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Patriot Act

Patriot Act

The Patriot Act is legislation passed in 2001 to improve the abilities of U.S. The act’s official title is, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” or USA-PATRIOT. Though the Patriot Act was modified in 2015 to help ensure the Constitutional rights of ordinary Americans, some provisions of the law remain controversial.

What Is the Patriot Act?

The Patriot Act is a more than 300-page document passed by the U.S. Congress with bipartisan support and signed into law by President George W. Bush on October 26, 2001, just weeks after the September 11 terrorist attacks against the United States.

Prior to the 9/11 attacks, Congress had mainly focused on legislation to prevent international terrorism. But after the April 1995 Oklahoma City bombing in which American citizens blew up a federal building, domestic terrorism gained more attention.

On April 24, 1996, President Bill Clinton signed the “Antiterrorism and Effective Death Penalty Act of 1996,” to make it easier for law enforcement to identify and prosecute domestic and international terrorists.

The law, however, didn’t go far enough for President Clinton. He’d asked Congress to give law enforcement expanded wiretap authority and increased access to personal records in terrorism cases, among other things. Congress refused, mainly because many felt loosening surveillance and records rules was unconstitutional.

All bets were off, however, after 9/11, the deadliest terrorist attack on American soil. Faced with millions of fearful voters, Congress approached U.S. Attorney General John Ashcroft’s post-9/11 recommendations with a different eye and overwhelmingly passed the Patriot Act.

Details of the Patriot Act

According to the Department of Justice, the Patriot Act simply expanded the application of tools already being used against drug dealers and organized crime. The act aimed to improve homeland security by:

  • allowing law enforcement to use surveillance and wiretapping to investigate terror-related crimes
  • allowing federal agents to request court permission to use roving wiretaps to track a specific terrorist suspect
  • allowing delayed notification search warrants to prevent a terrorist from learning they are a suspect
  • allowing federal agents to seek federal court permission to obtain bank records and business records to aid in national security terror investigations and prevent money laundering for terrorism financing
  • improving information and intelligence sharing between government agencies
  • providing tougher penalties for convicted terrorists and those who harbor them
  • allowing search warrants to be obtained in any district where terror-related activity occurs, no matter where the warrant is executed
  • ending the statute of limitations for certain terror-related crimes
  • making it harder for aliens involved in terrorist activities to enter the United States
  • providing aid to terrorism victims and public safety officers involved in investigating or preventing terrorism or responding to terrorist attacks

Many of the Patriot Act’s requirements were slated to expire in 2005. Whether to renew the act was passionately argued in the U.S. House of Representatives and the Senate.

Despite continued civil liberties and privacy concerns, President Bush signed the USA Patriot and Terrorism Reauthorization Act on March 9, 2006.

Did the Patriot Act Prevent Terrorism?

Depending on whom you ask or what you read, the Patriot Act may or may not have prevented terrorism.

According to a 2015 Washington Post article, the Justice Department admitted, “FBI agents can’t point to any major terrorism cases they’ve cracked thanks to the key snooping powers in the Patriot Act.”

But a 2012 report from the conservative Heritage Foundation states 50 terrorist attacks have been thwarted since 9/11, with 47 being the direct result of the work of law enforcement and intelligence agencies. They claim the Patriot Act is essential to helping law enforcement identify leads and prevent attacks.

In 2004 testimony before the United States Senate Committee on the Judiciary, FBI Director Robert Mueller said, “the Patriot Act has proved extraordinarily beneficial in the war on terrorism and has changed the way the FBI does business. Many of our counterterrorism successes, in fact, are the direct results of provisions included in the Act…”

He also stated that without the provisions in the act, “the FBI could be forced back into pre-September 11 practices, attempting to fight the war on terrorism with one hand tied behind our backs.”

Patriot Act and Privacy Debate

Despite the supposed noble intentions behind the Patriot Act, the law is still hotly debated. Civil rights groups have claimed it violates American citizens’ Constitutional rights and allows the government to spy on them without due process, search their homes without consent and increase the risk of ordinary citizens being accused of crimes without just cause.

The federal government asserts the Patriot Act has safeguards to protect the rights of American citizens. Still, some parts of the law were found illegal by the courts. For instance, in 2015 the United States of Appeals for the Second Circuit found Section 215 of the Patriot Act could not be used to validate the bulk collection of Americans’ phone records.

USA Freedom Act

To help prevent the Patriot Act from infringing on Americans’ civil liberties, President Barack Obama signed the USA Freedom Act into law on June 2, 2015.

The act ended the bulk collection of all records under Section 215 of the Patriot Act and allowed challenges to national security letter gag orders. It also required better transparency and more information sharing between the United States Foreign Intelligence Surveillance Court and the American people.

Some ways the USA Freedom Act is meant to strengthen national security are:

  • allows the government to track suspected foreign terrorists for 72 hours after they enter the United States
  • increases required maximum penalties for anyone providing support to specific foreign terrorist organizations
  • allows limited use of bulk data collection under Section 215 in an emergency

Despite the act’s efforts to protect civil liberties, its critics believe it doesn’t go far enough. The benefits of the Patriot Act and the USA Freedom Act to national security will undoubtedly continue to be weighed against the potential intrusion on Americans’ privacy and their civil rights.

Sources

Bush Signs Patriot Act Renewal. CBS News.

FBI Admits No Major Cases Cracked with Patriot Act Snooping Powers. Washington Post.

Fifty Terror Attacks Foiled Since 9/11: The Homegrown Threat and the Long War on Terrorism. The Heritage Foundation.

H.R.3162 – Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. Congress.gov.

