Terrorism: Section by Section Analysis of the USA PATRIOT Act
CRS Report for Congress
Terrorism: Section by Section Analysis
of the USA PATRIOT Act
Updated December 10, 2001
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress
Terrorism: Section by Section Analysis of the USA
PATRIOT Act
Summary
The Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, P. L. 107-56,
is part of the Congressional response to September 11. It is the merger of two similar
bills. S.1510 passed the Senate on October 11, 147 Cong.Rec. S10604, and
H.R.2975 passed the House on October 12 after substituting the language of
H.R.3108 for its text, 147 Cong.Rec. H6775. Having informally resolved their
differences, the House enacted the measure in final form on October 24, 147
Cong.Rec. H7282, and the Senate on October 25, 147 Cong.Rec. S11059.
The Act consists of ten titles which, among other things:
• give federal law enforcement and intelligence officers greater authority (at least
temporarily) to gather and share evidence particularly with respect to wire and
electronic communications;
• amend federal money laundering laws, particularly those involving overseas
financial activities;
• create new federal crimes, increase the penalties for existing federal crimes,
and adjust existing federal criminal procedure, particularly with respect to acts
of terrorism;
• modify immigration law, increasing the ability of federal authorities to prevent
foreign terrorists from entering the U.S., to detain foreign terrorist suspects, to
deport foreign terrorists, and to mitigate the adverse immigration consequences
for the foreign victims of September 11; and
• authorize appropriations to enhance the capacity of immigration, law
enforcement, and intelligence agencies to more effectively respond to the threats
of terrorism.
Several proposals, offered while the Act was under consideration, were not
among the provisions ultimately enacted, e.g., revision of the McDade-Murtha
Amendment (relating to the application of professional conduct standards to federal
prosecutors), measures to combat illegal Internet gambling, and are thus beyond the
scope of this report.
Contents
Introduction ................................................ 1
Title I – Enhancing Domestic Security Against Terrorism.............1
Title II – Enhanced Surveillance Procedures........................4
Title III – International Money Laundering Abatement and
Anti-Terrorist Financing Act of 2001........................19
Subtitle A–International Counter Money Laundering and
Related Measures......................................19
Subtitle B–Bank Secrecy Act Amendments and Related Improvements..25
Subtitle C–Currency Crimes and Protection.......................30
Title IV – Protecting the Border...............................32
Subtitle A – Protecting the Northern Border......................32
Subtitle B – Enhanced Immigration Provisions.....................33
Subtitle C – Preservation of Immigration Benefits for
Victims of Terrorism....................................36
Title V – Removing Obstacles to Investigating Terrorism.............39
Title VI – Providing for Victims of Terrorism, Public Safety Officers,
and Their Families......................................42
Subtitle A – Aid to Families of Public Safety Officers................42
Subtitle B – Amendments to the Victims of Crime Act of 1984........43
Title VII – Increased Information Sharing for Critical
Infrastructure Protection.................................45
Title VIII – Strengthening the Criminal Laws Against Terrorism.......45
Title IX – Improved Intelligence...............................53
Title X – Miscellaneous......................................55
Terrorism: Section by Section Analysis of the
USA PATRIOT Act
Introduction
The Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Public Law
107-56, is part of the Congressional response to September 11. It is the merger of
two similar bills. S.1510 passed the Senate on October 11, 147 Cong.Rec. S10604,
and H.R.2975 passed the House on October 12 after substituting the language of
H.R.3108 for its text, 147 Cong.Rec. H6775. Having informally resolving their
differences, the House enacted the measure in final form on October 24, 147
Cong.Rec. H7282, and the Senate on October 25, 147 Cong.Rec. S11059.
The report of the House Committee on the Judiciary, H.Rept. 107-236 on
H.R.2975, and the report of the House Committee on Financial Services, H.Rept.
This is a section by section analysis of the Act as enacted. The analysis borrows
the explanations of the House Committee of the Judiciary, in a number of those
instances where the language of the Committee bill and the language of the Act are
identical.
Section 1. Short Title and Table of Contents.
The Act may be cited as the “Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001.”
Section 2. Construction; Severability.
Section 2 confirms that the Act’s provisions should be given maximum effect
and that should any provision be found invalid or unenforceable it should be severed
and the remainder the Act allowed to remain in effect.
Title I – Enhancing Domestic Security Against Terrorism
Section 101. Counterterrorism Fund.
Congress created a Counterterrorism Fund to reimburse the Department of
Justice for the costs of reestablishing operating capacity lost as a consequence of the
destruction of the Alfred P. Murrah Federal Building in Oklahoma City and for other
counterterrorism expenditures, Public Law 104-19, 109 Stat. 249 (1995). This
section takes a similar course in order to reimburse the Justice Department for the
costs of (1) reestablishing the operating capacity of facilities damaged or destroyed
by terrorists; (2) preventing, investigating and prosecuting terrorism by various means
including the payment of rewards (without limitation); and (3) conducting terrorism
threat assessments of federal facilities. The Fund is also available to reimburse federal
agencies for costs associated with overseas detention of individuals accused of
terrorism in violation of United States law.
Section 102. Sense of Congress Condemning Discrimination Against Arab and
Muslim Americans.
It is the sense of Congress that the civil rights and civil liberties of all Americans,
including Arab Americans, Muslim Americans, and Americans from South Asia,
should be protected; that violence and discrimination against any American should be
condemned; and that the patriotism of Americans from every ethnic, racial, and
religious background should be acknowledged.
Section 103. Increased Funding for the Technical Support Center at the Federal
Bureau of Investigation.
This section authorizes appropriations of $200 million for each of fiscal years
2002, 2003, and 2004 for the FBI’s Technical Support Center, created by section 811
of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132,
Section 104. Requests for Military Assistance to Enforce Prohibition in Certain
Emergencies.
The Posse Comitatus Act and its administrative auxiliaries, 18 U.S.C. 1385, 10
U.S.C. 375, ban the use of the armed forces to execute civilian law, absent explicit
statutory permission. Pre-existing statutory exceptions covered Department of Justice
requests for technical assistance in connection with emergencies involving biological,
chemical or nuclear weapons, 18 U.S.C. 2332e, 175a, 229E, 831(e), and 10 U.S.C.
382. This section amends section 2332e to include emergencies involving other
weapons of mass destruction.
Section 105. Expansion of National Electronic Crime Task Force Initiative.
In order to counter various forms of electronic crime including those directed
against the Nation’s critical infrastructure and financial systems, this section instructs
the Director of the United States Secret Service to establish a network of electronic
crime task forces modeled after the New York Electronic Crimes Task Force.
Section 106. Presidential Authority.
The International Emergency Economic Powers Act (IEEPA), 50 U.S.C. 1701
et seq., grants the President emergency economic powers when faced with
extraordinary threats to our national security, foreign policy or economic well being.
Under such conditions, for example, he may freeze the assets located in this country
of a foreign nation or national responsible for the threat. During war time, the
Trading with the Enemy Act (TWEA) gives him the power to confiscate enemy
property located in the United States , 50 U.S.C. App. 1 et seq.
Section 106 amends section 703 of IEEPA, 50 U.S.C. 1702, to permit the
President to confiscate foreign property in response to foreign aggression. The
authority becomes available when the United States is engaged in armed hostilities or
has been attacked by a foreign country or its nationals. At that time, the property of
any foreign person, organization, or nation which planned, authorized, aided or
engaged in the hostilities or attack becomes forfeitable. The President or his delegate
may determine the particulars under which the property is confiscated, administered
and disposed of, subject to an innocent owner defense created by section 316 of the
USA PATRIOT Act. Elsewhere, the USA PATRIOT Act gives the President an
alternative means to confiscate the same property on similar grounds (section 806).
Section 106 is intriguing because on one hand it seems a logical extension of
IEEPA and TWEA, but on the other it appears to revive the constitutionally suspect
forfeiture of estate. Forfeiture of estate was a creature of the common law.1 Upon
conviction and attainder, a felon or traitor forfeited all of his property. Statutory
forfeiture, a more familiar feature of American law, consists of the confiscation of
contraband, the fruits of crimes, and the means to commit a crime – untaxed whiskey,
the drug dealer’s profits, and the rum runner’s ship.
Three distinguishing features characterize forfeiture of estate. The property is
lost solely by reason of its ownership by the felon or traitor; there need be no other
nexus to the crime. As a consequence, it works the confiscation of all of a felon’s
property, not just his crime-related property. Third, it extinguishes his future right to2
hold property and no title to property may pass through him to his heirs.
It is this last feature, this “corruption of the blood”, which the authors of the
Constitution found most distasteful. They decreed that “no attainder of treason shall
work corruption of blood, or forfeiture except during the life of the person attainted,”
U.S.Const. Art. III, §3, cl.2. And when first assembled in Congress, they extended
the ban to all federal crimes: “no conviction or judgment for any offences aforesaid,
shall work corruption of blood, or any forfeiture of estate,” 1 Stat. 117 (1790).3
1 “Three kinds of forfeiture were established in England at the time the Eighth Amendment
was ratified in the United States: deodand, forfeiture, and statutory forfeiture. . . . Of
England’s three kinds of forfeiture, only the third took hold in the United States,” Austin v.
United States, 509 U.S. 602, 611-12 (1993).
2 Statutory forfeitures have often been accomplished through civil proceedings conducted in
rem with the offending property treated as defendant. As a result, some came to believe that
the necessity of the property owner’s criminal conviction constituted the essential distinction
between forfeiture of estate and statutory forfeiture. Yet, occasional forfeiture statutes have
predicated confiscation upon the owner’s conviction throughout our history. Moreover, it
defies credibility to claim that forfeiture of estate’s only ameliorating attribute is its only
essential element.
3 The statutory ban, and its successors, remained in effect until 1984 when it was repealed
(continued...)
