Encyclopedia of BusinessEthics and Society

USA PATRIOT Act

Contributors: Robert W. KolbPrint Pub. Date: 2008Online Pub. Date: October 22, 2007Print ISBN: 9781412916523Online ISBN: 9781412956260DOI: 10.4135/9781412956260Print pages: 2149-2152

This PDF has been generated from SAGE knowledge. Please note that the paginationof the online version will vary from the pagination of the print book.

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Professor of FinanceThe USA PATRIOT Act (Uniting and Strengthening America by Providing AppropriateTools Required to Intercept and Obstruct Terrorism Act) of 2001 is an act of federallegislation in the United States. It was signed into law by President George W. Bush onOctober 26, 2001.

The PATRIOT Act governs the authority of the federal government to fight espionageand terrorism and is divided along two areas: domestic law enforcement and foreignintelligence surveillance. The broad nature of the act has also allowed federal agenciesto prosecute money laundering and computer fraud, even in situations that did notdirectly involve terrorism. The act has profound effects on Internet service providers(ISPs), telecommunications providers, banks, financial services companies, andimmigration.

The original version of the act included a sunset provision. Several of the sectionpowers defined in the act were due to expire on December 31, 2005. This date wasextended to March 2006 as lawmakers argued over which sections would be retained.Legislation passed by the U.S. Congress in July 2005 in HR 3199 repealed thisexpiration date for certain provisions. A renewal of the act was passed by Congressand signed by President George W. Bush on March 9, 2006. The renewal makes allbut two provisions of this version of the act permanent. While several of the originalsections were not included in the renewal, the act still retains its broad scope over lawenforcement, financial transactions, and surveillance.

Origins

The USA PATRIOT Act had already been proposed in the Congress before the eventsof September 11, 2001 (9/11). In the following days, President Bush called on the U.S.Congress to provide the federal government with sweeping law enforcement powersto better identify and prosecute terrorists. The executive branch and the congressionalleadership centered its legislative efforts on this bill.

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The act is an extension of the Foreign Intelligence Surveillance Act (FISA) of 1978 andthe Computer Fraud and Abuse Act (CFAA) of 1986. The primary means of extensionwas the inclusion of terrorism. Terrorism itself was defined in the act as an activity thatmeets all three of the following criteria: the intimidation or coercion of the government orcivilian population, the violation of criminal laws, and the endangerment of human life.

Scope of the Act

The act is divided into 10 sections or titles. Each section addresses specific issues,remedies, and agencies. Section 106 of Title I defines the president's powers [p. 2149

↓ ] regarding international financial transactions within the U.S. jurisdiction. This was aresponse to the finding that the alleged 9/11 terrorists had received significant fundingfrom outside the country. As a result of this redefinition, it has become more difficult foranyone to transfer funds across the country's borders. Banks and financial institutionsmust collect, retain, and report more detailed information about each transaction and itsparticipants. These efforts have been criticized by privacy advocates and internationalgroups as a fundamental, and possibly illegal, erosion of the privacy rights of non-U.S.citizens.

Section 104 describes another expansion of governmental authority. The attorneygeneral may request military assistance when weapons of mass destruction (WMDs)are used within U.S. territory or against U.S. facilities. This section weakens theseparation between civilian and military authority in law enforcement, as a means ofimproving communication and coordination between these two institutions. Similartactics were employed during the Civil War, resulting in the Posse Comitatus Act of1878. This measure attempted to ban the use of military forces in a civilian capacity.Section 104 appears to be one of several legislative exceptions to the 1878 act.

Discrimination

Title I of the act also addresses discrimination against ethnic and religious groups. Afterthe 9/11 attacks, some lawmakers and citizens were concerned that law-abiding ArabAmericans, Muslim citizens, and others might be targets in a “rush to judgment.” Section

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102 recognizes this issue and states that the civil rights and safety of all Americancitizens must be maintained.

Racial and religious discrimination are long-standing issues in the United States.During World War II, President Franklin Roosevelt signed the Executive Order 9066that allowed the civilian government to relocate approximately 120,000 individualsof Japanese ancestry to internment camps. More than 60% of these internees wereAmerican citizens. Relatively few internees were of German or Italian descent. Thestated purposes of internment were to protect these individuals and to curb sabotage,in a utilitarian effort to preserve safety by denying the rights of an ethnic minority. Whilethe Supreme Court upheld the executive order in 1944, President Ronald Reagansigned legislation in 1988 that provided a formal apology for the government's actionsand established a system of monetary reparations to survivors.

