An ongoing debate regarding the balance between actions to protect the United States from terrorist attacks and infringement on civil liberties.

Following the terrorist attacks of September 11, 2001, the United States was united in wondering how such an attack could have occurred and wanting to ensure that it never happened again. While there were already existing laws to investigate and prosecute terrorists, Congress chose to give law enforcement new tools to help in the war against terror. Increasing the scope and power of surveillance and investigation tools required concessions on the part of civil liberties. The complexity and tensions in determining just where these borders between national security and the right to privacy should be are well illustrated in the discussions surrounding the USA PATRIOT Act, 115 Stat, 272 (2001).

The USA PATRIOT Act became law on October 26, 2001, six weeks after the September 11 terrorist attacks. Its title is an acronym that stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” (Pub. L. 107–56). Congress moved quickly, and the bill became law without hearings or markup by a congressional committee. The House approved the final bill, which was sponsored by Representative Jim Sensenbrenner (R-WI), in a single day. The Senate followed the next day, and President George W. Bush signed it into law.

The PATRIOT Act was considered a wish list of changes presented by Attorney General John Ashcroft that expanded the ability to detect and prosecute terrorism and other crimes. It amended several existing federal statutes, affecting laws on several issues, including criminal procedure, computer fraud, foreign intelligence, wiretapping, and immigration. Because the PATRIOT Act challenged so many existing laws, it is an extremely complex task to understand its breadth and depth.

In 2001 opponents of the PATRIOT Act were all Democrats, and only one, Wisconsin Senator Russ Feingold, actually voted no. Reluctance to support the law was politically problematic because nobody wanted answer claims that he or she were not helping to prevent another September 11 attack. At the same time, many civil liberties groups were critical of aspects of the PATRIOT Act and expressed concern that law enforcement would be able to invade the privacy of American citizens unnecessarily and without proper judicial oversight.

Shifting opinions

While there was almost complete unanimity when Congress voted for the PATRIOT Act, there has always been a split of opinion on its provisions. Law enforcement, elected officials, privacy groups, and citizens all have expressed evolving opinions on where the balance between national security and personal privacy lies. The Pew Research Center has conducted extensive polling over time, and its findings illustrate the evolution of public opinion.

In 2001, shortly after the September 11 attacks, when asked if it was “necessary to give up civil liberties to curb terrorism,” 55 percent agreed and 35 percent said it was not necessary. By 2004, just three years later, the balance had flipped, with 56 percent saying that giving up civil liberties was not necessary to stop terrorists, and 38 percent saying that it was still necessary. In 2007 opinion was about even, with 50 percent saying that it was not necessary and 43 percent saying that it was. In 2009, the largest disparity was seen, with 65 percent saying that it was not necessary to only 27 percent saying that it was. In 2011, 54 percent said that it was not necessary, with 40 percent saying it was. What is notable about these results is that every query has a significant minority and illustrates there is by no means a consensus on the issue.

There has not been another major terrorist attack on American soil since September 11, but a variety of other events have spurred the public into considering the balance between national security and privacy. The revelations caused by National Security Agency (NSA) contractor Edward Snowden's leaked documents; repeated breaches of security at major retailers and financial institutions, including the Internal Revenue Service (IRS); and lawsuits contesting many PATRIOT Act provisions have brought the issue of privacy, especially of digital records, into the forefront.

The Pew Research Center and the Washington Post, however, administered a national survey in June 2013, shortly after Snowden's leaks on NSA bulk collection of American phone records were published. The survey indicated that 62 percent said that it was more important for the government to investigate terrorist threats, even if it intruded on personal privacy. Only 34 percent said that it was more important for the government not to intrude on privacy, even if that limited its ability to investigate terrorist threats. The numbers in 2013 remained constant from polls taken in 2006 and 2010.

Privacy groups

Several groups with special expertise have joined in the criticism of some PATRIOT Act provisions. Groups such as the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) continue to fight against provisions of the act by lobbying Congress, partnering with congressional representatives, trying to educate the public, as well as defending those who were adversely affected by PATRIOT Act.

The ACLU calls itself “the nation's largest public interest law firm,” and their mission is to “defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” When initially founded in 1920, it focused on freedom of speech, but it grew to address a wide variety of civil liberties issues. It provides legal assistance in cases where it considers civil liberties to be at risk, offering direct legal representation or amicus curiae briefs.

The EFF describes itself as “protecting freedom where law and technology collide.” It was founded in July 1990 by Mitch Kapor, former president of Lotus Development Corporation; John Perry Barlow, Wyoming cattle rancher and lyricist for the Grateful Dead; and John Gilmore, an early employee of Sun Microsystems. The group believed that technology evolves so quickly that it is difficult for the government, civil liberties groups, and the public in general to understand some of the privacy and legal issues involved. Like the ACLU, it provides legal defense for individuals and technologies, both in the form of direct representation and amicus curiae briefs.