During the Civil War, Congress authorized the confiscation of the property of
supporters of the Confederacy, 12 Stat. 589 (1862), but in deference to President
Lincoln’s constitutional doubts interest in the property reverted to the offender’s heirs
upon his death, 12 Stat. 627 (1862).
On the other hand, confiscation under the Trading With the Enemy Act
(TWEA), looks for all intents and purposes like the confiscation of estate of the
property of an enemy nation or national, 50 U.S.C. App. 5(b). Yet the Supreme
Court has upheld TWEA as a valid exercise of the war power without mentioning of
any obstacle interposed by constitutional reservations concerning forfeiture of estate,
Silesian American Corp. v. Clark, 332 U.S. 469 (1947).4
Section 106 also amends IEEPA to cover situations where either the covered
foreign person or the covered property are within this country or otherwise subject
to the jurisdiction of the United States. It allows the President to freeze assets during
the pendency any International Emergency Economic Act investigation rather than
await its outcome as was previously the case. Finally, it permits the government to
present, in secret (ex parte and in camera), any classified information upon which an
IEEPA decision has been based should the decision be subject to judicial review.
Title II – Enhanced Surveillance Procedures
Section 201. Authority to Intercept Wire, Oral, and Electronic Communications
Relating to Terrorism.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
2510 et seq. establishes a judicially supervised procedure under which law
enforcement authorities may intercept wire, oral, or electronic communications. The
procedure, however, is only available in connection with the investigations of
specifically designated serious crimes. Section 201 adds several terrorism offenses
to Title III’s list of designated offenses:
! chemical weapons offenses, 18 U.S.C. 229;
! use of weapons of mass destruction, 18 U.S.C. 2332a;
! violent acts of terrorism transcending national borders, 18 U.S.C. 2332b;
! financial transactions with countries which support terrorism, 18 U.S.C.
! material support of terrorists, 18 U.S.C. 2339A; and
3 (...continued)
through misunderstanding as part of comprehensive revision of federal criminal law, 18
U.S.C. 3563 (1982 ed.).
4 Cf., Societe Internationale v. Rogers, 357 U.S. 197, 211 (1958)(“this summary power to
seize property which is believed to be enemy-owned is rescued from constitutional invalidity
under the Due Process and Just Compensation Clauses of the Fifth Amendment only by those
provisions of the Act which afford a non-enemy claimant a later judicial hearing as to the
propriety of the seizure”)(no suggestion that due process likewise condemns forfeiture of
estate in cases that do not involve treason).
! material support of terrorist organizations, 18 U.S.C. 2339B.
The section makes a technical correction in 18 U.S.C. 2516 by designating as
Section 202. Authority to Intercept Wire, Oral, and Electronic Communications
Relating to Computer Fraud and Abuse Offenses.
Section 202 adds computer fraud and abuse to the Title III predicate offense list.
This section is subject to the sunset provisions of section 224.
Section 203. Authority to Share Criminal Investigative Information.
Previously, federal law enforcement officers who uncovered details of the
activities of international terrorist organizations or of foreign agents in this country
were often not free to pass the information on to federal intelligence officers. This
section allows federal law enforcement officers to share a limited range of foreign
intelligence information, notwithstanding earlier limitations such as those involving
the use of grand jury information or Title III evidence.
Rule 6(e) of the Federal Rules of Criminal Procedure prohibits disclosure of
matters occurring before a federal grand jury. The Rule recognizes exceptions for
disclosures in other judicial proceedings, to prevent abuse of the grand jury process,
for presentation of evidence to other grand juries, and to state law enforcement
officials.
Section 203 creates an exception for intelligence matters. It covers information
(1) related to the protection of the United States against a foreign attack or other
foreign hostile action, against sabotage or international terrorism by a foreign power
or its agents, or against foreign clandestine intelligence activities; (2) concerning a
foreign power or territory related to the national defense, security, or foreign affairs
activities of the United States; or (3) constituting foreign intelligence or
counterintelligence as defined in section 3 of the National Security Act of 1947 (that
is, (a) “information relating to the capabilities, intentions, or activities of foreign
governments or elements thereof, foreign organizations, or foreign persons” or (b)
“information gathered and activities conducted to protect against espionage, other
intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign
governments or elements thereof, foreign organizations, or foreign persons,” 50
U.S.C. 401a(2), (3)).
Now when such information comes to light during the course of a federal grand
jury investigation, it may be passed on to other Federal law enforcement, intelligence,
protective, immigration, national defense, or national security officials, but only for
use in the official duties. Within a reasonable time thereafter, Federal prosecutors
must notify the court of the disclosure under seal. Prosecutors must also follow
disclosure procedures outlined by the Attorney General when sharing intelligence
information that identifies an American citizen or a permanent resident alien.
When authorities executing a Title III interception order discover this same type
of intelligence evidence, they may reveal it to any of these same officers for use in
their official duties. Before the passage of section 203, such information could only
be shared for law enforcement purposes, 18 U.S.C. 2517. As in the case of grand jury
information, Title III intelligence information that identifies an American citizen or a
permanent resident alien can be divulged only pursuant to disclosure procedures
outlined by the Attorney General.
Finally, section 203 creates a generic exception to any other law which purports
to bar federal law enforcement officials from disclosing this type of intelligence
information to these federal officers for official use. The section’s amendments to
Title III are subject to the sunset provisions of section 224, the grand jury and generic
exceptions are not.
Section 204. Clarification of Intelligence Exceptions From Limitations on
Interception and Disclosure of Wire, Oral and Electronic Communications.
Title III at one time stated that the interception of wire or oral communications
for foreign intelligence purposes should be governed by the provisions of the Foreign
Intelligence Surveillance Act (FISA) rather than those of Title III or of chapter 121
of title 18 of the United States Code (relating to stored wire and electronic
communications and transactional records access) or of the Federal Communications
Act, 18 U.S.C. 2511(2)(f). Section 204 amends this instruction in 18 U.S.C.
2511(2)(f) to confirm that in foreign intelligence investigations, FISA governs the
interception of electronic communications and the use of pen registers and trap and
trace devices as well. This section is subject to the sunset provisions of section 224.
Section 205. Employment of Translators by the Federal Bureau of Investigation.
Existing law sometimes waives personnel requirements and limitations in order
to fill positions requiring foreign language skills, e.g., 22 U.S.C. 1474(1)(relating to
employment of translators with respect to United States Information and Educational
Exchange Programs); 22 U.S.C. 4024(a)(4)(B) (relating to the employment of
linguists in connection United States Foreign Service training).
Section 205 waives otherwise applicable personnel requirements and limitations
to permit the Federal Bureau of Investigation (FBI) to hire translators expeditiously
to support counterintelligence investigations and operations. The Director of the FBI
will see to the necessary security requirements. The Attorney General will report to
the Committees on the Judiciary on the number of translators employed by the FBI
and by the Department of Justice, on the impediments to using translators employed
by other government agencies, on the FBI’s needs, and on his recommendations to
meet the FBI’s needs for translation services. This section is not subject to the sunset
provisions of section 224.
Section 206. Roving Surveillance Authority Under the Foreign Intelligence
Surveillance Act of 1978.
Speaking of identical language in an earlier bill, the House Committee on the
Judiciary explained: “Section 1805(c)(2)(B) of title 50, permits the FISA court to
order third parties, like common carriers, custodians, landlords and others, who are
specified in the order, (specified persons) to provide assistance and information to law
enforcement authorities in the installation of a wiretap or the collection of information
related to a foreign intelligence investigation.
“Section 152 amends 1805(c)(2)(B) to insert language that permits the FISA
court to direct the order to <other persons’ if the court finds that Section
1805(c)(2)(B) of title 50, permits the FISA court to order third parties, like common
carriers, custodians, landlords and others, who are specified in the order, (specified
persons) to provide assistance and information to law enforcement authorities in the
installation of a wiretap or the collection of information related to a foreign
intelligence investigation. Section 152 amends 1805(c)(2)(B) to insert language that
permits the FISA court to direct the order to <other persons’ if the court finds that
the `actions of the target of the application may have the effect of thwarting the
identification of a specified person,’ who would be required to assist in the installation
of any court-authorized intercept. This amendment is intended to expand the existing
authority to allow for circumstances where the court finds that the actions of a target
may thwart the identification of a specified person in the order. This is usually
accomplished by the target moving his location. The move necessitates the use of
third parties other than those specified in the original order to assist in installation of
the listening device.
“This amendment allows the FISA court to compel any such new necessary
parties to assist in the installation and to furnish all information, facilities, or technical
assistance necessary without specifically naming such persons. Nevertheless, the
target of the electronic surveillance must still be identified or described in the order
as under existing law.
“For example, international terrorists and foreign intelligence officers are trained
to thwart surveillance by changing hotels, cell phones, Internet accounts, etc. just
prior to important meetings or communications. Under present law, each time this
happens the government must return to the FISA court for a new order just to change
the name of the third party needed to assist in the new installation. The amendment
permits the court to issue a generic order that can be presented to the new carrier,
landlord or custodian directing their assistance to assure that the surveillance may be
undertaken as soon as technically feasible,” H.Rept. 107-256, at 59-60 (2001). This
section is subject to the sunset provisions of section 224.
Section 207. Duration of FISA Surveillance of Non-United States Persons Who are
Agents of a Foreign Power.
Prior to the USA PATRIOT Act, unless directed at a foreign power, FISA
surveillance orders and extensions expired after ninety days, and FISA physical search
orders and extensions were effective for no more forty-five days, 50 U.S.C. 1805(e),
days. Surveillance and physical search orders may now remain in effect for up to 120
days with extensions for up to a year, 50 U.S.C. 1805(e), 1824(d). This represents
a compromise over the Justice Department’s original proposal which would have set
the required expiration date for orders at one year instead of 120 days. This section
is subject to the sunset provisions of section 224.