N.S.A. Collection of Bulk Call Data is Ruled Illegal. The New York Times.

Surveillance Under the Patriot Act. ACLU.

The USA Patriot Act: Preserving Life and Liberty. Department of Justice Website.

USA Freedom Act. House of Representatives Judiciary Committee.

William J. Clinton, XLII President of the United States: 1993-2001, Statement on Signing the Antiterrorism and Effective Death Penalty Act of 1996. The American Presidency Project.


The Patriot Act and your privacy

On May 14, the Senate reauthorized the USA Freedom Act, which extends the expansive domestic surveillance powers contained in the Patriot Act.

The original Freedom Act had expired in March. Now that it has been reauthorized, it grants the FBI (and other law enforcement agencies) broad warrantless access to sensitive personal information, including Internet browsing and search history, for national security investigations.

This law restarts a massive domestic surveillance program that the US government can use to spy on its citizens with little oversight. This is a clear violation of the right to privacy.

Many articles have been written recently about this news, but few have analyzed the actual powers the legislation grants to surveillance agencies and what regular citizens can do to prevent their activities from being monitored. Here we break down what is happening, what you can do to protect your privacy, and how Proton products are designed to resist this type of intrusion.


USA PATRIOT Act

The official title of the USA PATRIOT Act is "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001." To view this law in its entirety, click on the USA PATRIOT Act link below.

The purpose of the USA PATRIOT Act is to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and other purposes, some of which include:

  • To strengthen U.S. measures to prevent, detect and prosecute international money laundering and financing of terrorism
  • To subject to special scrutiny foreign jurisdictions, foreign financial institutions, and classes of international transactions or types of accounts that are susceptible to criminal abuse
  • To require all appropriate elements of the financial services industry to report potential money laundering
  • To strengthen measures to prevent use of the U.S. financial system for personal gain by corrupt foreign officials and facilitate repatriation of stolen assets to the citizens of countries to whom such assets belong.

Below is a brief, non-comprehensive overview of the sections of the USA PATRIOT Act that may affect financial institutions.

This Section allows for identifying customers using correspondent accounts, including obtaining information comparable to information obtained on domestic customers and prohibiting or imposing conditions on the opening or maintaining in the U.S. of correspondent or payable-through accounts for a foreign banking institution.

This Section amends the Bank Secrecy Act by imposing due diligence & enhanced due diligence requirements on U.S. financial institutions that maintain correspondent accounts for foreign financial institutions or private banking accounts for non-U.S. persons.

To prevent foreign shell banks, which are generally not subject to regulation and considered to present an unreasonable risk of involvement in money laundering or terrorist financing, from having access to the U.S. financial system. Banks and broker-dealers are prohibited from having correspondent accounts for any foreign bank that does not have a physical presence in any country. Additionally, they are required to take reasonable steps to ensure their correspondent accounts are not used to indirectly provide correspondent services to such banks.

Section 314 helps law enforcement identify, disrupt, and prevent terrorist acts and money laundering activities by encouraging further cooperation among law enforcement, regulators, and financial institutions to share information regarding those suspected of being involved in terrorism or money laundering.

To facilitate the government's ability to seize illicit funds of individuals and entities located in foreign countries by authorizing the Attorney General or the Secretary of the Treasury to issue a summons or subpoena to any foreign bank that maintains a correspondent account in the U.S. for records related to such accounts, including records outside the U.S. relating to the deposit of funds into the foreign bank. This Section also requires U.S. banks to maintain records identifying an agent for service of legal process for its correspondent accounts.

Allows the Secretary of the Treasury to issue regulations governing maintenance of concentration accounts by financial institutions to ensure such accounts are not used to obscure the identity of the customer who is the direct or beneficial owner of the funds being moved through the account.

Prescribes regulations establishing minimum standards for financial institutions and their customers regarding the identity of a customer that shall apply with the opening of an account at the financial institution.

This Section expands immunity from liability for reporting suspicious activities and expands prohibition against notification to individuals of SAR filing. No officer or employee of federal, state, local, tribal, or territorial governments within the U.S., having knowledge that such report was made may disclose to any person involved in the transaction that it has been reported except as necessary to fulfill the official duties of such officer or employee.

Requires financial institutions to establish anti-money laundering programs, which at a minimum must include: the development of internal policies, procedures and controls designation of a compliance officer an ongoing employee training program and an independent audit function to test programs.

Required the Secretary to consult with the Securities Exchange Commission and the Board of Governors of the Federal Reserve to publish proposed regulations in the Federal Register before January 1, 2002, requiring brokers and dealers registered with the Securities Exchange Commission to submit suspicious activity reports under the Bank Secrecy Act.

This amends the BSA definition of money transmitter to ensure that informal/underground banking systems are defined as financial institutions and are thus subject to the BSA.

Requires FinCEN to establish a highly secure network to facilitate and improve communication between FinCEN and financial institutions to enable financial institutions to file BSA reports electronically and permit FinCEN to provide financial institutions with alerts.


The Fourth Amendment and the Patriot Act

The 2nd U.S. Circuit Court of Appeals has ruled Section 215 of the Patriot Act illegal under federal law but did not rule on constitutionality. Dane Kennedy reports back on a recent seminar discussion that provides historical perspective on this issue.

When the National Security Agency’s massive program to data mine phone, e-mail, and other electronic records was revealed in 2013, many of us were shocked and appalled by this intrusion into our private lives. How could this program be legal? Authorities insisted that it was, pointing to Section 215 of the Patriot Act. But is Section 215 itself constitutional? “No” is the emphatic answer Laura Donohue gave in her compelling lecture at the German Historical Institute, part of its spring series on security and privacy in historical perspective.

