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Background

The Patriot Act made a number of changes to U.S. law. Key acts that were changed, along with a number of others, were the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1968 (ECPA), the Money Laundering Control Act of 1986 and Bank Secrecy Act (BSA), as well as the Immigration and Nationality Act.

Title II of the Patriot Act made a number of significant changes to the laws relating to foreign intelligence surveillance, of which the main two Acts that were affected were FISA and the ECPA. After the Watergate scandal, the Church Committee discovered and criticised abuses of domestic spying by the NSA, FBI and CIA. There was widespread congressional and public outcry, Congress passed FISA in 1978, which governs the way in which U.S. intelligence agencies may conduct wiretaps and the interception of communications in order to gather foreign intelligence. The Act established the Foreign Intelligence Surveillance Court (FISC) and a FISC Court of Review with which to administer applications for access to business records, wiretaps, microphone "bugging", physical searches and the use of pen registers and trap and trace devices. The Act does not apply to U.S. citizens, but is limited to dealings with foreign powers and citizens.

The ECPA was an amendment to title III of the Omnibus Crime Control and Safe Streets Act of 1968, which is sometimes known as the "Wiretap statute". The Wiretap statute was mainly the result of two Supreme Court cases — Katz v. United States and Berger v. New York — and from criticism by the Church Commission of the actions of COINTELPRO (Counter Intelligence Program). The Supreme Court found in both Katz v. U.S. and Berger v. New York that the Fourth Amendment search and seizure protections prohibited warrantless wiretaps. COINTELPRO was a program of the FBI aimed at investigating and disrupting dissident political organizations within the United States, and the operations of 1956-1971 were broadly targeted against organizations that were (at the time) considered to have politically radical elements, ranging from those whose stated goal was the violent overthrow of the U.S. government (such as the Weathermen); non-violent civil rights groups such as Martin Luther King Jr.'s Southern Christian Leadership Conference; and violent groups like the Ku Klux Klan and the American Nazi Party. The Church Committee found that most of the surveillance was illegal. Consequently Title III of the Omnibus Crime Control and Safe Streets Act, though noting that wiretaps and interception of communications are a vital part of the law enforcement, found that wiretapping had been undertaken without legal sanction and were being used to overhear private conversations without consent. These conversations were then being used as evidence in court proceedings. In order to protect the integrity of the courts while also ensuring the privacy of citizens was not violated the Act provided a legal framework within which wiretaps and interceptions of communications could be used. The Act requires a court order authorizing the use of such measures against U.S. citizens, with penalties for those who do not get such authorization. The notable exception to these orders is in section 2511(3), which makes an exception to the restrictions of wiretaps in cases where the President must take measures to protect the U.S. from actual or potential hostile actions from a foreign power. However, when Title III was established telecommunications was in its infancy. Since that time, many advances were made. The ECPA extended Title III to protect wire, oral and electronic communications while in transit, as well as protecting stored electronic of communications. It also extends the prohibition of the use of pen register and/or trap and trace devices to record dialling, routing, addressing, and signalling information used in the process of transmitting wire or electronic communications without a search warrant.

The Patriot Act has a whole title devoted to prevention of money laundering, and made changes to the Money Laundering Control Act (MLCA). This Act was an amendment to the Bank Secrecy Act (BSA), which was passed by Congress in 1970 and is designed to fight drug trafficking, money laundering and other financial crimes. The BSA requires financial institutions to keep records of cash purchases of negotiable instruments, file reports of cash transactions exceeding a daily aggregate amount of $US10,000, and to report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. The MLCA, passed in 1986, further enhanced the BSA by making it a crime to structure transactions in such a way as to avoid BSA reporting requirements.

Immigration law was also tightened under the Patriot Act. The Immigration and Nationality Act of 1952 (INA), also known as the McCarran-Walter Act, was passed by Congress in 1952 and was designed to restrict immigration into the U.S. It allowed the government to deport immigrants or naturalized citizens engaged in subversive activities and also allowed the barring of suspected subversives from entering the country. The Act is codified under Title 8 of the United States Code, which primarily governs immigration and citizenship in the United States. Prior to the INA, a variety of statutes governed immigration law but were not organized within one body of text. The Act was later modified by the Immigration and Nationality Act of 1965, and then by the Immigration Reform and Control Act of 1986. Since the Patriot Act, Title 8 has been modified even further by various Acts, including the Real ID Act of 2005.