Section 208. Designation of Judges.
FISA is in essence a series of procedures available to secure court orders in
certain foreign intelligence cases. It operates through a special court which before
passage of section 208 consisted of seven judges, scattered throughout the country,
two of whom are now from the Washington, D.C. area. Section 208 authorizes the
appointment of four additional judges and requires that three members of the court
reside within twenty miles of the District of Columbia, 50 U.S.C. 1803(a). This
section is not subject to the sunset provisions of section 224.
Section 209. Seizure of Voice-Mail Messages Pursuant to Warrants.
Section 209 treats voice mail like e-mail. Thus, Federal officers may gain access
with a warrant or court order. They need no longer resort to the more demanding
regime of Title III that applies in the case of live telephone conversations, United
States v. Smith, 155 F.3d 1050, 1055-56 (9th Cir. 1998). This section is subject to
the sunset provisions of section 224.
Section 210. Scope of Subpoenas for Records of Electronic Communications.
“Terrorists and other criminals often use aliases in registering for Internet and
telephone services. This creates a problem for law enforcement attempting to identify
the suspects of terrorist acts or criminal acts that often support the terrorists. While
the government currently can subpoena electronic communications or a remote
computing services provider for the name, address and length of service of a suspect,
this information does not help when the suspected terrorist or criminal lies about his
or her identity. Permitting investigators to obtain credit card and other payment
information by a subpoena, along with subscriber information (already permitted to
be obtained under current law), will help law enforcement track a suspect and
establish his or her true identity.
“This section amend[s] 18 U.S.C. 2703(c) to authorize a subpoena for
transactional records to include information regarding the form of payment in order
to assist law enforcement in determining the user’s identity,” H.Rept. 107-236, at 56-
Section 211. Clarification of Scope.
Telephone and electronic communications providers may be required to provide
law enforcement officials with customer identifying information without notifying
their customers, 18 U.S.C. 2705(b). Cable companies are prohibited from disclosing
customer identifying information without customer approval, 47 U.S.C. 551 et. seq.
When cable companies began to offer communications services, uncertainty arose
over whether law enforcement access to their customers records was to be governed
by the standards applicable to the communications industry or by the earlier cable
standards, see In re Application of U.S.A. for an Order Pursuant to 18 U.S.C.
2703(d), 158 F.Supp.2d 644 (D.Md. 2001)(holding the cable provisions implicitly
repealed and summarizing existing ambivalent case law).
Section 211 resolves the question by amending the Communications Act, 47
U.S.C. 551, to make it clear that when a cable company offers communications
services it is subject to the provisions of Title III, and chapters 121 and 206 of title
18 of the United States Code (relating to stored wire and electronic communications
and transactional records access and to pen registers and trap and trace devices,
respectively). Cable customer video subscription records, however, remain in the
shelter of the Communications Act protection. Section 211 is not subject to the
sunset provisions of section 224.
Section 212. Emergency Disclosure of Electronic Communications to Protect Life
and Limb.
As the House Committee on the Judiciary observed with respect to a
substantively identical provision: “This section amends 18 U.S.C. 2702 to authorize
electronic communications service providers to disclose the communications (or
records relating to such communications) of their customers or subscribers if the
provider reasonably believes that an emergency involving immediate danger of death
or serious physical injury to any person requires disclosure of the information without
delay.
“This section would also amend the law to allow communications providers to
disclose non-content information (such as the subscriber’s login records). Under
current law, the communications provider is expressly permitted to disclose content
information but not expressly permitted to provide non-content information. This
change would cure this problem and would permit the disclosure of the less-protected
information, parallel to the disclosure of the more protected information.” H.Rept.
Section 213. Authority for Delaying Notice of the Execution of a Warrant.
Standing alone, Rule 41 of the Federal Rules of Criminal Procedure seems to
preclude delayed notification of the execution of “sneak and peek” warrants. A sneak
and peek warrant is one that authorizes officers to secretly enter (either physically or
electronically), conduct a search, observe, take measurements, conduct examinations,
smell, take pictures, copy documents, download or transmit computer files, and the
like; and depart without taking any tangible evidence or leaving notice of their
presence. The Rule on its face requires that after the execution of a federal search
warrant officers leave a copy of the warrant and an inventory of what they have seized
and advise the issuing court what they have done, F.R.Crim.P. 41(d).
The lower federal courts are divided over the extent to which the Rule reflects
Fourth Amendment requirements. The Ninth Circuit sees the Fourth Amendment in
Rule 41, United States v. Freitas, 800 F.2d 1451, 1453 (9th Cir. 1986). The Fourth
Circuit finds no Fourth Amendment offense in search warrants secretly executed and
seizures of intangible evidence that remain unannounced until weeks thereafter,
United States v. Simons, 206 F.3d 392 (4th Cir. 2000). The Second Circuit, whose
views the Congress found persuasive, 147 Cong.Rec. H7197 (daily ed. Oct. 23,
2001), thinks the validity of sneak and peek warrants and of delayed notice are better
judged by Rule 41 standards, United States v. Pangburn, 983 F.2d 449 (2d Cir.
Section 213 rests on the belief that the Fourth Amendment does not condemn
either sneak and peek warrants or delayed notice. For searches conducted under a
warrant issued pursuant to Rule 41 or under a warrant or court order issued pursuant
to any other rule of law, it adopts the delayed notification standards of 18 U.S.C.
2705 (relating to delayed notification of the execution of a court order authorizing
government access to electronic communications held in third party storage for longer
than 180 days). An issuing court may order notice delayed for a reasonable period
of time and with good cause extensions, if it finds reasonable cause to believe that
contemporaneous notification may have any of the adverse consequences described
in section 2705. Section 2705 mentions “(A) endangering the life or physical safety
of an individual; (B) flight from prosecution; (C) destruction of or tampering with
evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously
jeopardize an investigation or unduly delay a trial” as the kinds of adverse
consequences that justify delay. Unless the court concludes seizure is reasonably
necessary, the section only permits delayed notification if the warrant prohibits the
seizure of any stored wire or electronic information (unless otherwise authorized), of
any tangible property, or of any wire or oral communications. Section 213 is not
subject to the sunset provisions of section 224.
Section 214. Pen Register and Trap and Trace Authority Under FISA.
Trap and trace devices and pen registers are devices which secretly identify the
source and destination of calls made to and from a particular telephone. Intelligence
officers may use them pursuant to a court order authorized in the Foreign Intelligence
Surveillance Act. Section 214 grants the request of the Department of Justice for
elimination of the requirements which limited FISA pen register and trap and trace
device orders to facilities used by foreign agents or those engaged in international
terrorist or clandestine intelligence activities, 50 U.S.C. 1842(c)(3)(2000 ed.).
Applicants must still certify that the devices are likely to reveal information relevant
to a foreign intelligence investigation.
Section 214 also adjusts the language of the FISA pen register-trap and trace
authority to permit its use to capture source and destination information for electronic
communications (e.g., e-mail) as well as telephone communications, 50 U.S.C.
1842(d). Finally, the section makes it clear that requests for a FISA pen register-trap
and trace order, like requests for other FISA orders, directed against Americans and
permanent resident aliens (U.S. persons) may not be based solely on activities
protected by the First Amendment, 50 U.S.C. 1842, 1843. Section 214 is subject to
the sunset provisions of section 224.
Section 215. Access to Records and Other Items Under the Foreign Intelligence
Surveillance Act.
FISA previously allowed senior officials of the Federal Bureau of Investigation
to apply for a court order, in connection with a foreign intelligence investigation, for
access to the records of common carriers, public accommodation providers, physical
storage facility operators, and vehicle rental agencies, 50 U.S.C. 1861-1863 (2000
ed.).
Section 215 rewrites those provisions. Assistant Special Agents in Charge of the
FBI field offices may now also apply. The court orders extend to any tangible object
held by anyone. Items sought need not relate to an identified foreign agent or foreign
power as was once the case, but they may only be sought as part of an investigation
to protect the United States from international terrorism or clandestine intelligence
activities. Nor may they be sought in conjunction with the investigation of an
American or permanent resident alien predicated solely on the basis of activities
protected by the First Amendment. There is a good faith defense for anyone who
produces items in response to a court order under the section and production does not
constitute a waiver of applicable privilege. Section 215 is subject to the sunset
provisions of section 224.
Section 216. Modification of Authorities Relating to Use of Pen Registers and Trap
and Trace Devices.
With one critical exception, Section 216 tracks language in a similar section of
H.R. 2975. The House Committee on Judiciary’s description of that section is
instructive: “Under 18 U.S.C. 3121(b), law enforcement may obtain authorization
from a court, upon certification that the information to be obtained is relevant to a
pending criminal investigation, to install and use a <pen register’ device that identifies
the telephone numbers dialed or pulsed from (outgoing calls) or a <trap and trace’
device that identifies the telephone numbers to a particular telephone (incoming calls).
These court authorizations do not permit capturing or recording of the content of any
such communication under the terms of the court order.
“Currently, the government must apply for a new pen/trap order in every
jurisdiction where the target telephone is located. This can cause serious delays that
could be devastating to an investigation, particularly where additional criminal or
terrorist acts are planned.
“Section [216] does not change the requirement under 18 U.S.C. 3121 that law
enforcement seek a court order to install and use pen registers/trap and trace devices.
It does not change the law requiring that the attorney for the government certify to
the court that the information sought is relevant to an ongoing criminal investigation.
“This section does change the current law requiring the government to obtain the
order in the jurisdiction where the telephone (or its equivalent) is located. This section
authorizes the court with jurisdiction over the offense of the investigation to issue the
order, thus streamlining an investigation and eliminating the need to intrude upon the
resources of courts and prosecutors with no connection to the investigation.
