Should the Patriot Act be Extended?
An Analysis of Safety Versus Liberty in the Age of Terrorism
By Rebecca Acree
Williams College
Introduction
The September 11, 2001 attacks on the World
Trade Center in New York City shook the United
States to its core. Terrorism, once a far-removed
concept belonging strictly to less stable nations,
became a very real, very close danger. America,
thought to be invincible, had been attacked on
its own soil. Fear and confusion dominated. The
public needed answers, and they needed them
immediately. Congress was quick to respond, and
did so in the form of the USA Patriot Act. The
Patriot Act was introduced as a thorough response
to the dangers the nation faced. It gave the
government greater means to conduct investigative
operations, thus allowing it to combat terrorism
more efficiently and more effectively. Generally, the
reaction was positive, both publicly and politically,
with supporters lauding the Act’s strong stance
against terrorism. Dissenters, however, expressed
concern over the Act’s infringement of civil liberties
and its expansion of government power. In the time
since its passage, the debate over its relative value has
intensified, with dissent spreading. As its expiration
date nears, the time has come to reevaluate. Should
the Act be retired, as its critics argue, because
the threat it poses to civil liberties outweighs its
effectiveness as an anti-terrorism tool? Or should
it be extended, because it is a necessary part of the
“War on Terror” and is in the best interest of public
safety? This article will examine both sides of the
issue, and will explore the future of the Patriot Act
in America.
Overview
The USA Patriot Act was signed into law
on October 26, 2001, around six weeks after
1
2
the 9/11 attacks. The Act—which stands for
Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and
Obstruct Terrorism—is split into ten sections.
Each of these focuses on a different aspect of the
process of investigating and prosecuting terrorism,
such as the allocation of federal funds (Title I),
surveillance procedures (Title II), border security
(Title IV), and criminal law (Title VIII). Most
controversial, perhaps, is Title V, which entails
the removal of certain obstacles to investigation,
something achieved through the use of National
Security Letters (NSLs). NSLs are orders issued
to businesses and organizations requiring them to
turn over any and all records and data pertaining
to targeted individuals, and are inclusive of a gag
order. No probable cause or other such judicial
permission is required to issue an NSL.1, 2
“As [the Patriot Act’s]
expiration date nears, the time
has come to reevaluate.”
In 2011, President Obama signed the Patriot
Sunsets Extension Act, which extended two specific
practices allowed by Title II of the original Act,
and one by the 2004 Intelligence Reform and
Terrorism Prevention Act. The three practices given
the extension, which lasts until 2015, are found in
Sections 206, 215, and 6001, respectively. Section
206 of the Patriot Act authorizes law enforcement
agencies to use “roving wiretaps,” the provisions
for which do not name the individual and do not
specify any particular method of communication.
That is, the device being wiretapped may be changed
throughout the course of the investigation without
the need to obtain further permission. Section 215
of the Patriot Act permits the seizure of documents
U.S. Justice Department. “The USA Patriot Act: Preserving Life and Liberty.” 2005.
Doyle, Charles. “National Security Letters in Foreign Intelligence Investigations.” Congressional Research Service. 2014.
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Should the Patriot Act be Extended?
and other tangible sources of information related to
a terrorism investigation. While court approval is
required, no probable cause or reasonable suspicion
is necessary. Section 6001 of the Intelligence
Reform and Terrorism Prevention Act allows for
the surveillance of individuals, or “lone wolves,”
suspected of terrorist activities but not tied to any
terrorist organization. Authorization is granted
by secret intelligence courts and is not considered
public information.3
President Obama’s decision to extend these
provisions was made amid much controversy. Now,
as the expiration date draws closer, the debate is
once again intensifying.
“Many of [the Patriot Act’s]
critics believe that it was passed
opportunistically with its creators
capitalizing on the government’s
desire to act quickly.”
Criticism
The controversy surrounding the Patriot Act
begins with its original passage. Many of its critics
believe that it was passed opportunistically, with its
creators capitalizing on the government’s desire to
act quickly. This, they argue, led to an inexplicable
and impermissible disregard for Americans’ rights
to privacy. Successful campaigns were led to prevent
the extension of many particularly intrusive aspects
of the Act, including the use of NSLs. As a result,
in the 2011 extension, President Obama only
renewed three specific sections. Nevertheless, these
sections continue to elicit much criticism.4
Section 206, also known as the “roving wiretap
provision,” allows law enforcement officials
to conduct covert electronic surveillance with
minimal restrictions. Officials are not required
to name the individual being surveyed, and are
3
4
5
6
allowed to use any means necessary, without
having to obtain new permission for changes in
the communication device. Even if the target
changes computers, phones, or email address,
the authorization for surveillance moves with
the individual. So long as it is asserted that the
surveillance is being conducted with the express
purpose of gathering foreign intelligence, a Foreign
Intelligence Surveillance Act, or FISA, order can
be obtained. The ACLU, arguably the chief critic
of the Patriot Act, argues that this is far too much
power with far too few restrictions.5 Governmental
authority to conduct searches is limited by the
Fourth Amendment, which requires warrants and
prohibits unreasonable search and seizure. Section
206 is in violation of these requirements, and
therefore is unconstitutional. The government is
not mandated to demonstrate probable cause in
the traditional manner; it must simply be asserted
that the target is likely a foreign power or an agent
of a foreign power. Requests for FISA orders are
directed through a special, secret intelligence
court, not a federal judge, making judicial scrutiny
difficult. Further, the orders may be withheld
permanently from their targets, making attempts at
suppression virtually impossible. Disclosure of the
orders can be claimed to endanger national security,
which prevents civilians from having any access.