Donohue made a historical—or what legal scholars might refer to as an “originalist”—case against Section 215. She placed it in the context of English and American legal debates about general warrants, tracing the arguments and rulings that led to the Fourth Amendment. A professor at Georgetown University Law School and director of its Center on National Security and the Law, Donohue also holds a PhD in British history from Cambridge University. Her training as a historian was skillfully brought to bear in her talk, which drew a direct connection between 18th century efforts to protect citizens from arbitrary power and current concerns about government overreach in the name of security.

The Fourth Amendment’s prohibition of arbitrary searches and seizures, requiring authorities to obtain a warrant based on probable cause, has its roots in several important English court rulings that went against the Crown in the 1760s, though they drew on legal traditions that harkened back to the 17th century and even the Magna Carta. These precedents entered the colonial American scene in the context of the use of general warrants by customs agents. Upon independence, Virginia and other states prohibited general warrants in their constitutions. The Constitutional Convention of 1787 addressed the issue as well, and the result was the Fourth Amendment.

Donohue’s purpose in tracing this history was two-fold. First, she used it to refute a highly influential 1994 Harvard Law Review article, which argued that the Fourth Amendment does not really require the use of warrants. She made the case that this article, which has been cited in some 40 Supreme Court and appellate court rulings, fails to appreciate the amendment’s historical context and intent. Second, she wanted to show that this long established Anglo-American principle of opposition to general warrants, culminating in the Fourth Amendment, remains not merely relevant, but vital to current debates about where to draw the legal line between national security and personal privacy. If the NSA’s indiscriminate data mining derives its legal sanction from Section 215 of the Patriot Act, then it comprises by any reasonable definition a general warrant, and, as such, is unconstitutional.

I, for one, would dearly love to hear Laura Donohue argue her case before the Supreme Court.


Is There Anything We Can Do About It?

It might seem like the average person is fairly powerless to stop the FBI snooping on our browsing history. However, there are some ways of fighting back.

“The failure to prohibit the warrantless collection of search and browser histories is another indicator of the continuing deterioration of internet users' online privacy,” said Chris Hauk, consumer privacy champion at Pixel Privacy. “This is why I strongly recommend that internet users only use security and privacy-focused browsers, such as Brave or the Tor Browser. Also, users should only perform searches on privacy-respecting search engines, such as DuckDuckGo.”

The Tor Browser, for example, works by encrypting your connection to the internet and then passing your traffic through voluntarily run servers to help mask your IP address.

However, the Tor Browser isn't the easiest to use, and your upload and download speeds will suffer with all that encryption and server-hopping.

VPNs are a slightly easier way to ensure incognito browsing. The basic idea behind a VPN is to create a private, encrypted ‘tunnel’ that connects your computer, smartphone, or tablet directly to a secure VPN proxy server. This, in turn, connects you to the rest of the internet.

The VPN server hides your true IP address, making it impossible to trace the connection directly to you. With all traffic to and from your device secured, no one can snoop on your activity or hijack your connection.

The methods will keep you more secure online than doing nothing. But, of course, you could always trying petitioning your senator or representative when the reauthorization returns to try and get the amendment removed.


Everyone's heard of the Patriot Act. Here's what it actually does.

The Patriot Act has become a symbol of the massive expansion of government surveillance after 9/11. So if you're concerned about excessive government surveillance, or if you've ever talked with someone who is, you've probably heard or used "the Patriot Act" as a shorthand for the problem.

That's not exactly right. The Patriot Act was a big, broad law, and a lot of it has nothing to do with surveillance. And the government's current surveillance powers are drawn from some parts of the Patriot Act, but also from other laws.

The current fight in Congress over surveillance programs has led to a lot of confusion about whether "the Patriot Act has expired." It hasn't most of the Patriot Act is permanent. But three of the many, many individual provisions within the law expired, or "sunsetted," at the end of May 2015. The most significant of these is Section 215, which the government used to justify the National Security Agency's controversial phone records program.

But other controversial programs remain in effect. And ultimately, the expiration of three Patriot Act provisions will have only modest effects on the government's spying powers. Here's what you need to know about the original Patriot Act, the three expired provisions within it, and the other ways the government can collect Americans' information.

What is the Patriot Act?

Just weeks after the attacks of September 11, 2001, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act — the USA PATRIOT Act. (Over the course of the bill's existence, most journalistic outlets have given up on the all-caps "PATRIOT" because it's dumb and looks like something out of the Marvel Cinematic Universe.)

The bill passed overwhelmingly. Only one senator (Russ Feingold of Wisconsin) voted against it.

Something like this would seem over the top today, no? (Luke Frazza/AFP)

The Patriot Act covered a lot of ground. Some of its provisions have since been struck down by the courts (the Supreme Court has ruled that it's illegal to indefinitely detain immigrants who aren't charged with crimes, for example) others have become part of the mission of the Department of Homeland Security, which didn't exist when the law was passed. Others have stuck around and aren't the subject of a lot of controversy: the law created a slew of new federal crimes related to terrorism, created federal funds to assist victims of terrorism, and gave the federal government a range of new powers to track and seize money being used by organizations connected to terrorism.

But what "Patriot Act" tends to mean to most Americans — and the reason the parts of the bill that need to be renewed by Congress have faced increasing opposition over the past several years — is several provisions that made it much easier for the government to collect millions of Americans' communications records.

Why are some parts of the Patriot Act expiring?

