.

Substantively, the act introduced a new offense, “domestic terrorism,” defined as “involving acts dangerous to human life,” or engaging in violence that damages private property in order to“influence government policy by intimidation or coercion.” This broad definition could encompass the activities of advocacy groups such as Greenpeace and Operation Rescue, should their activities result in injury or property damage. The act also expanded the definition of “terrorist acts” to include offering support—including professional advice and advocacy—to “terrorist groups” designated as such by the secretary of state (publicly or not), and made computer-trespassing crimes subject to much harsher penalties.

Many of the restrictions on surveillance that Patriot eliminated were imposed in the 1970s, after the country learned of the politically motivated spying committed by Hoover’s FBI and the CIA against half a million U.S. citizens. Among the most important of the restrictions eased by Patriot was the so-called “wall” erected between law enforcement and foreign intelligence agencies.

Different agencies exist to investigate different things. The FBI, for example, pursues domestic and international crime, but foreign intelligence agencies may investigate espionage activity even if no crime is suspected. For this reason, the privacy protections imposed on the surveillance methods used by each agency are different. To prevent each agency from committing an end run around the particular restrictions on its behavior, Congress forbade them to share what they’d collected with one another. It required them to get a court’s permission to share any information and strictly limited the information shared to what was relevant to each agency’s particular investigation.

After revelations of the problems the FBI and CIA had had in “connecting the dots” about some of the 9/11 hijackers, Patriot tore down most of this wall in national security investigations. It now allows wiretap and other surveillance information collected in a criminal case to be shared with foreign intelligence agencies if the information constitutes “foreign intelligence information,” and vice versa.