September 11, 2001 terrorist attacks

On September 11, 2001, terrorists attacked New York City and caused the destruction of the World Trade Centre. In response President George W. Bush declared a War on Terror. Soon thereafter, Senators from both sides of politics started working on legislation that would give law enforcement greater powers to prevent and investigate terrorism in the United States. These were watched carefully by several groups, include the Electronic Frontiers Foundation (EFF), the UCLA and the Centre for Democracy and Technology (CDT).

According to The Washington Post, Viet D. Dinh, Assistant Attorney General of the United States started work on amendments to the law that would increase the authority of Federal Agencies. The Post reported that Dinh understand that "he charge was very, very clear: 'all that is necessary for law enforcement, within the bounds of the Constitution, to discharge the obligation to fight this war against terror'". Over the next few days, Dinh and others worked through a number of issues that had law enforcement agencies had been unhappy for some time. Meanwhile, James Dempsey, of the CDT, was trying to contact Senators in order to speak to them about their concerns that civil liberties might be trampled in the rush to push through legislation. According to Dempsey, this was not easy. He said that if it was hard enough to get their attention, but " you some members of the House and Senate were, 'Don't bother me with the details.'"

The first bill to be introduced was on September 13 by Orin Hatch, in the form of Senate Amendment 1562 that modified an appropriations bill for the Departments of Commerce, Justice, and State, the Judiciary, and related agencies. This had been drafted after Hatch consulted with Senators Dianne Feinstein, Jon Kyl and Chuck Schumer.

Morton Halperin, a former head of the Washington office of the ACLU had got wind of the bill before it was proposed in the Senate and on September 12 sent an email to a number of representatives of civil liberty organisations, including James Dempsey and Marc Rotenberg of the EFF. He wrote that:

"There can be no doubt that we will hear calls in the next few days for congress to enact sweeping legislation to deal with terrorism. This will include not only the secrecy provision, but also broad authority to conduct electronic and other surveillance and to investigate political groups... We should not wait."

The amendment, entitled "Combatting Terrorism Act of 2001" covered a number of areas that would later be dealt with in the Patriot Act. A report on the readiness of the National Guard to preemptively disrupt domestic acts of terrorism that used weapons of mass destruction was ordered. It also called for long-term research and development into terrorist attack as well as a review of the authority of Federal agencies to address terrorist acts. The amendment would have allowed the CIA to recruit terrorist informant and allow law enforcement agencies to disclose foreign intelligence that was discovered through wiretaps and other interception methods. It proposed a Sense of Congress that not enough was being done to impeded and investigate terrorist fundraising, and sought to increase measures to prevent the laundering of the proceeds of terrorism. During the debate, Senator Patrick Leahy urged restraint, asked for more precise figures on how much professional indemnity would cost and expressed concern at the proposed changes to Wiretap statute. Leahy was particularly concerned that the amendment was being rushed through the Sentate, and stated that,

"I we are going to change all these things, if we are going to direct the Director of the CIA and, in effect, direct the President to change the rules of the CIA, something the President could have them do just like that, if the President really wants to — if we are going to do all that here, with no hearing, what does this do to help the men and women who were injured or killed in the pentagon — and their families? What does this do to help the men and women in New York and their families and those children who were orphans in an instant, a horrible instant? Hundreds, perhaps thousands, of children became orphans instantaneously. What does that do for them?"

The EFF wrote that they found that the " changes are... either unnecessary or overreaching."

References

1. ^ O'Harrow Jr., Robert (October 27th), "Six Weeks in Autumn", The Washington Post, pp. W06 {{citation}}: Check date values in: |date= and |year= / |date= mismatch (help)
2. ^ Senator Hatch said that "I have been working with my colleagues, Senators FEINSTEIN, KYL, and SCHUMER, on a package of reforms that can aid investigations.". Senate Amendment 1562 debate
3. Centre for Democracy and Technology. United States Congress, Senate Amendment 1562, September 13, 2001.
4. Electronic Frontiers Foundation, "EFF Analysis of SA 1562, Subtitle B", retrieved 18th June, 2007.