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Internet surveillance provision of USA PATRIOT Act

What is the USA PATRIOT Act of 2001?

Immediately after the terrorist attacks of September 11, 2001, Congress and federal agencies determined that the resources, laws, and tools available were not adequate to prevent or counter terrorism. About six weeks after the attacks, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). The goal of the USA PATRIOT Act is to correct, expand, and strengthen laws concerning the investigation and prosecution of terrorists, while still recognizing the mandates of the United States Constitution.

Critics–including many civil rights organizations–claim that the USA PATRIOT Act unnecessarily encroaches on civil liberties, such as the freedom of speech that is protected by the First Amendment to the United States Constitution. Opponents of governmental surveillance and monitoring of Internet usage and online communications cite the constitutional doctrine of privacy that has been developed by the courts. These opponents have recently expressed concern that the government, in the aftermath of September 11th, has been given increased powers to gather information by way of Internet records.

A controversial provision of the USA PATRIOT Act allowed secret searches of Internet and telephone records. Pursuant to § 505 of the USA PATRIOT Act, the Federal Bureau of Investigation (FBI) could send a National Security Letter (NSL) to an electronic communications company, such as an Internet Service Provider (ISP), and demand records related to a customer's Internet account and usage. In so doing, the FBI did not need to get a court's approval by way of a warrant. The ISP (or the bank, credit bureau, telephone company, or other business) could neither challenge the subpoena nor notify the customer of the request. Prior to the passage of the USA PATRIOT Act, the FBI first had to prove that there was some suspicion that the person whose records were sought was involved with or linked to terrorist or espionage activities. Only then could the FBI demand the customer's records.

Internet surveillance provision of USA PATRIOT Act ruled unconstitutional

In late September 2004, however, a federal court ruled that the surveillance provision of the USA PATRIOT Act was unconstitutionally broad. In striking down § 505, the federal judge said that while national security was of “paramount value,” personal security was equal in importance. The judge held that § 505 was violative of the First Amendment because § 505's permanent ban on disclosure of the request was an impermissible “prior restraint” on free speech. Additionally, the surveillance provision violated the Constitution because it gave “unchecked powers” to obtain private information. Furthermore, it violated the Constitution's prohibitions against unreasonable searches.

The lawsuit was brought against the United States on behalf of an unnamed ISP by a civil liberties organization. The ISP had received a NSL demanding a customer's records but was barred by § 505 from revealing its name.

The judge ordered that the ruling would not take effect for 90 days, thus allowing the federal government time to appeal.

Privacy advocates have voiced their approval of the ruling, while the federal government has stated that the surveillance provision of the USA PATRIOT Act is not unconstitutional.

Copyright 2014 LexisNexis, a division of Reed Elsevier Inc.

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