According to James Dempsey from the Center for
Democracy in Technology, in essence Section 206
comprises warrantless searches and seizures.6
Section 215, which authorizes law enforcement
agencies to seize any tangible object as part of an
investigation of terrorism, expands the powers of the
FBI. Section 215 FISA orders are accompanied by
gag orders, meaning that the target of surveillance
may not be made aware of the situation. These
orders may be applied to U.S. citizens as well as
non-citizens. The FBI is also not required to show
any probable cause or reasonable grounds for
searches and seizures, nor in this instance is there
a requirement to prove the possibility of the target
being a foreign power or an agent of a foreign
Liu, Edward C. “Amendments to FISA Extended to 2015.” Congressional Research Service. 2011.
Electronic Privacy Information Center. “History of the Patriot Act.” 2013.
The American Civil Liberties Union. “Reform the Patriot Act: Section 215.” 2012.
Dempsey, James. “Why Sections 209, 210, and 220 Should Be Modified.” The American Bar Association. 2003.
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power. Section 215 is most often applied as it
pertains to library and internet research records.
Opponents argue that it allows the government to
spy on individuals based solely on their exercise of
their First Amendment rights. That is, the FBI can
choose to conduct surveillance on someone simply
because he or she checked out a book on Osama
bin Laden at the library. This constitutes another
violation of the Fourth Amendment requirement
of warrants in search and seizures, and, according
to the ACLU, is an intolerable breach of privacy
that is rewarded with minimal payoff.7
Section 6001, also known as the “lone wolf
provision,” allows the government to obtain secret
FISA orders to against individuals who are suspected
of terrorism but lack ties to any recognized terrorist
organization.8 Previously, it was required that
officials demonstrate reasonable grounds to suspect
the target’s involvement with terrorist groups or in
terrorist activities. Section 6001, however, removes
that condition, and allows individuals wholly
unassociated to be targets of surveillance. Again, this
allows law enforcement agencies to dodge the usual
requirements for acquiring warrants in searches and
seizures. Further, because the process for obtaining
these orders is conducted through secret intelligence
courts, no information on them can be publicly
obtained. It cannot be known, then, how or when
the government is applying the provisions of
Section 6001. This threatens the safety and privacy
of everyday citizens. Because no definitive proof of
terrorist tendencies or ties is needed to obtain an
order, targeted individuals may be subject to unfair
profiling. This is an expansion of the authority of
the government to unprecedented levels.9
Justification
Despite the criticism regarding the
infringement of civil liberties, the Patriot Act still
has its supporters. These supporters argue that the
potential sacrifice of privacy is appropriate when
done in the interest of the safety of the nation.
The “War on Terror” is ongoing, and therefore
the authorization to combat terrorism must be
ongoing. Supporters of the Act continue to fight
for the extension of the three sections past 2015.
“There have been no reported
abuses of this law either as it
applies to terrorism or as it
applies to other crimes, despite
continuous investigation...”
According to its supporters, in all the
controversy regarding Section 206, the “roving
wiretap provision,” opponents of the Act fail to
recognize that the roving wiretaps have been used
by United States law enforcement since 1986. In its
earliest form, of course, targets did not have access
to computers or email, but switching landlines or
payphones produced the same effect. If this law is
applicable to everyday criminals, it should be just
as applicable to terrorists, for after all, terrorism is
a crime. There have been no reported abuses of this
law either as it applies to terrorism or as it applies
to other crimes, despite continuous investigation
by the Department of Justice.10 Further, to require
federal agents to obtain express permission for
each and every switch of communication device —
something that is likely to be extremely frequent
in the modern age—is to prevent them from
doing their job efficiently and effectively. While
the agents are stuck jumping through hoops, the
target is able to get a step ahead. Terrorists switch
identities and devices with such frequency that to
keep up with them is already difficult enough as
it is. Naming them specifically on the order, then,
is oftentimes impossible, not to mention a great
security risk. Thus, bogging down law enforcement
with unnecessary red tape endangers the safety of
the nation and its citizens. Turning the focus of the
FISA order on only the unnamed target both aligns
the law with criminal procedures as well as allows
The American Civil Liberties Union. “Reform the Patriot Act: Section 215.” 2012.