“Under the bill, 18 U.S.C. 3123(a) would authorize courts to issue a single pen
register/trap and trace order that could be executed in multiple jurisdictions anywhere
in the United States. The bill divides the existing 18 U.S.C. 3123(a) into two
paragraphs. The new subsection (a)(1) applies to Federal investigations and provides
that the order may be issued to any provider of communication services within the
United States whose assistance is appropriate to the effectuation of the order.
Subsection (a)(2) applies to State law enforcement and does not change the current
authority granted to State officials.
“This section updates the language of the statute to clarify that the pen/register
authority applies to modern communication technologies. Current statutory
references to the target <line,’ for example, are revised to encompass a <line or other
facility.’ Such a facility includes: a cellular telephone number; a specific cellular
telephone identified by its electronic serial number (ESN); an Internet user account
or e-mail address; or an Internet Protocol (IP) address, port number, or similar
computer network address or range of addresses. In addition, because the statute
takes into account a wide variety of such facilities, section 3123(b)(1)(C) allows
applicants for pen register or trap and trace orders to submit a description of the
communications to be traced using any of these or other identifiers.
“Moreover, the section clarifies that orders for the installation of pen register and
trap and trace devices may obtain any non-content information – <dialing, routing,
addressing, and signaling information’ – utilized in the processing or transmitting of5
wire and electronic communications. Just as today, such an order could not be used
to intercept the contents of communications protected by the wiretap statute. The
amendments reinforce the statutorily prescribed line between a communication’s
contents and non-content information, a line identical to the constitutional distinction
drawn by the U.S. Supreme Court in Smith v. Maryland, 442 U.S. 735, 741 43
(1979).
“Thus, for example, an order under the statute could not authorize the collection
of email subject lines, which are clearly content. Further, an order could not be used
to collect information other than <dialing, routing, addressing, and signaling’
information, such as the portion of a URL (Uniform Resource Locator) specifying
Web search terms or the name of a requested file or article.
“This concept, that the information properly obtained by using a pen register or
trap and trace device is non-content information, applies across the board to all
communications media, and to actual connections as well as attempted connections
(such as busy signals and similar signals in the telephone context and packets that
merely request a telnet connection in the Internet context).
“Further, because the pen register or trap and trace <device’ is often incapable
of being physically <attached’ to the target facility due to the nature of modern
communication technology, section 101 makes two other related changes. First, in
5 “Thus, for example, non-content information contained in the <options field’ of a network
packet header constitutes <signaling’ information and is properly obtained by an authorized
pen register or trap and trace device.”
recognition of the fact that such functions are commonly performed today by software
instead of physical mechanisms, the section allows the pen register or trap and trace
device to be <attached or applied’ to the target facility. Likewise, the definitions of
<pen register’ and <trap and trace device’ in section 3127 are revised to include an
intangible <process’ (such as a software routine) which collects the same information
as a physical device.
“Section [216](c) amends the definition section to include a new nexus standard
under 3127(2)(A) to provide that the issuing court must have jurisdiction over the
crime being investigated rather than the communication line upon which the device
is to be installed. This section is also amended to account for the new technologies
relating to the different modes of communication.
“Section [216](d) amends section 3124(d) to ensure that communication
providers continue to be covered under that section. Technology providers are
concerned that the single order provisions of section 101 of the bill eliminates the
protection of 3124(d) of title 18 that provides that <no cause of action shall lie in any
court against any provider of a wire or electronic communication service, its officers,
employees, agents, or other specified persons for providing information, facilities, or
assistance in accordance with the terms of a court order.’ Once there is a nation-wide
order it will not specify the provider and thus, the providers believe they could
become liable upon compliance with the order. The intent of the current statutory
language is to protect providers who comply with court orders, which direct them to
assist law enforcement in obtaining the non-content information. The bill removes the
phrase <the terms of’ so that the phrase reads <in accordance with a court order.’ This
will keep the requirement of a court order but protect the providers even when that
order does not specify the provider.
“Current practice includes compliance with pen registers and trap and trace
orders by the service provider using its systems and technologies to provide the
government all non-content information ordered by the order without the installation
of an additional device by the government to capture that order. It is intended that
these alternative compliance procedures should continue when the provider is willing
and technologically able to comply with the order by these means in an efficient,
complete and timely manner.
“Additionally, this section clarifies that upon request, those being served with the
generic pen/trap order created under this section shall receive written or electronic
certification from the serving officer or official stating that the assistance provided is
related to the order,” H.Rept. 107-236, at 52-4 (2001).
The critical difference in section 216 is its reporting feature. Federal agents
executing a pen register or trap and trace order involving an electronic
communications service to the public must report the details of the device’s
installation and use to the issuing court within 30 days of termination of the order.
This section is not subject to the sunset provisions of section 224.
Section 217. Interception of Computer Trespasser Communications.
“Cyberattacks may be the work of terrorists or criminals. These attacks come in
many forms that cost companies and citizens millions of dollars and endanger public
safety. For instance, the denial-of-service attacks, where the objective of the attack
is to disable the computer system, can shut down businesses or emergency responders
or national security centers. This type of attack causes the target site’s servers to run
out of memory and become incapable of responding to the queries of legitimate
customers or users. The victims of these computer trespasser’s should be able to
authorize law enforcement to intercept the trespasser’s communications. Section
[217] amends current law to clarify that law enforcement may intercept such
communications when authorized by the victims, under limited circumstances.
“Section [217](1) of the bill adds to the definitions under 18 U.S.C. 2510 the
term: (1) <protected computer’ and provides that the term has the same meaning set
forth in 1030 of title 18; and (2) the term <computer trespasser’ means a person who
is accessing a protected computer without authorization and thus has no reasonable
expectation of privacy in any communication transmitted to, through, or from the
protected computer.
“Section [217](2) of the bill amends current law to allow victims of computer
intrusions to authorize law enforcement to intercept the communications of a
computer trespasser [that have been transmitted to, from or through the protected
computer], under limited circumstances. The circumstances are: (1) the owner or
operator of the protected computer must authorize the interception of the trespasser’s
communications; (2) the person who intercepts the communication must be lawfully
engaged in an investigation; (3) the person acting under color of law has reasonable
grounds to believe that the contents of the computer trespasser’s communication to
be intercepted will be relevant to the investigation; and (4) the investigator may only
intercept communications of the computer trespasser,” H.Rept. 107-236, at 55-6
(2001). This section is subject to the sunset provisions of section 224.
Section 218. Foreign Intelligence Information.
The USA PATRIOT Act contemplates a closer working relationship between
criminal and intelligence investigators than has previously been the case. As originally
enacted the application for a FISA surveillance order required certification of the fact
that “the purpose for the surveillance is to obtain foreign intelligence information,” 50
U.S.C. 1804(a)(7)(B)(2000 ed.)(emphasis added). From the beginning, defendants
have questioned whether authorities had used a FISA surveillance order against them
in order to avoid the predicate crime threshold for a Title III order. Out of these
challenges arose the notion that perhaps “the purpose” might not always mean the
sole purpose.6
6 In United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980), decided after
FISA became effective but on the basis of pre-existing law, the court declared, “as the district
court ruled, the executive should be excused from securing a warrant only when the
surveillance is conducted <primarily’ for foreign intelligence reasons. We think that the
district court adopted the proper test, because once surveillance becomes primarily a criminal
The Justice Department sought FISA surveillance and physical search authority
on the basis of “a” foreign intelligence purpose. Section 218 instead demands
certification that foreign intelligence gathering is a “significant purpose” for the FISA
surveillance or physical search order application, 50 U.S.C. 1804(a)(7)(B),
1823(a)(7)(B). This a more exacting standard than the “a purpose” threshold
proposed by the Justice Department, but a clear departure from the original “the
purpose” entry point. FISA once described a singular foreign intelligence focus
prerequisite for any FISA surveillance application, a focus that implicitly discouraged
law enforcement participation. Section 218 encourages coordination between
intelligence and law enforcement officials. Section 504, discussed below, confirms
that such coordination is no impediment to a “significant purpose” certification, 50
U.S.C. 1806(k), 1825(k). Section 218 is subject to the sunset provisions of section
Section 219. Single-Jurisdiction Search Warrants for Terrorism.
“Rule 41(a) of the Federal Rules of Criminal Procedure currently requires that
a search warrant be obtained within the judicial district where the property to be
searched is located. The only exception is where property or a person now in the
investigation, the courts are entirely competent to make the usual probable cause
determination, and because, importantly, individual privacy interests come to the fore and
government foreign policy concerns recede when the government is primarily attempted to
form the basis for a criminal prosecution.” Subsequent case law, however, is not as clear as
it might be: e.g., United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984)(“FISA permits
federal officials to obtain orders authorizing electronic surveillance for the purpose of
obtaining foreign intelligence information. The requirement that foreign intelligence
information be the primary objective of the surveillance is plain not only from the language
of Sec. 1802(b) but also from the requirements in Sec. 1804 as to what the application must
contain. The application must contain a certification by a designated official of the executive
branch that the purpose of the surveillance is to acquire foreign intelligence information, and
the certification must set forth the basis for the certifying officials’s belief that the information
sought is the type of foreign intelligence information described”); United States v. Pelton, 835
F.2d 1067, 1075-76 (4th Cir. 1987)(“We also reject Pelton’s claim that the 1985 FISA
surveillance was conducted primarily for the purpose of his criminal prosecution, and not
primarily for the purpose of obtaining foreign intelligence information. . . . We agree with the
district court that the primary purpose of the surveillance, both initially and throughout was
to gather foreign intelligence information. It is clear that otherwise valid FISA surveillance
is not tainted simply because the government can anticipate that the fruits of the surveillance
may later be used . . . as evidence in a criminal trial”); United States v. Sarkissian, 841 F.2d
959, 907-8 (9th Cir. 1988)(“Defendants rely on the primary purpose test articulated in United
States v. Truong Dinh Hung. . . . One other court has applied the primary purpose test.