Back when the Patriot Act was first being debated, Sen. Ron Wyden (D-OR) was worried about some of the powers the Patriot Act was giving the federal government. He voted for the bill, but not before adding a five-year countdown clock to three of the sketchiest-looking provisions. After five years, if Congress hadn't passed a new law renewing the programs, they would "sunset." Wyden hoped "these provisions would be more thoughtfully debated at a later, less panicked time."

Waiting for a less panicked time.

In 2006, there was a little more "thoughtful debate" — including a filibuster, led by Feingold, that caused senators to tweak the surveillance provisions slightly. By 2011, though, Ron Wyden was on the Senate floor warning that there was a "secret Patriot Act": that the federal government secretly believed the law allowed it to conduct way more surveillance of Americans than people assumed. Despite Wyden's warnings, Congress passed a four-year extension — which reset the countdown clock for May 31, 2015.

What did the expired parts of the Patriot Act actually do?

The parts of the law that expired at the end of May cover three of the most controversial programs for domestic and international surveillance.

The one you're most likely to have heard of is Section 215, which is officially called the "business records" provision — it gives the government broad power to ask businesses for their records relating to someone who might be involved in terrorism. For example, if the FBI had been tracking Timothy McVeigh before the Oklahoma City bombing, it might have learned from business records that he'd rented a truck and bought a truckload of fertilizer.

When the Patriot Act was first passed, 215 came under some mild criticism because of fears that the government could force public libraries to turn over someone's borrowing records. (Remember libraries?) But in 2013, documents leaked by former government contractor Edward Snowden revealed that the government had been collecting the phone records of every single customer of phone companies including Verizon. And it was using Section 215 as the justification that made it legal.

The Snowden leaks put Section 215 at the center of a renewed controversy about government surveillance of Americans — which ultimately led to the current legislative fight. But two other, less discussed provisions have also expired.

The "roving wiretap" provision (Section 206) allows the government to tap every device a person uses — landline, cell phone, laptop, etc. — with just one approval from the (famously permissive) Foreign Intelligence Surveillance Court. And the "lone wolf" provision (Section 207) allows the government to surveil someone who might be engaged in international terrorism, even if he or she is not actually connected to any existing terrorist group.

Have any of these provisions actually prevented terrorist attacks?

The Obama administration says that Section 215, in particular, has been extremely helpful in terrorism investigations. But when the government's Privacy and Civil Liberties Oversight Board reviewed the program in January 2014, that is . not what it found (emphasis added):

Where the telephone records collected by the NSA under its Section 215 program have provided value, they have done so primarily in two ways. The first is by offering additional leads regarding the contacts of terrorism suspects already known to investigators, which can help investigators confirm suspicions about the target of an inquiry or about persons in contact with that target. But our review suggests that the Section 215 program offers little unique value here, instead largely duplicating the FBI’s own information-gathering efforts. The second is by demonstrating that known foreign terrorism suspects do not have U.S. contacts or that known terrorist plots do not have a U.S. nexus. [. ]

We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. In that case, moreover, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program.

There's less information about the other two provisions. Section 207, for example — the "lone wolf" program — has apparently never even been used.

Are these the only controversial parts of the Patriot Act?

Hardly. They're just the ones that Congress put the countdown clock on when it passed the original law. In the 15 years since the Patriot Act has passed, Congress and the public have realized that the federal government is using all sorts of provisions to justify surveillance.

The most controversial permanent program under the Patriot Act is the "National Security Letters" program, which lets the government demand communications records from telecom companies without even going through the surveillance court for approval first.

National Security Letters have been used extremely broadly, and some privacy advocates have pointed out that they could simply replace some of the powers the government lost at the end of May. As Julian Sanchez of the Cato Institute wrote last month:

the FBI didn’t even bother using 215 for more than a year after the passage of the Patriot Act.[. ] In at least one case, when the secret court refused an application for journalists’ records on First Amendment grounds, the Bureau turned around and obtained the same data using National Security Letters.

And the Patriot Act isn't the only law that has led to problematic surveillance programs:

What is the USA Freedom Act?

Most members of Congress who want to scale back government surveillance have decided that the best way to fix the Patriot Act is to let surveillance programs continue but put serious restrictions on how they can be used. That's the purpose of the USA Freedom Act. (Its official name is the USA FREEDOM Act: Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act. That is even stupider than the USA PATRIOT Act and sounds like something out of Team America: World Police.)

The USA Freedom Act would force the government to ask the Foreign Intelligence Surveillance Court for approval before being able to access phone records, and would only give it access for specific searches — not just passive bulk collection of everyone's data.

Furthermore, the Freedom Act tackles National Security Letters — it would hold them to the same standards that requests under Section 215 meet, so that the government couldn't use the letters to get data they were banned from getting through the courts. And it would force the surveillance court — which currently operates completely in secret — to publish data about its major decisions.

Other privacy advocates, including Sen. Rand Paul (R-KY), oppose the USA Freedom Act because it would allow some surveillance under Section 215. They'd prefer to see collection of phone records end entirely, and think that simply not renewing the Patriot Act provisions and not replacing them with a new bill is the best way to do that. Other advocates disagree, using National Security Letters as an example of how the government can just use other routes to get the same amount of data.

Read more: How Rand Paul's anti-surveillance filibusters fit into his presidential bid

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The USA Freedom Act of 2015

The USA Freedom Act of 2015 restored some and modified parts of the Patriot Act and barred the government from justifying the bulk collection of telecommunication records with section 215.

It did the same for collections under the National Security Letters provision, as well as forcing the government to request permission from the Foreign Intelligence Surveillance Court. The court was also instructed to make its major decisions public.