Liu, Edward C. “Amendments to FISA Extended to 2015.” Congressional Research Service. 2011.
9
The American Civil Liberties Union. “Reclaiming Patriotism: A Call to Reconsider the Patriot Act.” 2009.
10
The Heritage Foundation. “After Bin Laden.” 2011.
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Issue III, Volume II
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Should the Patriot Act be Extended?
investigative procedures to advance as technology
does. This, in turn, advances national security.11
The claims of opponents regarding Section 215
being in violation of the Fourth Amendment are
debased by supporters as unfounded and alarmist.
This section authorizes the FBI to obtain materials
from a third party regarding the target’s potential
involvement in terrorist activities. However, this can
only be done if express approval is obtained from a
federal court; without such approval, no steps can
be taken. The FBI must provide some reason to use
the order, for they cannot be handed out without
any explanation. Further, while it is argued that
the privacy of targets is at risk, the Constitution
does not and cannot protect information once it
has been disclosed to a third party. Section 215
specifically applies to the involvement of a third
party. To refer to the oft-cited example of library
records, the library, as a public institution, is not in
any way obligated or even permitted to withhold
information it has been given, that is, records of
what books have been checked out by whom. Such
information is public, and therefore not protected
by Constitutional privacy rights. Further, although
gag orders are put in place, the seizing of any
records may be challenged in court, and the records
are subject to subpoena for viewing by the jury. The
secrecy involved in the process extends only to that
which is needed to protect national security, which
must be the priority.12
“...only with considerable proof
can the FISA order be given, so
the possibility of racial profiling
is minimized.”
Section 6001, the “lone wolf provision,” is
decried as dangerously secretive and prejudicial in
11
12
13
14
nature. However, the standard is not without limits.
The target must be a foreign power or an agent of
a foreign power. There must be probable cause that
the target is engaging or attempting to engage in
terrorist activities, and a specific definition of such
terrorism is provided. Thus, only with considerable
proof can the FISA order be given, so the possibility
of racial profiling is minimized. Further, previous
laws required evidence that the target is somehow
connected with major terrorist organizations before
surveillance can be conducted. The existence of
“lone wolves,” however, makes this an impossible
standard to maintain. Not all terrorists are
connected to an organization, as has been evidenced
by numerous attacks over the past decade, most
notably those by Nidal Hasan at Fort Hood in
2010 and by Dzhokhar and Tamerlan Tsarnaev at
the Boston Marathon in 2013. These two attacks
alone resulted in the deaths of thirteen and the
injuries of hundreds of others. Clearly, lone wolves
are serious threats to national security. Therefore,
the government must be authorized to address this
threat in the most efficient and most effective way,
in order to ensure the safety of its citizens.13, 14
Conclusion
Despite the fact that as a nation, the United
States has been dealing with terrorism for decades,
it has yet to agree upon the best method for
combating it. The Patriot Act is the most definitive
measure taken to date, but its value has been
hotly debated for years, and in all likelihood will
continue to be for the remainder of its use. The
Act is an extremely complicated issue, and both
its critics and supporters offer extremely valid
arguments. It does pose serious threats to the civil
liberties of American citizens, if abused. It gives the
government an unprecedented amount of power
and establishes an unprecedented lack of judicial
scrutiny. This should by no means be taken lightly.
However, far more than personal liberty is at stake.
Lawmakers must consider the safety and wellbeing
of the nation as a whole. The Patriot Act strengthens
Rosenzweig, Paul. “Section 206: Roving Surveillance Authority Under FISA.” The American Bar Association. 2005.
Mac Donald, Heather. “In Defense of the Patriot Act.” The Manhattan Institute for Policy Research. 2003.
Woods, Michael J. “Lone Wolf: Targeting the Loosely-Affiliated Terrorist.” The American Bar Association. 2005.
Marshall, Leslie. “Send the Fort Hood Shooter to Prison and Throw Away the Key.” US News. 2013.
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the ability government to protect the nation from
acts of terrorism. It allows the government to ensure
that the events of 9/11 are never repeated, and to
that end, it has been successful. There have been
numerous attacks over the years, but many more
have been prevented. Still, there is no indication
that the onslaught will cease anytime soon, and
for this reason, despite the risks to civil liberties,
the safety of the United States must be prioritized
above all. Thus, the Patriot Act should be kept in
place, for without security, there can be no liberty.
“Still, there is no indication that the onslaught [of attacks] will cease
anytime soon, and for this reason, despite the risks to civil liberties,
the safety of the United States must be prioritized above all.”
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