While the ACLU and EFF provide legal assistance for privacy issues, another group that spoke out against PATRIOT Act provisions was the American Library Association (ALA). ALA issued a resolution on the USA PATRIOT Act opposing “any use of governmental power to suppress the free and open exchange of knowledge and information or to intimidate individuals exercising free inquiry … ALA considers that sections of the USA PATRIOT ACT are a present danger to the constitutional rights and privacy rights of library users.” The ALA advised libraries to retain records only as long as legally required to limit the amount of information the Federal Bureau of Investigation (FBI) might be able to access.

The FBI and other law enforcement agents utilizing the tools provided by the PATRIOT Act are often frustrated by the efforts of these groups. The New York Times published an email from a frustrated FBI agent that was obtained through a Freedom of Information Act (FOIA) request. An internal message dated October 2003, it stated in part, “While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us.”

Legislative challenges

In 2001 only a single senator voted against the PATRIOT Act, but in the years that followed, many congressional representatives began to express concern about provisions in the act, especially those dealing with surveillance. The privacy groups that had objected to parts of the PATRIOT Act when it was initially passed in 2001 soon found allies in some of these congressional representatives. Several bills were proposed to amend the act. While none of them were passed, they illustrate some of the concerns shared by civil liberties groups, congressional representatives, and citizens. Some of these acts included the Protecting the Rights of Individuals Act of 2003 (S1552), the Benjamin Franklin True Patriot Act of 2003 (H.R. 3171), and the Security and Freedom Ensured Act of 2005 (H.R. 1526).

Many of these acts were presented by coalitions of civil rights groups and congressional representatives. For instance, with the Benjamin Franklin True Patriot Act, the ACLU and Representatives Dennis Kucinich (D-OH) and Ron Paul (R-TX) joined forces. The Benjamin Franklin True Patriot Act sought to repeal more than ten sections of the PATRIOT Act, including those authorizing sneak-and-peek searches; surveillance of Internet activities without probable cause; and warrantless searches of library, medical, and financial records. Its name was a reference to Benjamin Franklin's aphorism, “Those who would give up Essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Sunset struggles

The PATRIOT Act had several provisions that sunset, or expire, unless Congress renewed or replaced them. The initial sunsets were set to expire on December 15, 2005. As this deadline drew near, much had changed. There had been no major terrorist attacks within the United States since September 11, 2001, and Congress and the American public continued to consider whether the appropriate balance had been stuck between law enforcement surveillance authority and civil liberties. In these renewals, parts of the act that had been challenged or overturned by the courts were often rewritten. Support for the act, which was almost unanimous in 2001, gave way to filibusters and negotiations. The dialogue between support for antiterrorism efforts and the protection of privacy rights continued during the debate, amendment, and voting for these various reauthorization acts.

More information about how the September 11 attacks were perpetrated was also available by this time. The 9/11 Commission report was released on July 22, 2004. The 570-page report ultimately concluded that it was a “failure of imagination,” or an inability to assemble the intelligence it did have, that prevented law enforcement from predicting the attacks.

In 2005, the first renewal came up in the form of the USA PATRIOT Improvement and Reauthorization Act of 2005 (120 Stat. 192). The act sought to make permanent fourteen of the sixteen expiring PATRIOT Act sections and create a new 2009 sunset for Sections 206 and 215. It also looked to amend various aspects of the PATRIOT Act, such as providing for greater congressional and judicial oversight of Section 215 orders, Section 206 roving wiretaps, and national security letters. It required high-level approval for Section 215 requests for library, bookstore, firearm sale, medical, tax return, and educational records, and enhanced procedural protections and oversight concerning delayed-notice, or sneak-and-peek, search warrants authorized by Section 213. While the act was ultimately passed, it was not without significant discussion and negotiation. Subsequent renewals and revisions would also reflect the variety of viewpoints, with law enforcement, privacy groups, and others participating in the process.

The most recent renewal was in the form of the USA FREEDOM Act (Public Law No. 114–23), passed in June 2015. It restored several provisions of the PATRIOT Act (they had expired the day before). It also limited mass surveillance under Section 215 of the PATRIOT Act. According to the EFF, it was the first time since 1978 that Congress voted to constrain intelligence authorities.