The Act was due to expire in 2019, but Donald Trump asked Congress to make three provisions of the Act permanent. Congress instead reauthorized the Act for three months. The legislature then agreed on reauthorization in March 2020, however, Trump threatened to veto it, which led to the indefinite postponement of the Senate's version of the bill.


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Hassoun's attorneys expressed their astonishment in federal court Friday at the invocation of Section 412.

The argued the provision of the Patriot Act is written to 'take a [non-citizen] into custody,' not to retroactively brand someone who's already in detention as a national threat.

'If the government were to prevail in its claim of extraordinary and unprecedented executive power, the government would be free to lock up non-citizens indefinitely based solely on executive say-so, even after they completed serving their sentences,' Jonathan Hafetz, a lawyer with the American Civil Liberties Union, told the court, as reported by the Daily Beast.

In justification for the invocation, McAleen said he did so because Hassoun had taken on a 'leadership role' in a criminal conspiracy to recruit fighters and provide materials in support of terrorist organisations.

McAleen said Hassoun, who first moved to the US in 1989, poses a 'continuing threat to recruit, plan, participate in, and provide material support for terrorist activity.'

However, an entirely different perspective was offered by the presiding judge, Marcia G. Cooke, who said in 2008 there was 'no evidence that these defendants personally maimed, killed or kidnapped anyone in the United States or elsewhere.'

Cooke added the government was unable to find any 'identifiable victims' as a result of his actions.

As a result she specifically rejected the life sentence sought after by the Justice Department, pointing out that years of government surveillance on him yielded no cause for his criminal arrest.

'This fact does not support the government’s argument that Mr. Hassoun poses such a danger to the community that he needs to be imprisoned for the rest of his life,' the judge concluded.

Also contradicting the opinions of McAleen are two professors from the University of Buffalo Law School, Nicole Hallett and Jonathan Manes, who meet with Hassoun almost weekly at the ICE detention facility in Batavia.

The two professors say Hassoun acts as a fatherly figure to other fellow Muslim detainees, aiding their court cases by scouring through law books in the facility's library - even waking up early every day to help prepare breakfast for the 30-or-so others he finds himself incarcerated with.

Under the orders of the Trump administration, the Department of Homeland Security invoked, for the first time in US history, section 412 of the Patriot Act. The clause allows the government to perpetually detain non-citizens imprisoned on American soil who cannot be deported and are deemed on 'reasonable grounds' to be engaged in 'activity that endangers the national security of the United States'

Hallet says both the shock of Hassoun remaining in custody after serving his time, in addition to the unprecedented usage of Section 412, acts as a testimony to the degradation of the rule of law in the wake of 9/11.

'This is Guantanamo on domestic soil,' she told the Daily Beast. 'The government is trying to detain him as long as it wants, and that prison happens to be in Batavia, New York, not at Guantanamo Bay.'

'The government’s repeated and now unprecedented efforts to keep our client in prison indefinitely and without charge are unconstitutional,' a statement posted to ACLU later added.

While Hassoun is said to be mentally strong, his physical health is ailing. Twice in the Batavia facility he has been hospitalized, his attorneys claim, after carrying out hunger strikes to protest his incarceration and subsequently aggravating his diabetes and pre-existing heart condition.

Hassoun has since theorized that his prosecution is the consequent of his decision to not turn into a federal informant while in immigration custody in 2002.

His attorneys say he isn't fighting deportation and would be willing to leave the country for anywhere that would take him.

'He feels quite a bit of angst over [the fact that] he had served his sentence and feels like he should be released,' Hallett told the Daily Beast. 'He’s worried about dying in prison.'


Confidentiality and the USA PATRIOT ACT

SFPL champions intellectual freedom and respects and protects the privacy of all library users, no matter their age. Unless required by law, the Library does not share information about titles of books checked out, the number of books overdue, or the titles of books overdue to anyone other than the user. Protecting user privacy and confidentiality related to information and materials sought and received has long been an integral part of SFPL's mission. In addition, library records are protected under California Government Code Title 1, Division 7, Chapter 3.5, Section 6267. This law exempts from disclosure circulation records showing use of specific library materials by a library borrower, as well as the address or telephone number of the borrower.

What kind of information does the Library keep about books I check out or other information services I use?

To receive a library card, borrowers are required to provide a name, birth date and mailing address. This identifying information is retained as long as the borrower continues to use the library card. A borrower's library record includes current information, items currently checked out or on hold, as well as overdue materials and fines. The Library does not maintain a history of what a borrower has previously checked out once books and materials are returned on time. Similarly, the Library's computer search stations are programmed to delete the history of a user's Internet session and all searches once an individual session is completed. The Library treats reference questions, whether in person or online, confidentially. Personal identifying information related to these questions is purged on an ongoing basis.

What is the USA PATRIOT Act?

On October 25, 2001, Congress passed the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" (USA PATRIOT) Act. The act broadly expands law enforcement's surveillance and investigative powers, with Sections 214-216 applying to libraries and bookstores.

How is SFPL responding to the USA PATRIOT Act?

The USA PATRIOT Act is law, and the Library will comply with it. However, both the Library Commission and the San Francisco Board of Supervisors have formally opposed the Act, including Sections 214-216.

What are Sections 214-216 of the USA PATRIOT Act?

These sections of the Act give law enforcement agencies expanded authority to obtain Library records, secretly monitor electronic communications and prohibit libraries and librarians from informing users of such monitoring or information requests.

In general, how does the Library handle requests for records from law enforcement?

Typically, a court of competent jurisdiction must subpoena requests for borrower records. Based on the advice of the City Attorney in each case, the City Librarian releases the records only if the subpoena is legal and binding upon the Library.

How has the enactment of the USA PATRIOT Act changed how the Library handles requests for borrower records from law enforcement?