Another court has rejected it . . . distinguishing Truong. A third court has declined to decide
the issue. We also decline to decide the issue”); United States v. Johnson, 952 F.2d 565, 572
(1st Cir. 1991)(“Appellants attack the government’s surveillance on the ground that it was
undertaken not for foreign intelligence purposes, but to gather evidence for a criminal
prosecution. FISA applications must contain, among other things, a certification that the
purpose of the requested surveillance is the gathering of foreign intelligence information. . .
.Although the evidence obtained under FISA subsequently may be used in criminal
prosecutions, the investigation of criminal activity cannot be the primary purpose of the
surveillance”).
district might leave before the warrant is executed. This restriction often causes
unnecessary delays and burdens on law enforcement officers investigating terrorist
activities that have occurred across multiple judicial districts. These delays can have
serious adverse consequences on an ongoing terrorism investigation,” H.Rept. 107-
Section 219 allows a magistrate in the district in which a domestic or
international terrorism investigation is being conducted to issue a warrant to be
executed either “within or outside the district,” F.R.Crim.P. 41(a)(3). Although most
useful in criminal investigations spanning a number of states within the United States,
nothing in the section expressly precludes its application overseas when the law of the
place permits such execution.
The Fourth Amendment does not apply to the overseas searches of the property
of foreign nationals, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), but
it does reach the search of American property overseas by American authorities,
United States v. Barona, 56 F.3d 1087, 1092 (9th Cir. 1995). Yet neither Rule 41
nor any other provision of prior federal law apparently contemplated extraterritorial
execution of federal search warrants, cf., F.R.Crim.P.41, Advisory Committee Notes:
1990 Amendment (discussing a proposal for exterritorial execution that the Supreme
Court rejected).7 Section 219 is not subject to the sunset provisions of section 224.
Section 220. Nationwide Service of Search Warrants for Electronic Evidence.
“Title 18 U.S.C. 2703(a) requires a search warrant to compel service providers
to disclose unopened e-mails. This section does not affect the requirement for a search
warrant, but rather attempts to address the investigative delays caused by the
cross-jurisdictional nature of the Internet. Currently, Federal Rules of Criminal
Procedure 41 requires that the <warrant’ be obtained <within the district’ where the
property is located. An investigator, for example, located in Boston who is
investigating a suspected terrorist in that city, might have to seek a suspect’s
electronic e-mail from an Internet service provider (ISP) account located in California.
The investigator would then need to coordinate with agents, prosecutors and judges
in the district in California where the ISP is located to obtain a warrant to search.
These time delays could be devastating to an investigation, especially where additional
criminal or terrorist acts are planned.
“Section [220] amends 2703 to authorize the court with jurisdiction over the
investigation to issue the warrant directly, without requiring the intervention of its
7 The Code does still carry remnants of the consular courts which speak of the overseas
execution of arrest warrants in places where the United States has “extraterritorial
jurisdiction,” 18 U.S.C. 3042. The history of the provision makes it clear that the phrase
“extraterritorial jurisdiction” was intended to coincide with those places in which we had
consular courts, see, S.ReptNo. 73-217, at. 3 (1934), reprinted, 78 Cong.Rec. 4982-983
(1934)(“The countries to which the proposed bill, if enacted into law, would relate are the
following, in which the United States exercises extraterritorial jurisdiction: China, Egypt,
Ethiopia, Muscat, and Morocco”); 22 U.S.C. 141 (1926 ed.)(conferring judicial powers on
consular courts there identified as those located in China, Egypt, Ethiopia, Muscat, Morocco,
Siam and Turkey).
counterpart in the district where the ISP is located,” H.Rept. 107-236, at 57 (2001).
Section 220 is subject to the sunset provisions of section 224.
Section 221. Trade Sanctions.
The Trade Sanctions Reform and Export Enhancement Act of 2000, Title IX of
Public Law 106-387, 114 Stat. 1549A-67, restricts the President’s authority to
impose unilateral agricultural and medical sanctions, subject to certain exceptions.
One of the exceptions permits an export ban on products that might be “used to
facilitate the development or production of a chemical or biological weapon or
weapon of mass destruction,Ӥ904(2)(C). Section 221 amends paragraph 904(2)(C)
to enlarge the ban to reach products that might facilitate the design, development or
production of such weapons. The section amends subsection 906(a) of the trade
sanctions act to allow for the sale of agricultural and medical products to entities in
Syria and North Korea and to permit such sales under license to areas of Afghanistan
controlled by the Taliban.
The section further declares that the trade sanctions act should not be construed
to curtail criminal or civil penalties available with respect to the export of agricultural
products, medicine, or medical devices in violation of restrictions on dealings with:
• a foreign individual or entity designated pursuant to Executive Order 12947,
• a foreign terrorist organization, 18 U.S.C. 2339B;
• a foreign individual or entity designated pursuant to Executive Order 13224,
66 Fed.Reg. 49077 (Sept. 25, 2001)(Blocking Property . . . [of] Persons Who
. . . Support Terrorism);
• a narcotics trafficker designated pursuant to Executive Order 12979, 50 U.S.C.
1701 note (Blocking Assets . . . With Significant Narcotics Traffickers) or to the
Foreign Narcotics Kingpin Designation Act, Public Law 106-120; or
• any foreign individual or entity subject to restriction for involvement in
weapons of mass destruction or missile proliferation.
This section is not subject to the sunset provisions of section 224.
Section 222. Assistance to Law Enforcement Agencies.
FISA, Title III, and the related provisions of law now compel communications
service providers to assist in the execution of court orders issued under those
authorities, e.g., 50 U.S.C. 1805(c)(2)(B), 18 U.S.C. 2518(4). The House Committee
on the Judiciary observed with regard to an earlier version of this section that, “this
Act is not intended to affect obligations under the Communications Assistance for
Law Enforcement Act, 47 U.S.C. 1001 et seq., nor does the Act impose any
additional technical obligation or requirement on a provider of wire or electronic
communication service or other person to furnish facilities or technical assistance,”
H.Rept. 107-236, at 62-3 (2001). In its final form, the section guarantees reasonable
reimbursement for the costs of service providers, landlords, custodians and others
who supply facilities and technical assistance pursuant to section 216 (relating to law
enforcement pen registers and trap and trace orders). This section is not subject to
the sunset provisions of section 224.
Section 223. Civil Liability of Certain Unauthorized Disclosures.
Section 223 establishes a claim against the United States for not less than
$10,000 and costs for violations of Title III, chapter 121, or the Foreign Intelligence
Surveillance Act (FISA), and emphasizes the prospect of administrative discipline for
offending federal officials. This section is subject to the sunset provisions of section
Section 224. Sunset.
Several of the amendments which grant federal law enforcement or intelligence
officers expanded interception powers expire with respect to any foreign intelligence
investigation initiated after January 1, 2006 and to any criminal investigation of
misconduct occurring only after that date. The provisions which expire are:
!section 201 (authority to intercept wire, oral, and electronic communications
relating to terrorism);
!section 202 (authority to intercept wire, oral, and electronic communications
relating to computer fraud and abuse offenses);
subsection 203(b) (authority to share electronic, wire, and oral interception
information);
!subsection 203(d) (general authority to share foreign intelligence
information);
!section 204 (clarification of intelligence exceptions from limitations on
interception and disclosure of wire, oral, and electronic communications);
!section 206 (roving surveillance authority under the Foreign Intelligence
Surveillance Act of 1978);
!section 207 (duration of FISA surveillance of non-United States persons who
are agents of a foreign power),
!section 209 (seizure of voice-mail messages pursuant to warrants);
!section 212 (emergency disclosure of electronic surveillance);
!section 214 (pen register and trap and trace authority under FISA);
!section 215 (access to records and other items under the Foreign Intelligence
Surveillance Act);
!section 217 (interception of computer trespasser communications);
!section 218 (foreign intelligence information);
!section 220 (nationwide service of search warrants for electronic evidence);
!section 223 (civil liability for certain unauthorized disclosures); and
!section 225 (immunity for compliance with FISA wiretap).
The permanent sections and subsections of title II, which do not expire, are:
!subsection 203(a) (sharing grand jury information);
!subsection 203(c) (Attorney General guidelines for sharing grand jury
information);
!section 205 (employment of FBI translators);
!section 208 (number and residence of FISA court judges);
!section 210 (nation wide subpoenas for electronic communications records),
!section 211 (clarification of scope of cable provider obligations);
!section 213 (delayed notification of sneak and peek warrant execution);
!section 216 (modification of authorities relating to pen registers and trap and
trace devices);
!section 219 (single-jurisdiction search warrants for terrorism);
!section 221 (trade sanctions); and
!section 222 (assistance to law enforcement agencies).
Section 225. Immunity for Compliance With FISA Wiretap.
The Foreign Intelligence Surveillance Act orders may include instructions
requiring communications service providers and others to assist officers in the
execution of the order, 50 U.S.C. 1805(c)(2)(B), 1824(c)(2)(B), 1842(c)(2)(B).
Section 225 immunizes those who do from civil liability, 50 U.S.C. 1805(h). This
section is subject to the sunset provisions of section 224.
Title III – International Money Laundering Abatement and Anti-
Terrorist Financing Act of 20018
Section 301. Short Title.
The popular name for Title III of the USA PATRIOT Act is the International
Money Laundering Abatement and Financial Anti-Terrorism Act of 2001.
Section 302. Findings and Purposes.
Section 302 describes the findings and purposes for the enactment of the
International Money Laundering Abatement and Financial Anti-Terrorism Act.