The bill was introduced to Congress in 2013, following the publication of several documents leaked by Edward Snowden on NSA bulk collection of American citizen's telephone data. In 2015 many Republicans, particularly libertarian-minded Sen. Rand Paul of Kentucky, joined liberal Democrats in demanding changes to the law. Rep. Jim Sensenbrenner, who sponsored the PATRIOT Act bill in 2001, advocated passage of the FREEDOM Act to “reform the government's surveillance authorities.” He pointed out that the act is the product of a “robust public debate and intense bipartisan negotiations dedicated to finding a way to protect our Constitutional rights without compromising national security.”

Sections of the PATRIOT Act

Three sections of the PATRIOT Act receive much attention from both privacy rights groups and the intelligence and law enforcement groups responsible for national security. The issues involved with each illustrate the challenges of balancing counterterrorism efforts with privacy concerns. The interpretation of various statutes, legal challenges, and the need for secrecy in certain circumstances create a complex, organic environment in which to try to understand all the elements involved in finding an appropriate balance.

Section 213—Delayed-Notice Search Warrants: Section 213 allows for an exception to Fourth Amendment privacy protections, permitting federal law enforcement agents to delay giving notice when they conduct searches. This is sometimes referred to as a sneak-and-peek warrant. Agents may enter a home or office with a search warrant, conduct their search when the owner is not there, and inform the owner of the search only after it is completed. This provision did not have a sunset date and was to be a permanent change in the law.

The Fourth Amendment to the U.S. Constitution provides protection against unreasonable searches and seizures. It requires law enforcement to obtain a warrant and then give notice to the person whose property will be searched before the search may be conducted. All searches and seizures must be reasonable, and all warrants must be based on probable cause. In addition, warrants must be specific about the place to be searched and the items seized. This requirement of notice allows for the assertion of Fourth Amendment rights because it provides opportunity to discover problems with the warrant, such as an incorrect address. It also allows for notice regarding the limits of the warrant. For instance, a warrant to search for a stolen car would not give permission to search dresser drawers.

Perhaps the most important reason for requiring a warrant prior to a search is to ensure that a neutral third party, such as a judge, reviews the warrant to ensure its reasonableness. A covert search warrant removes this third party from the process, which provides law enforcement with greater latitude as far as defining what may be searched.

Delayed-notice search warrants existed prior to the PATRIOT Act. The U.S. Supreme Court has ruled that, while generally police are required by the Fourth Amendment to “knock and announce” their entry prior to a search, there are exceptions. In both Wilson v. Arkansas, 514 U.S. 927 (1995), and Richards v. Wisconsin, 520 U.S. 385 (1997), the Court said that Fourth Amendment requirements could be circumvented in situations where evidence was under threat of destruction or there were concerns for officer safety. There is debate about whether Section 213 really did anything besides create a legislative equivalent of extant case law. In recognition of this debate and others surrounding the PATRIOT Act, the American Bar Association created a blog prior to the 2005 PATRIOT Act renewal deadline where lawyers discussed these varying viewpoints.

There has been an increase in the use of these types of warrants since Section 213 was passed. According to the ACLU, from 2006 to 2009, sneak-and-peek warrants were used 1,755 times, with fifteen of those cases involving terrorism. The rest were in cases involving fraud or drugs. In 2010, 3,970 sneak-and-peek warrants were issued, with 76 percent drug-related, 24 percent other, and less than 1 percent terror-related. Both the U.S. Supreme Court cases that allowed for delayed-notice warrants dealt with drug arrests, however, where evidence could have been destroyed if notice had been given in advance. It is unclear whether the increase in the incidence of delayed-notice warrants is due to Section 213, a rise in drug cases, or other factors.

Section 505—National Security Letters: A national security letter (NSL) is a legal demand for documents that the FBI can issue by itself, without a court order. They are also known as administrative subpoenas and date back to 1978 with the Right to Financial Privacy Act (RFPA), which was part of the Financial Institutions Regulatory and Interest Rate Control Act of 1978 (92 Stat. 3642). This act gave the FBI the power to issue NSLs to obtain financial records in terrorism and espionage investigations, and compliance was optional. In 1986, RFPA was amended to require compliance with the information request, but it still held no penalty for refusing to comply with an NSL.

Though NSLs existed before the PATRIOT Act, a provision of the act enhanced their power. The FBI could demand a variety of records, such as phone records, bank account information, or information from Internet service providers on Internet use. In the PATRIOT Act of 2001, there was also a gag-order provision, and the recipient was prohibited from revealing the receipt or contents of the order to anyone, even an attorney. Violation of the gag order could be punishable by up to five years in prison.

The USA PATRIOT Improvement and Reauthorization Act of 2005, passed in March 2006 after much debate, allowed for some judicial review of an NSL. Other amendments allowed a recipient of an NSL to talk with an attorney about the request, and law enforcement had to utilize the court system to enforce compliance with the request.