Basic protocol remains the same: the request is forwarded to the City Librarian whose response is informed by the advice of the City Attorney. Under the USA PATRIOT Act, requests may come in the form of a search warrant rather than a subpoena.

What about the "gag" provision of the USA PATRIOT Act?

Should Library records be requested under the Act, the law states that Library staff cannot inform the person about whom the information is requested, nor speak to co-workers, the media or other government officials about the inquiry.

Will the Library advocate for a legal challenge to the USA PATRIOT Act?


Myths and Realities About the Patriot Act

On June 8, 2005, the House Judiciary Committee held a hearing on reauthorization of the USA PATRIOT Act. The committee called a single witness, Deputy Attorney General James B. Comey.

Comey used misleading and inaccurate statements in defense of the Patriot Act provisions that are set to expire December 2005. These included a number of myths repeated by Justice Department spokespersons and other Patriot Act defenders. It's long past time to set the record straight.

Myth: ""Under the Patriot Act, I'm very confident in saying there have been no abuses found.""[1]

Reality: The Patriot Act has been abused. The ACLU detailed these abuses in a 10-page letter to Senator Dianne Feinstein, dated April 4, 2005.

  • Brandon Mayfield is a Portland, Oregon resident who is a convert to Islam and an attorney. Mayfield was wrongly accused by the government of involvement in the Madrid bombing as a result of evidence, including mistaken fingerprint identification, that fell apart after the FBI re-examined its case following its arrest and detention on Mayfield on a material witness warrant. Attorney General Gonzales acknowledged before the Senate Judiciary Committee that Section 218 of the Patriot Act was implicated in the secret search of Mayfield's house. FBI admitted that it entered Mayfield's house without a warrant based on criminal probable cause and copied four computer drives, digitally photographed sever documents, seized ten DNA samples and took approximately 335 digital photographs of Brandon Mayfield's home.
  • Tariq Ramadan is regarded by many as Europe's leading moderate Muslim intellectuals. Time Magazine named Ramadan among the Top 100 Innovators of the 21st Century. The government revoked Ramadan's visa to teach at the University of Notre Dame under Section 411 of the Patriot Act, which permits the government to exclude non-citizens from the country if in the government's view they have ""used [their] position of prominence to endorse or espouse terrorist activity or to persuade others to support terrorist activity."" Consequently, an individual who discusses politics that a terrorist organization may adopt as its own viewpoints may be excluded from the United States, even if the individual does not support terrorist activity. As such, the government can essentially use this provision to deny admission to those whose political views it disfavors. There is no doubt that Ramadan uses his position of prominence to espouse his political beliefs. Notably, Ramadan, who denounces the use of violence in the name of Islam, had already been granted a visa after undergoing an extensive security clearance process and had previously been permitted to enter the country on numerous occasions.

A number of other examples are also listed in the ACLU's letter. The Justice Department largely confirmed the substance of these examples in its response to the ACLU letter, dated April 26, 2005, while denying that the examples listed were ""abuses."" The Office of Inspector General of the Department of Justice is actively investigating the Brandon Mayfield case.

The extent of Patriot Act abuse is still unknown because of excessive secrecy enshrouding its use. For example, both special document FBI document snoop orders, called ""national security letters,"" (expanded by section 505 of the Patriot Act) and Foreign Intelligence Surveillance Act (FISA) document orders (expanded by section 215 of the Act), include permanent ""gag"" provisions. These automatic secrecy orders prohibit recipients from telling anyone they have received the order or letter to produce documents that include their customers' private information.

Myth: The Patriot Act simply ""updated the tools of law enforcement to match the technology used by the terrorists and criminals today."" [2]

Reality: The Patriot Act ""updated"" surveillance powers - but failed to ""update"" the checks and balances needed to ensure those surveillance powers include proper judicial oversight.

For example, a roving wiretap follows the target of the surveillance from telephone to telephone. Because there is a greater potential for abuse using roving wiretaps compared to traditional wiretaps, which apply to a single telephone, Congress insisted on important privacy safeguards when, prior to the Patriot Act, it first approved this ""updated"" surveillance power for criminal investigations. Section 206 of the Patriot Act created roving wiretaps in Foreign Intelligence Surveillance Act (FISA) investigations. Section 206 erodes the basic constitutional rule of particularization by allow the government to obtain ""roving wiretaps"" without empowering the court to make sure that the government ascertain that the conversations being intercepted actually involve a target of the investigation.

Section 206 also created ""John Doe"" roving wiretaps - wiretaps that need not specify a target or a device such as a telephone.

The failure to include an ascertainment requirement, and the failure to require naming either a target or a device, is what is controversial about section 206 of the Patriot Act. Congress ""updated"" the surveillance power, but didn't update the safeguards.

Another example is the use of ""pen registers"" and ""trap and trace"" devices to track detailed information about Internet use. Telephone pen/trap orders, as they are known, permit the government to obtain a list of telephone numbers for incoming or outgoing calls with a court order not based on probable cause. However, Internet addressing information reveals much more detail, such as the specific web pages viewed or search terms entered into a search engine. When Congress expanded the government's power to get pen/trap orders for Internet communications in the Patriot Act, however, these differences between telephone and Internet communications were ignored. Congress failed to specify rules to ensure that the privacy of ordinary Americans web surfing and e-mail habits were protected.

Again, Congress updated the surveillance powers, but not the safeguards.