Section 102 of the act does not specifically address internment. There are more than5 million Arab Americans living in the United States. Internment, or any effort to restrictthe movements of specific groups, would be difficult and expensive, even if these effortsinvolved voluntary or electronic tracking schemes.

Immigration

Title IV of the act represents a reform of national immigration laws, with a specificfocus on the Immigration and Nationality Act (INA) of 1952. Immigration and CustomsEnforcement (ICE), an agency formed in the Homeland Security Act of 2002 from thecombined Immigration and Naturalization Service (INS) and the U.S. Customs Service,was given additional flexibility to staff and monitor the country's border with Canada.Immigrants who were members of an international organization that endorsed terroristacts could be denied entry into the United States. Family members and associatescould also be denied entry. The secretary of state and attorney general were givenbroad powers to investigate and designate any immigrant as a potential threat.

The attorney general was required under Section 416 to establish a computerizedsystem for monitoring foreign students registered in U.S. colleges and universities.Academic administrators at each school are required to enter and update information

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about foreign students with the Student and Exchange Visitor Information System(SEVIS). The federal government can level substantial penalties against universitiesif they fail to participate in SEVIS and the associate Student and Exchange VisitorProgram (SEVP). The U.S. universities have seen a marked decline in internationalstudent enrollment, as the revised student visa policies and procedures, includingmandatory visa interviews and processing fees, served as a disincentive for potentialstudents to consider U.S. schools.

Search and Seizure

FISA provides for the Foreign Intelligence Surveillance Court, which operateswithout public record. FISA also permits the delayed notice of a warrant in specificsituations, which are commonly referred to as “sneak and peek.” Under this doctrine, aproperty owner does not have to be informed prior to search. Probable cause is not arequirement for a FISA investigation.

[p. 2150 ↓ ]

Section 203 of the act allows “foreign intelligence information” to be gathered duringcriminal investigations by domestic law enforcement and then shared with theintelligence community. Section 218 added a single word to the 1978 requirements forlaunching a FISA investigation. Government officials could now show that a “significant,”rather than sole, purpose of a FISA investigation involved the collection of foreignintelligence information.

The act further allowed the director of the FBI to request a person's telephone recordswithout any notification to that individual. The federal government has argued thatthe transactional data for Web surfing consist of a list of the URLs or Web siteaddresses that a person visits. However, server addresses can have meaning in and ofthemselves. Web server addresses are almost always based on domain names, whichare often associated with certain products services, trademarks, or other informationthat another person may use to either correctly or incorrectly identify a Web site withoutvisiting any of its pages.

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Web addresses can also have data embedded within them, through the use of theHTTP GET method. This is a common practice on search engines such as Google andYahoo. Web developers sometimes use the URL to embed information that has beenentered into forms. Web sites that follow this practice include bibliographic databasesand some e-commerce sites.

Section 211 of the 2006 version of the act overrides the privacy provisions of theCable TV Privacy Act of 1984. Subscribers' viewing records are protected, but recordsof telecommunications activity, including cable modem usage, wireless networktransmissions, and telephone calls, are subject to the PATRIOT Act's provisions.

Section 216 of the act allows law enforcement agencies to conduct “roving”surveillance. This provision is one of two sections of the 2006 version of the act that willexpire in 2010.

Money Laundering

Section 311 of the act authorized the U.S. Department of the Treasury to require regularreports of international financial transactions conducted through domestic financialinstitutions. Banks were also required to train employees on specific procedures andresponsibilities for these financial transactions. Thus, a significant burden was placedon financial professionals, who must now assume that any international transactionmust be reported, and may be perceived, as possible evidence of money laundering bythe federal government.

Section 215 of the act gives law enforcement the authority to request business recordsunder FISA. This is the second temporary provision of the 2006 version of the act. It isscheduled to expire in 2010.

Computer Fraud

The act amended the CFAA so that it includes the aiding or harboring of terroristsand perpetrating or assisting attacks on the defense contractors or the government.

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However, the act also extends its authority to situations in which individuals are harmedor killed. Unauthorized access to or transmission of government computer systems ornational security information is prohibited. The unauthorized transmission or possessionof computer passwords also qualifies as offense.

Sections 206 and 217 of the act amended the CFAA so that it applies involvingcomputer fraud in cases where at least $5,000 of damages or lost revenues canbe claimed. The act has been used in cases such as abuse, Web site defacement,spamming, file sharing, piracy, and theft involving ISPs, music and film publishers, andother organizations. Most of these cases were within the bounds of the act, althoughonly a few of the defendants in these cases were implicated in terrorist activities.