According to the Inspector General's 2007 report on NSLs, 8,500 NSLs were issued in 2000, prior to the PATRIOT Act. Between 2003 and 2005, about 143,074 were issued. EFF estimates that over 300,000 NSLs have been issued since 2001.

There have been several court challenges to NSLs and their accompanying gag orders. In the first legal challenge to an NSL, the ACLU represented Nick Merrill. The case was Doe v. Ashcroft, which was subsequently changed to Doe v. Holder (S.D.N.Y 04 Civ. 2614). Merrill owned a small Internet service provider and received an NSL in 2004. The FBI eventually withdrew its NSL request; however, Merrill continued to fight the gag order. In 2010 Merrill was allowed to reveal his identity but not the contents of the request. In September 2015, eleven years after the initial NSL, a federal district court judge in New York fully lifted the gag order. The court order goes into effect in December 2015 to allow the government time to appeal if it chooses to do so.

In 2005 the FBI used an NSL to request patron records from the Library Connection, a consortium of twenty-six Connecticut libraries. The libraries and the ACLU filed a lawsuit that became known as Doe v. Gonzales, 546 U.S. 1301. At the same time, Congress was debating the first reauthorization of the PATRIOT Act. The ACLU sought an emergency court order to lift the gag order so librarians could tell Congress that the FBI had used an NSL to demand library records. The gag order was ruled unconstitutional by a district court judge in September 2005. That same month, the New York Times reported that Library Connection was the “Doe” in the case. In April 2006, six weeks after reauthorization of the PATRIOT Act was passed, the government dropped its legal battle to keep the gag order and withdrew its demand for records.

Section 215—Access to Business Records (“Libraries Provision”): Section 215 revised the authority under the Foreign Intelligence Surveillance Act (FISA) for seizure of business records. Previously, under FISA, the FBI could apply to the Foreign Intelligence Surveillance Court (FISC) for an order to seize business records of hotels, car rental agencies and storage rental facilities. Section 215 eliminated any restriction on the type of business, so records from any business could be seized. It also expanded the scope from “business records” to “any tangible things (including books, records, papers, documents, and other items).” There was also a gag-order provision, so the recipient of the order could not tell anyone about the content of the request or even that one was received. Section 215 also made it easier to obtain an order because judicial review is limited to whether “the application meets the requirements.”

In 2011, the Washington Post reported that the FBI was changing the types of information requests it issued. While they previously used NSLs to retrieve information on emails and Internet surfing, many Internet service providers were limiting the information they provided to names, addresses, length of service, and phone bill records. FBI officials said that, “beginning in late 2009, certain electronic communications service providers no longer honored” requests for more detailed information. The FBI turned to these Section 215 business record requests to try to obtain more detailed information. In 2010 it made ninety-six requests, compared with the twenty-one issued in 2009.

Section 215 gained additional notoriety in 2013 when NSA contractor Edward Snowden leaked classified documents, which indicated that FISC was interpreting Section 215 in a manner that authorized the NSA's bulk collection of American citizens' phone records. In January 2014, the Privacy and Civil Liberties Oversight Board, an independent panel appointed by the White House, issued a report indicating that bulk surveillance had not prevented any terrorist attacks in the United States. It recommended discontinuation of bulk collection of American phone metadata.

Shortly after Snowden's leaked documents were published, the ACLU filed a lawsuit challenging the program's legality under the First and Fourth Amendments. In May 2015 the Court of Appeals for the Second Circuit ruled that the NSA program violated Section 215 of the Patriot Act. In June 2015 Congress passed the USA Freedom Act, a reauthorization of the PATRIOT Act that amended Section 215 to prohibit the bulk collection of American citizens' phone records.

The discussion surrounding the various elements of the PATRIOT Act illustrates the continuing concern about how to protect the United States from terrorist attacks and to keep safe the ideals and freedoms that the Constitution provides. There has never been a consensus on exactly how to accomplish both goals. While there was little discussion with the initial passage of the PATRIOT Act, there is much within the courts, Congress, and beyond that has contributed to the conversation since the act went into effect.

Further Reading

See also: American Civil Liberties Union (ACLU); Electronic Frontier Foundation (EFF); Electronic surveillance; Fourth Amendment to the U.S. Constitution; Freedom of Information Act (FOIA); Metadata; National Security Agency (NSA); Privacy and Civil Liberties Oversight Board (PCLOP); Search warrants; September 11; Snowden, Edward Joseph; Subpoenas; USA Freedom Act; USA PATRIOT Act