Myth: The Patriot Act is ""mostly taking what we can do to track drug dealers and thugs and give those tools to people tracking spies and terrorists."" [3]

Reality: This statement is both inaccurate and misleading. Most of the Patriot Act is not all related to this concept. Before the Patriot Act, the government could use the same tools, such as wiretapping or using grand jury subpoenas, to investigate drug dealers and terrorists. The government simply had to be investigating a crime of terrorism. There are more than forty such crimes in the United States code, ranging from hijackings and bombings to providing material support for terrorism. 18 U.S.C. § 2332b(g)(5). All of the surveillance powers available to investigate drug dealers are also available to investigate any of these crimes.

Drug dealing and terrorism, therefore, can both be investigated with all of the powers the government has to investigate crimes. Every power the government has to ""track drug dealers and thugs"" can be used, on the identical basis, to track ""spies and terrorists"" on exactly the same basis - e.g., relevance to a grand jury investigation for subpoenas, probable cause for searches and wiretaps, etc. The government's statement above makes an assumption that a criminal investigation is not a terrorist investigation. Such an assumption is not true because criminal investigations do include investigations of terrorists.

Unlike an ordinary drug investigation, however, international terrorism may also be investigated using foreign intelligence surveillance powers. Foreign intelligence investigations, however, are not limited to international terrorism. They may involve intelligence gathering for foreign policy or other purposes involving lawful activities. Expanding the government's surveillance powers in foreign intelligence investigations allows the government to do much more than ""track[] spies and terrorists"" but also allows them to track many other people, including Americans and others not suspected of involvement in terrorism or crime at all.

Myth: The codification of delayed notice warrants in the Patriot Act ""brought national uniformity to a court-approved law enforcement tool that had been in existence for decades."" [4]

Reality: The Patriot Act's ""sneak and peek"" provision is about lowering standards for sneak and peek warrants, not imposing uniformity. The two circuit courts that upheld the use of delayed notice warrants imposed a very similar rule, including a presumptive seven-day limit on delaying notice. Delayed notice search warrants, or ""sneak-and-peak"" warrants, allow investigators to enter an individual's business or dwelling to obtain limited and specific information for an investigation and notifying the individual of the search at a later date. Section 213 of the Patriot Act overturns the seven-day rule and instead allows notice of search warrants to be delayed for an indefinite ""reasonable time."" Section 213 authorizes a judge to delay notice upon a showing of reasonable cause instead of probable cause to believe that there will be an adverse result if notice is given to the target of the search warrant.

Myth: The primary effect of the Patriot Act was to ""bring down this 'wall' separating intelligence officers from law enforcement agents"" [5] in coordination and information sharing.

Reality: Information sharing between criminal and intelligence investigations occurred before 9/11 and the Patriot Act. The primary effect of the Patriot Act was to remove necessary checks and balances in foreign intelligence investigations.

According to the 9/11 Commission Report, procedures only restricted information sharing between agents and criminal prosecutors, ""not between two kinds of FBI agents, those working on intelligence matters and those working on criminal matters.""[6] Moreover, agents could brief criminal prosecutors on the information obtained from investigations, but the prosecutors could not control the information itself. Also, information gleaned from FISA surveillance was repeatedly used in criminal cases because communication of that evidence from intelligence investigators to criminal investigators was permitted before the Patriot Act.

The ""wall"" was more a product of bureaucratic misinformation than statutorily imposed impediments. Former Attorney General Reno issued formal procedures intended to manage only the information sharing between Justice Department prosecutors in intelligence investigations and the Federal Bureau of Investigations in criminal investigations to prevent appearances of impropriety in information sharing practices. The procedures, however, were immediately misunderstood and exaggerated. The FBI exaggerated this limitation to mean that it could not share any intelligence information with criminal investigators, even if the intelligence information was not obtained under the FISA procedures. The NSA also imposed informal caveats on NSA Bin-Laden-related reports that required approval before sharing the information with criminal prosecutors and investigators. Instead of following the procedures, agents kept information to themselves.

Because these problems resulted from a misunderstanding of the law, not the law itself, the Patriot Act is not the reason for improvements in information sharing. FISA information, properly obtained for foreign intelligence purposes, could always be shared with criminal investigators if relevant to crime. Rather, the Patriot Act is about making it easier to use FISA as an end-run around the Fourth Amendment.

Myth: The Patriot Act's ""new powers have allowed authorities to charge more than 400 people in terrorism investigations since the attacks of Sept. 11, 2001, and convict more than half."" [7]

Reality: The government often accuses critics of wrongly blaming the Patriot Act for terrorism-related abuses that are not related to the Patriot Act. Here, the government is attributing convictions it says are terrorism-related that have nothing to do with the Patriot Act, with no explanation as to how any of them were related, if at all, with the Patriot Act.

The government's numbers are also severely inflated. The ""400 convictions"" claim overstates actual number of convictions and omits a number of key facts related to these numbers. A list obtained by the Justice Department defines only 361 cases defined as terrorism investigations from September 11, 2001 to September 2004.[8] 31 of the entries on the list were blacked out. Only 39 of these individuals were convicted of crimes related to terrorism. The median sentence for these crimes was 11 months. This figure indicates that the crime that the government equated with terrorism was not serious. A study conducted by TRAC at Syracuse University notes that ""despite the three-and-a-half-fold increase in terrorism convictions, the number who were sentenced to five years or more in prison has not grown at all from pre-9/11 levels.""[9] The convictions were more commonly for charges of passport violations, fraud, false statements, and conspiracy.[10] Moreover, the median prison time for a serious offense, such as providing material support to a terrorist organization was only 4 months.[11]

Myth: The Patriot Act does not contain a provision that allows the government to obtain library records, and ""[t]he reading habits of ordinary Americans are of no interest to those investigating terrorists or spies."" [12]

Reality: Section 215 of Patriot Act does cover library records. It authorizes the government to more easily obtain a court order requiring a person or business to turn over documents or things ""sought for"" an investigation to protect against international terrorism. Business records include library records. Both Foreign Intelligence Surveillance Act records demands and national security letters (which cover more limited categories of records, including, according to the government, some types of library records relating to Internet access) can be used to obtain sensitive records relating to the exercise of First Amendment rights, including the reading habits of ordinary Americans. For example, a records demand could be used to obtain a list of the books or magazines someone purchases or borrows from the library. Moreover, the government can obtain medical records containing private patient information. The government can also obtain records and lists of individuals who belong to political organizations if it believes the organization espouses political rhetoric contrary to the government.