Section 303. 4-Year Congressional Review; Expedited Consideration.
The International Money Laundering Abatement and Financial Anti-Terrorism
Act of this title will sunset after four years upon passage of joint resolution of
repealed. Any joint resolution of repeal is to be afforded “fact track” consideration.
Subtitle A–International Counter Money Laundering and
Related Measures
Section 311. Special Measures for Jurisdictions, Financial Institutions, or
International Transactions of Primary Money Laundering Concern.
Section 311 authorizes the Secretary of the Treasury (the Secretary) to impose
certain regulatory restrictions, known as “special measures,” upon finding that a
jurisdiction outside the U.S., a financial institution outside the U.S., a class of
transactions involving a jurisdiction outside the U.S., or a type of account, is “of
8 M.Maureen Murphy, a legislative attorney in the American Law Division prepared the
section by section analysis of Title III.
primary money laundering concern.” To make this finding, the Secretary must consult
with the Secretary of State and the Attorney General and consider certain factors
relating to the foreign jurisdiction or the particular institution targeted. Among the
factors relating to a jurisdiction are: involvement with organized crime or terrorists,
bank secrecy laws and regulations, the existence a mutual legal assistance treaty with
the U.S., and level of official corruption. The special measures generally involve
detailed record keeping and reporting requirements relating to underlying transactions
and beneficial ownership of accounts. Special measures could involve prohibiting the
maintenance of payable-through or correspondent accounts for such institutions or
jurisdictions, provided that there has been consultation with the Secretary of State,
the Attorney General, and the Chairman of the Federal Reserve Board, as well as with
other appropriate federal banking agencies and consideration has been given to
whether other nations have taken similar action, whether there would be a significant
competitive disadvantage on U.S. financial institutions, and effect upon the
international payment system. “Account” is defined for banks, with authority
delegated to the Secretary to define the term for other financial services businesses
upon consultation with the appropriate federal regulators. The Secretary is required
to issue a regulation defining “beneficial ownership” for purposes of this legislation.
Section 312. Special Due Diligence for Correspondent Accounts and Private
Banking Accounts.
Section 312 requires every financial institution with a private banking or
correspondent account for a foreign person or bank to establish policies and controls
designed to detect and report money laundering through the accounts. If a
correspondent account is maintained for a foreign bank that operates under an
offshore license–i.e., does not and may not do banking business in the chartering
country–or that is licensed by a jurisdiction designated for special measures or listed
as non-cooperative by an international organization in which the U.S. participates and
concurs, enhanced due diligence policies are required. For correspondent accounts
for foreign banks, U.S. banks, at the minimum, must secure ownership information
on the foreign bank, maintain enhanced scrutiny of the account, and ascertain due
diligence information on the foreign banks for which the target bank provides
correspondent banking services. For foreign private banking clients, i.e., those with
aggregated deposits of $1,000,000, information must be secured on the identity of the
owners of the accounts, including beneficial owners, and the source of the funds;
enhanced scrutiny is required for accounts held for senior foreign political figures.
This section becomes effective 9 months after enactment; regulations must be issued
within 6 months of enactment.
Section 313. Prohibition on United States Correspondent Accounts with Foreign
Shell Banks.
Section 313 prohibits U.S. banks, thrifts, private banks, foreign bank agencies
and branches operating in the U.S., and brokers and dealers licensed under the
Securities Exchanges Act of 1934, 15 U.S.C. 78a et seq., from maintaining
correspondent accounts for foreign shell banks–banks that have no physical presence
in any country. It requires that the covered institutions take reasonable steps to
preclude their providing services to such shell banks through other banks and requires
the Secretary to issue implementing regulations.
Section 314. Cooperative Efforts to Deter Money Laundering.
Section 314 requires the Secretary to issue regulations within 120 days of
enactment to encourage further cooperation among financial institutions and
regulatory and law enforcement authorities to promote sharing information on
individuals, entities, and organizations engaged in or suspected of engaging in terrorist
acts or money laundering. In these regulations, the Secretary may require each
financial institution to designate persons to receive information and to monitor
accounts and to establish procedures to protect the shared information. No
information received by a financial institution under this provision may be used for any
purpose other than identifying and reporting activities involving terrorism or money
laundering. If a financial institution uses this information for those purposes, it may
not be held liable for unauthorized disclosure or failure to provide a notice under any
law or regulation, state or federal, or any contract or agreement. The Secretary is
required to provide a semiannual report analyzing suspicious activity reports.
Section 315. Inclusion of Foreign Corruption Offenses As Money Laundering
Crimes.
Section 315 adds to the list of offenses under foreign law, the proceeds of which
may form an element of a federal money laundering prosecution: any crime of
violence; bribery of a public official; theft, embezzlement, or misappropriation of
public funds; certain smuggling or export control violations; and, offenses for which
the U.S. would be obliged to extradite alleged offenders. Also added would be
certain offenses under the U.S. criminal code relating to customs, importation of
firearms, firearms trafficking, computer fraud and abuse, and felony violations of the
Foreign Agents Registration Act.
Section 316. Anti-Terrorist Forfeiture Protection.
Prior to enactment of the USA PATRIOT Act, the President had authority to
order the vesting of seized foreign assets under the Trading With the Enemy Act
§5(b), 50 U.S.C. App. 5(b), which applies when there has been a declaration of war,
but not under the International Emergency Economic Powers Act (IEEPA), 50 U.S.
C. 1702), which applies when the President has declared the existence of an unusual
or extraordinary threat to the U.S. national security, foreign policy, or economy
having its source, in whole or substantial part, outside the United States. Section 106
of the new law amends IEEPA to authorize the President, “when the United States
is engaged in armed hostilities or has been attacked by a foreign country or foreign
nationals,” to “confiscate any property, subject to the jurisdiction of the United States,
of any foreign person, foreign organization, or foreign country that he determines has
planned, authorized, aided, or engaged in such hostilities or attacks against the United
States.”
Section 316 authorizes judicial review of confiscation of terrorist related assets
and sets forth two defenses for those claiming the property that must be proven by a
preponderance of the evidence: (1) that the property is not subject to forfeiture under
the applicable law, and (2) the innocent owner defense detailed in the criminal
forfeiture provision of 18 U.S.C. 983(d). It also authorizes the government to offer
otherwise inadmissible evidence provided the court finds that complying with the
Federal Rules of Evidence would jeopardize national security. There is also a clause
alluding to the right to raise Constitutional claims and claims under the Administrative
Procedure Act and a savings clause preserving other remedies.
Section 317. Long-Arm Jurisdiction Over Foreign Money Launderers.
Section 317 provides jurisdiction over foreign persons, including financial
institutions, for substantive money laundering offenses under 18 U.S.C. 1956 and
1957, provided there is a valid service of process and either the offense involved a
transaction in the U.S. or the property has been the subject of a forfeiture judgment
or a criminal sentence. The district courts are authorized to appoint a receiver to take
control of the property.
Section 318. Laundering Money Through a Foreign Bank.
Section 318 amends the substantive money laundering criminal statute, 18
U.S.C. 1956, to cover laundering money through a foreign bank.
Section 319. Forfeiture of Funds in United States Interbank Accounts.
Section 319 amends 18 U.S.C. 981 to permit forfeiture, including forfeiture
under the Controlled Substances laws, of accounts in offshore offices of foreign banks
by substituting funds in interbank accounts in U.S. financial institutions up to the
value of the funds in the targeted account. The section authorizes the Attorney
General to suspend or terminate such a forfeiture action on conflict-of-law grounds
or upon a finding that to do so would be in the interest of justice and would not harm
the national interests of the U.S.
Section 319, effective within 60 days of enactment, amends the Currency and
Transaction Reporting Act, 31 U.S.C. 5311, et seq., to require U.S. banks, thrifts,
private banks, foreign bank agencies and branches operating in the U.S., and brokers
and dealers licensed under the Securities Exchanges Act of 1934, 15 U.S.C. 78a et
seq., to provide federal regulators, upon request, information on the institution’s
compliance with anti-money laundering requirements or on a customer’s account,
within 120 hours. It also authorizes the Secretary of the Treasury or the Attorney
General to subpoena records from a foreign bank that has a correspondent account
in the U.S. that relate to that account, including records maintained abroad. It
requires U.S. institutions maintaining correspondent accounts for foreign banks to
maintain records identifying the owners of such foreign banks and indicating the name
and address of a U.S. resident authorized to accept service of legal process for
records relating to the correspondent account. U.S. institutions having such
correspondent accounts are required to provide federal law enforcement officers with
these names and addresses within 7 days of receiving a request and are required to
terminate correspondent accounts within 10 business days of receiving a notice from
the Secretary or the Attorney General that the foreign bank has failed to comply with
a subpoena or to contest its issuance. U.S. financial institutions are not to be held
liable for terminating such accounts and are subject to civil penalties of $10,000 per
day for failing to do so.
This section also amends the criminal forfeiture provisions of the Controlled
Substances Act, 21 U.S.C. 853(p) and 853(e) to permit a court to order return to the
jurisdiction of substitute assets, property that may be substituted for unreachable
property subject to forfeiture, and to issue a pre-trial order to a defendant to
repatriate such substitute assets.
Section 320. Proceeds of Foreign Crimes.
Section 320 authorizes the forfeiture of property derived from or traceable to
violations of felonious foreign controlled substances laws, provided the offense is
punishable by death or a term of imprisonment of more than one year under the law
of the foreign nation and under U.S. law, had it occurred within the jurisdiction of the
U.S.
Section 321. Financial Institutions Specified in Subchapter II of Chapter 53 of Title
Section 321 adds credit unions and CFTC-regulated or registered futures
commission merchants, commodity trading advisors, and commodity pool operators
to the specific list of financial institutions subject to the requirements of the Currency
and Foreign Transaction Reporting Act. Pre-existing law did not specifically include
these entities although it delegated broad authority to the Secretary to apply the
requirements to “any other business ... whose cash transactions have a high degree of
usefulness in criminal, tax, or regulatory matters.”