An 8-year statute of limitations exists, and Racketeer Influenced and CorruptOrganizations Act (RICO) procedures can be used to confiscate assets from theaccused. This expansion of the federal government's powers allows investigators tomonitor an individual's telecommunications without their knowledge or consent.

State and Local Governments

Since its original enactment in 2001, eight states and almost 400 local governmentspassed resolutions and measures that condemned the act. These measures have littlereal power, but they do suggest that the PATRIOT Act remains a controversial subjectin the United States. Public opinion polls suggest that many voters are poorly informedabout the act's purpose and scope.

Effects on the Internet

The act presents several ethical challenges for companies, employees, and governmentofficials. The intent [p. 2151 ↓ ] of the act was to provide the federal government withenhanced powers to identify and prosecute terrorists.

In practice, the act has become a valuable tool for the prosecution of Internet-based crime. Law enforcement agencies are better able to work with ISPs,

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telecommunications firms, and other companies to respond as criminals change andadapt their practices in “Internet time.” Legislators and the courts may react afterthe fact, but the Internet's pervasive influence over society means that the criminalscan create much greater damage now than they could in the past. Government hasturned telecommunications into a surveillance tool as a means of protecting societyin a utilitarian fashion, where the good of the many outweighs the erosion of personalprivacy and liberty.

At the same time, some Internet users tend to believe that the Internet is an anonymousmarketplace for the exchange of ideas. The act has made this assumption a dangerousone. Telecommunications providers tout the power of their services to rapidly connectusers to each other and to information sources. However, U.S. telecommunicationsproviders have, in most cases, been willing to cooperate with the act's broad mandate,sometimes to the detriment of individual privacy.

In the first decade of the 21st century, mobile telephone carriers have extended theInternet's reach to the mobile handset. It is commonly believed that, at some point in thenext 10 years, more users will access the Internet through a mobile phone handset thanthrough a personal computer.

In the United States, these carriers archive and store text messages, record datatransmissions and telephone calls, and are required by the act to produce thisinformation at the government's demand, and sometimes without the user's knowledge.It has become a trivial pursuit to analyze the pattern of one or more user's mobile phoneusage to determine where they were, when they accessed services, and what theyaccessed. The mobile phone and the personal computer have become, by their verynature as telecommunications devices, instruments of finely detailed surveillance. In theUnited States, the act means that a vast majority of the population is subject to greatergovernment scrutiny now than at any point in the history of the Republic.

William A. Sodeman

10.4135/9781412956260.n830

See also

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Further Readings

Abele, R. P. (2004). A user's guide to the USA PATRIOT Act and beyond . Lanham,MD: University Press of America.

American Civil Liberties Union . (2004). Surveillance under the USA Patriot Act .Retrieved from http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=12263&c=206

Cole, D., & Dempsey, J. X. (2002). Terrorism and the constitution: Sacrificing civilliberties in the name of national security (3rd ed.) . New York: New Press.

Electronic Frontier Foundation . (2003). EFF analysis of the provisions of theUSA PATRIOT act . Retrieved from http://www.eff.org/Privacy/Surveillance/Terrorism/20011031_eff_usa_patriot_analysis.php

Dern, D. P. (2003). Privacy concerns . IEEE Security and Privacy vol. 1 pp. 11–13.Retrieved from http://doi.ieeecomputersociety.org/10.1109/MSECP.2003.1193206http://dx.doi.org/10.1109/MSECP.2003.1193206

Larson, R. K. Herz, P. J. (2003). Accountants, corruption, and money laundering .CPA Journal vol. 73 pp. 34–37. Retrieved from http://search.epnet.com/login.aspx?direct=true&db=buh&an=10089921

Podesta, J. (2002). USA Patriot Act: The good, the bad, and the sunset . Retrieved fromhttp://www.abanet.org/irr/hr/winter02/podesta.html

Skibell, R. (2003). Cybercrimes and misdemeanors: A reevaluation of theComputer Fraud and Abuse act . Berkeley Technology Law Journal vol. 18 pp.909–945 [Electronic version]. Retrieved from http://search.epnet.com/login.aspx?direct=true&db=buh&an=11348783

Zdanowicz, J. S. (2004). Detecting money laundering and terrorist financing viadata mining . Communications of the ACM vol. 47 pp. 53–55. Retrieved from http://doi.acm.org/10.1145/986213.986239 http://dx.doi.org/10.1145/986213.986239