While both national security letters and section 215 records demands cannot be issued in an investigation of a United States citizen or lawful permanent resident if the investigation is based ""solely"" on First Amendment activities, this provides little protection. An investigation is rarely, if ever, based ""solely"" on any one factor investigations based in large part, but not solely, on constitutionally protected speech or association are implicitly allowed.

Myth: ""[The] Patriot Act is chock-full of oversight in a lot of ways that regular criminal procedure is not: full of the involvement of federal judges?"" [13]

Reality: The statute authorizing the use of ""national security letters"" as amended by the Patriot Act 505(a) contains no judicial oversight. The statute allows the government to compel the production of financial records, credit reports, and telephone, Internet, and other communications or transactional records. The letters can be issued simply on the FBI's own assertion that they are needed for an investigation, and also contain an automatic and permanent nondisclosure requirement. In the most controversial portions of the Patriot Act that require judicial oversight, the judge wields a rubber-stamp. For example, Section 215 requires the FBI to apply to a Foreign Intelligence Surveillance Court to obtain an order for the production of business records. The FBI must only specify that the records pertain to a foreign intelligence investigation, a vague and broad concept. The judge is required to issue the order after the FBI makes this specification, making the judicial review a mere formality than actual oversight.

Myth: Critics believe that the Patriot Act authorized federal law enforcement power to arrest and indefinitely detain material witnesses.

Reality: Federal law enforcement is abusing the current material witness statute, which the Patriot Act did not amend, to improperly detain ""material witnesses"" and failing to provide these detainees their rights in accordance with criminal statutes. The material witness statute[14] was used prior to the Patriot Act and authorizes the federal government to arrest a witness if the government demonstrates in an affidavit to a federal district court that the witness has testimony that is material to a criminal proceeding and ""it is shown that it may become impracticable to secure the presence of the person by subpoena.""[15] Congress enacted this material witness statute for use in limited circumstances. A court may authorize the arrest of a witness who will likely flee if subpoenaed or will otherwise avoid testifying in a criminal proceeding and if it accepts the affidavit demonstrating that the witness has ""material"" information to the criminal proceeding.

The government following September 11, however, has used this material witness statute to detain individuals whom the government believes has information concerning a terrorist investigation. It has failed to provide them their rights to counsel, an initial hearing to determine whether the individual poses a flight risk,[16] and prevented the individuals from contacting family members that they have been arrested. Most of these ""material witnesses"" have not been charged with any crime and were proven innocent.

Myth: Critics are irresponsibly calling for the repeal of the Patriot Act.

Reality: Most responsible critics do not call for the repeal of the Patriot Act. They believe that parts of the Patriot Act are necessary but they support including amendments to the Patriot Act that will restore reasonable checks and balances that will protect civil liberties while ensuring our national security. Such amendments include making explicit that a recipient of a national security letter has the right to file a motion to quash the records demand. They support amendments to the statute to time limit the non-disclosure of receiving a national security letter or a section 215 court order, and to exempt attorney-client communications from the ""gag"" rule. Attorney General Gonzales stated he also supports such amendments.

Myth: The Patriot Act is ""certainly constitutional."" [17]

Reality: This statement is inaccurate. Two sections of the Patriot Act have been declared unconstitutional. In Doe v. Ashcroft, a federal district court struck down a ""national security letter"" records power expanded by the section 505(a) of the Patriot Act, noting that the failure to provide any explicit right for a recipient to challenge a such a broad national security letter search order power violated the Fourth Amendment. It also held that the automatic rule that the recipient can tell no one that the recipient has received the order or letter, including any attorney with whom they may want to consult, violated the First Amendment. Judge Marrero, who handed down the decision, noted as an example of the kind of abuse now authorized by the statute that it could be used to issue a NSL to obtain the name of a person who has posted a blog critical of the government, or to obtain a list of the people who have e-mail accounts with a given political organization. Doe struck down in its entirety the national security letter statute that was amended by the Patriot Act, rendering all of section 505(a) inoperative if the decision is upheld on appeal.

In Humanitarian Law Project v. Ashcroft,[18] the court held that specific phrases in Title 18 Section 2339A, as amended by the Patriot Act section 805(a)(2)(B), violated First Amendment free speech rights and Fifth Amendment due process rights. Section 2339A criminalizes providing "material support or resources" to terrorists and defines material support as including, inter alia, "expert advice or assistance."[19] The plaintiffs in the case sought to provide support to lawful support to organizations labeled as terrorist organizations. The court agreed with the plaintiffs' argument that the phrase ""expert advice or assistance"" was vague and it prohibited protect speech activities, such as distributing human rights literature or consulting with an attorney.[20] The court noted that the Patriot Act bans all ""expert"" advice regardless of the nature of the advice,[21] which assumes that all expert advice is material support to a terrorist organization. Moreover, the court held that the phrase violated due process by failing to give proper notice of what type of conduct was prohibited.[22]