Section 322. Corporation Represented by a Fugitive.
Section 322 amends 28 U.S.C. 2466 to include corporations having a majority
stockholder who is a fugitive, thus, disallowing such corporations to file innocent
owner to successfully pursue innocent owner claims in a civil or criminal forfeiture
cases.
Section 323. Enforcement of Foreign Judgments.
Section 323 amends 28 U.S.C. 2467 to extend authority for judicial enforcement
of foreign confiscation from the previous provisions limiting such enforcement to
confiscations related to drug trafficking offenses. Under the newly enacted provision
U.S. district courts may enforce foreign confiscations related to any offense under
foreign law that, if committed under U.S. law, would have permitted forfeiture.
Section 324. Report and Recommendation.
Section 324 requires the Secretary of the Treasury, within 30 months of
enactment, to report on operations respecting the provisions relating to international
counter-money laundering measures and any recommendations to Congress as to
advisable legislative action.
Section 325. Concentration Accounts at Financial Institutions.
Section 325 authorizes the Secretary of the Treasury to prescribe regulations
governing maintenance of concentration accounts by financial institutions. If issued,
such regulations must prohibit financial institutions from allowing clients to direct
transactions through those accounts, prohibit financial institutions from informing
customers of the means of identifying such accounts, and require each financial
institution to establish written procedures to document all transactions involving a
concentration account that amounts belonging to each customer may be identified.
Section 326. Verification of Identification.
Section 326 requires the Secretary of the Treasury, jointly with appropriate
regulators of financial institutions, within a year of enactment, to prescribe minimum
standards for identifying customers opening accounts at financial institutions. These
are to include procedures to verify customer identity and maintain records of
information used to verify identity. They are also to require that government lists of
terrorists and terrorist organizations be consulted. Under this section, the Secretary
is required to submit a report to Congress within six months of enactment,
recommending a means of insuring similarly accurate identification of foreign
nationals, requiring an identification number similar to a Social Security number or a
tax identification number for foreign nationals opening accounts at financial
institutions, and setting up a system for financial institutions to review information
held by government agencies to verify identities of foreign nationals opening accounts.
Section 327. Consideration of Anti-Money Laundering Record.
Section 327 amends the Bank Holding Company Act and The Federal Deposit
Insurance Act, to require that, before approving certain acquisition or merger
applications under the Bank Holding Company Act or the Federal Deposit Insurance
Act, the Board of Governors of the Federal Reserve System and the Federal Deposit
Insurance Corporation must consider the institution’s effectiveness in combating
money laundering.
Section 328. International Cooperation on Identification of Originators of Wire
Transfers.
Section 328 requires the Secretary of the Treasury to encourage foreign
governments to require the name of the originator in wire transfer instructions and
include it from origination to disbursement. The Secretary is to report annually on
progress toward this end to House Financial Services Committee and Senate Banking,
Housing, and Urban Affairs Committee.
Section 329. Criminal Penalties.
Section 329 criminalizes the soliciting of a bribe by anyone acting on behalf of
an entity of the Federal Government in connection with the administration of the
International Money Laundering Abatement and Anti-Terrorist Financing Act of
2001, subject to a fine of up to three time the value of the thing of value constituting
the bribe, 15 years imprisonment, or both.
Section 330. International Cooperation in Investigations of Money Laundering,
Financial Crimes, and the Finances of Terrorist Groups.
Section 330 states the sense of Congress that international negotiations should
be pursued for further cooperative efforts to insure that foreign financial institutions
maintain adequate records relating to foreign terrorist organizations and money
launderers and make such records available to U.S. law enforcement officials and
domestic financial institution supervisors.
Subtitle B–Bank Secrecy Act Amendments and Related
Improvements
Section 351. Amendments Relating to Reporting of Suspicious Activities.
Section 351 amends the Currency and Foreign Transactions Reporting Act, 31
U.S.C. 5318(g)(3), to extend the safe harbor provisions for financial institutions and
their employees who provide information as to possible law violations to cover all
voluntary disclosures of possible law violations made to any federal government
agency. Also covered are employees or agents of institutions who require others to
make such disclosures. The immunity provided under the legislation covers potential
liability under contracts and other legally enforceable agreements. Previously,
immunity was provided only for disclosures of violation of law or regulation pursuant
to law or regulation; there was no specific immunity for those requiring others to
make disclosures; and, immunity extended only to liability under laws or regulations
of the United States or constitution, law, or regulation of a state or political
subdivision thereof. The section makes it clear that the liability does not extend to
prosecutions brought by governmental entities. Disclosure to the subject of the tip-off
is prohibited. Information disclosed about potential law violations may be used in
employment references to other financial institutions as well as, under the rules of the
securities exchanges, in termination notices.
Section 352. Anti-Money Laundering Programs.
Section 352, effective 180 days after enactment, requires each financial
institution to develop an anti-money laundering program to include development of
internal policies, designation of a compliance officer, ongoing employee training, and
an independent audit function to test the programs. It authorizes the Secretary of the
Treasury to prescribe minimum standards for such programs and to exempt those
financial institutions that are not covered by the regulations promulgated under the
Currency and Foreign Transactions Reporting Act. It requires the Secretary to
prescribe regulations that consider the extent to which the requirements imposed
under this section comport with the size, location, and activities of the financial
institutions to which they apply.
Section 353. Penalties for Violations of Geographic Targeting Orders and Certain
Recordkeeping Requirements, and Lengthening Effective Period of Geographic
Targeting Orders.
Section 353 extends the civil and criminal penalties under the Currency and
Foreign Transactions Reporting Act, 31 U.S.C. 5321(a) and 5322, to include
violations of geographic targeting orders issued under that Act and willful violations
of regulations prescribed under the record keeping requirements of the Bank Secrecy
Act, found in Section 21 of the FDIA, 12 U.S.C. 1829(b), or violations of regulations
covering uninsured financial institutions issued by Treasury under the authority of 12
U.S.C. 1951 - 1959. Before enactment of USA-PATRIOT, 12 U.S.C. 1829(b)
carried no criminal penalties and set civil penalties for violations of regulations issued
under 12 U.S.C. 1829(b) at up to $10,000. Section 1955 of Title 12, U.S.C. carried
civil penalties of up to $10,000; and, 12 U.S.C. 1956 carried a criminal penalty of up
to $1,000 and imprisonment for one year. 31 U.S.C. 5321(a) permits civil penalties
of $25,000 or the amount of the instrument (not to exceed $100,000); 31 U.S.C.
5322 permits criminal penalties of up to $250,000 in fines and imprisonment of up to
5 years for a single offense and enhancement for offenses committed in conjunction
with other offenses or as a pattern of criminal activity.
The section also extends the prohibitions on structuring transactions to avoid
reporting requirements, 31 U.S.C. 5324, to cover structuring to avoid geographic
targeting orders and record keeping requirements of the Bank Secrecy Act, found in
Section 21 of the FDIA, 12 U.S.C. 1829(b) and 12 U.S.C. 1951- 1959. It extends
the permissible length of geographic targeting orders from 60 to 180 days.
Section 354. Anti-Money Laundering Strategy.
Section 354 includes among the areas suggested for inclusion in the annual anti-
money laundering strategy data regarding the funding of international terrorism acts.
Section 355. Authorization to Include Suspicions of Illegal Activity in Written
Employment References.
Section 355 authorizes depository institutions, “[n]otwithstanding any other
provision of law,” to disclose the possible involvement of institution-affiliated parties
in potentially unlawful activity. Such disclosures may be made to other insured
depository institutions requesting employment references, provided the disclosure is
not made with malicious intent.
Section 356. Reporting of Suspicious Activities Reports by Securities Brokers and
Dealers; Investment Company Study.
Section 356 requires the Secretary of the Treasury, by January 1, 2002, to
publish proposed regulations requiring registered brokers and dealers to file
suspicious activity reports under 31 U.S.C. 5318(g). It also authorizes the Secretary
to prescribe such regulations for futures commission merchants, commodity trading
advisors, and commodity pool operators registered under the Commodity Exchange
Act. It also requires a report, within one year of enactment, recommending effective
regulations under the Currency and Foreign Transactions Reporting Act for
investment companies, as defined in the Investment Company Act of 1940, and to
evaluate the possibility of requiring trusts and personal holding companies to disclose
their beneficial owners when opening accounts at depository institutions.
Section 357. Special Report on Administration of Bank Secrecy Provisions.
Section 357 requires the Secretary of the Treasury to submit a report, within six
months of enactment, on the role of the Internal Revenue Service in administering the
Bank Secrecy Act’s Currency and Foreign Transactions Reporting Act. The report
is specifically to address such issues as whether processing of information is to be
shifted from the Internal Revenue Service and whether the Internal Revenue Service
is to retain authority for auditing money services and gaming businesses’ compliance.
Section 358. Bank Secrecy Provisions and Activities of United States Intelligence
Agencies to Fight International Terrorism.
Section 358 authorizes the Secretary of the Treasury to refer suspicious activity
reports to U.S. intelligence agencies for use in the conduct of intelligence or
counterintelligence activities to protect against international terrorism. It authorizes
the release of information under the Currency and Foreign Transactions Reporting
Act and other provisions of the Bank Secrecy Act, the Right to Financial Privacy Act,
and the Fair Credit Reporting Act, to U.S. intelligence agencies by amending 31
U.S.C. 5311, 5318(g)(4)(b), 5319; 12 U.S.C. 1829(b), 1953; 12 U.S.C. 3412(a); 15
U.S.C. 1681x.
Section 359. Reporting of Suspicious Activities by Underground Banking Systems.
Section 359 specifically includes “a licensed sender of money or any other person
who engages as a business in the transmission of funds, including any person who
engages as a business in an informal money transfer system or any network of people
who engage as a business in facilitating the transfer of money domestically or
internationally outside of the conventional financial institutions system” as a “financial
institution” subject to the requirements of the Currency and Foreign Transactions
Reporting Act. It subjects them to any regulations promulgated under the authority
of section 21 of the Federal Deposit Insurance Act, 12 U.S.C. 1829b. That section
of the law provides authority for the regulations issued under 31 C.F.R. Part 103,
requiring reports of currency and foreign transactions, including those requiring
suspicious activity reports from money services businesses, 31 C.F.R. § 103.20.
Section 359 also mandates a report by the Secretary, within a year of enactment, on
whether further legislation is needed with respect to these underground banking
systems, including whether the threshold for reporting suspicious activities ($2,000)
should be lowered for them.
Section 360. Use of Authority of United States Executive Directors.
Section 360 authorizes the President to direct the U. S. Executive Directors of
international financial institutions to use their voice and vote to support countries or
entities that have contributed to the U.S. anti-terrorism efforts and ensure that no
funds of their institutions are paid to persons who threaten to commit or support
terrorism. International financial institutions, as defined in 22 U.S.C. 262r(c)(2),
include the International Monetary Fund, the International Bank for Reconstruction,
the European Bank for Reconstruction and Development, the International
Development Association, the International Finance Corporation, the Multilateral
Investment Guarantee Agency, the African Development Bank, the African
Development Fund, the Asian Development Bank, the Bank for Economic
Development and Cooperation in the Middle East and North Africa, and the
InterAmerican Investment Corporation.
Section 361. Financial Crimes Enforcement Network (FinCEN).
Section 361, by enacting 31 U.S.C. 310, transforms FinCEN from a Treasury
Department bureau established administratively to a statutory bureau in the Treasury
Department. It specifies that it is to be headed by a Director to be appointed by the
Secretary. It details its duties and powers, not all of which are summarized here.
Subject to applicable legal requirements and guidance by Treasury, FinCEN is to
maintain a government-wide data access service to information collected under the
anti-money laundering reporting laws, information on currency flows, and other
records maintained by other government offices as well as privately and publically
available information. It is to analyze and disseminate data : (1) to federal, state,
local, and foreign law enforcement officials to identify possible criminal activity; and
(2) to regulatory officials to identify possible violations of the anti-money laundering
reporting requirements. It is to determine emerging trends and methods in money
laundering, and support intelligence activities against international terrorism.
FinCEN is to establish and maintain a financial crimes communications center to
furnish law enforcement authorities with intelligence information relating to
investigations and undercover operations. It is to furnish informational services to
financial institutions, federal regulatory agencies, and law enforcement authorities, in
the interest of countering terrorism, organized crime, money laundering, and other
financial crimes. It is to assist law enforcement and regulatory authorities in
combating the use of informal nonbank networks permitting transfer of funds or the
equivalent of funds without records and in insuring compliance with criminal and tax
laws. It is to provide computer and data support and data analysis to the Secretary
of the Treasury for tracking and controlling foreign assets. It is to administer the anti-
money laundering reporting requirements as delegated by the Secretary of the
Treasury.
Section 361 further specifies that the Secretary is to proscribe procedures with
respect to the government-wide data access service and the financial crimes
communications center maintained by FinCEN to provide efficient entry, retrieval,
and dissemination of information. This is to include a method for submitting reports
by Internet, cataloguing of information, and prompt initial review of suspicious
activity reports. Section 361 requires the Secretary to develop, in accordance with
the Privacy Act, 5 U.S.C. 552a, and the Right to Financial Privacy Act, 12 U.S.C.
3401, et seq., procedures for determining access, limits on use, and “how information
about activities or relationships which involve or are closely associated with the
exercise of constitutional rights are screened out.”
Appropriations of such sums as are necessary are authorized for fiscal years
through 2005.
The Secretary is to study methods for improving compliance with the reporting
requirements under 31 U.S.C. 5314, relating to foreign currency transactions, and to
submit an annual report to Congress on the subject, beginning six months after
enactment.
Section 362. Establishment of Highly Secure Network.
Section 362 requires the Secretary to establish as operational within nine months,
a highly secure network in FinCEN to allow financial institutions to file electronically
reports required under the Bank Secrecy Act and to provide financial institutions with
alerts and other information regarding suspicious activities warranting immediate and
enhanced scrutiny.
Section 363. Increase in Civil and Criminal Penalties for Money Laundering.
Section 363 amends 31 U.S.C. 5321(a) and 5322 to permit the Secretary to
impose a civil money penalty and a court to impose a criminal penalty equal to 2 times
the amount of the transaction, but not more than $1,000,000 for violations of the
suspicious activity reporting requirements, under 31 U.S.C. 5318(i) and (j) or any
special measures imposed under 31 U.S.C. 5318A. Under pre-existing law, the
Secretary had authority to impose a civil money penalty of the amount of the
transaction, up to $100,000, or $25,000; and, a criminal fine for a violation of the
suspicious activity reporting requirement was set at not more than $250,000.
Section 364. Uniform Protection Authority for Federal Reserve Facilities.
Section 364 authorizes the Federal Reserve Board to issue regulations, subject
to the approval of the Attorney General, to authorize personnel to act as law
enforcement officers to protect the Board’s personnel, property, and operations,
including the Federal Reserve banks, and for such personnel to carry firearms and
make arrests. Pre-existing law provided no such authority.
Section 365. Reports Relating to Coins and Currency Received in Non-Financial
Trade of Business.
Section 365 adds a new section to the anti-money laundering reporting
requirements, 31 U.S.C. 5331. It requires anyone engaging in a trade or business,
who receives $10,000 in coins or currency (including foreign currency and financial
instruments) in a single transaction or in two related transactions to file a report on
the transaction to FinCEN as prescribed by the Secretary in regulations. The form for
such reports must include the name and address of the person from whom the coins
or currency are received, the date and nature of the transaction, and such other
information as the Secretary may prescribe. Exemptions are made for reports filed
by financial institutions under 31 U.S.C. 5313 and its implementing regulations, and
for transactions occurring outside the United States–unless the Secretary so
prescribes. The section also includes a provision that prohibits structuring transactions
to cause such businesses to evade these reporting requirements or requirements under
implementing regulations.9 “Nonfinancial trade or business” is defined to mean any
trade or business other than a financial institution subject to reporting requirements
under 31 U.S.C. 5313 and regulations thereunder.
Under pre-existing law, the Secretary had broad authority to apply the reporting
requirements of 31 U.S.C. 5313 by regulation. Under 31 U.S.C. 5312 “financial
institution” is defined explicitly to include many non-financial businesses including
vehicle sales, real estate closings, the United States Postal Service, and casinos. 31
U.S.C. 5312(a)(2)(T), (U), (V), and (X). It also may include any business or agency
determined by the Secretary to engage in an activity that is a substitute for any of the
activities listed as “financial institutions,” and “any other business designated by the
Secretary whose cash transactions have a high degree of usefulness in criminal, tax,
or regulatory matters.” 31 U.S.C. 5312(a)(2)(Z) and (Y). The Secretary has, thus far,
not chosen to exercise this power broadly. The new law provides even more
comprehensive authority but does not require reports until regulations are issued.
Section 366. Efficient Use of Currency Transaction Report System.
Section 366 requires the Secretary to study expanding the statutory exemption
system to the currency transaction reporting requirements , under 31 U.S.C. 5313,
authorizing exemptions for transactions with various entities and qualified business
customers from the domestic currency and coin reporting requirements. The study
is to address methods for improving financial institutions’ use of these exemptions to
reduce the submission of reports with little or no value for law enforcement purposes.
A report on this is required within one year.
Subtitle C–Currency Crimes and Protection
Section 371. Bulk Cash Smuggling into or out of the United States.
Section 371 creates a new criminal offense, knowingly concealing more than
$10,000 and transporting it or attempting to transfer it out of or into the United
States. Conviction under the statute is subject to imprisonment for up to 5 years and
forfeiture of any property involved in the offense. Preexisting law, 31 U.S.C. 5316,
requires a report by anyone transporting monetary instruments, defined to include
currency, of more than $10,000 into or out of the U.S. In United States v.
Bajakajian, 524 U.S. 324 (1998), the Supreme Court ruled it unconstitutional to
require forfeiture of $357,144, in cash that the defendant possessed legitimately and
was attempting to carry with him when leaving the United States. The Court found
the penalty disproportional to the gravity of the offense and a violation of the
Excessive Fines Clause of the Eighth Amendment to the U. S. Constitution. In
reaching that decision, the Court considered the fact that the offense was merely a
reporting offense since it was not illegal to transport the currency.
9 There appears to be a typographical error in the text of the legislation. The prohibition on
structuring refers to 31 U.S.C. 5333, rather than to 5331.
Section 372. Forfeiture in Currency Reporting Cases.
Section 372 authorizes criminal forfeiture and civil forfeitures for violations of
the reporting requirements relating to monetary instruments and makes the criminal
forfeiture procedures of section 413 of the Controlled Substances Act and the civil
forfeiture procedures of 18 U.S.C. 981(a)(1)(A) (money laundering) applicable to
criminal and civil forfeiture, respectively, under 31 U.S.C. 5313 (reports on domestic
coins and currency), 5316 (reports on exporting monetary instruments), and 5324
(structuring transactions to evade reporting requirements). Pre-existing law
authorized forfeiture of any property involved in the transaction in violation of 31
U.S.C. 5324(b) (international monetary instruments) or property traceable to such
property under customs procedures, as held by the court in United States v. Twenty
Thousand Seven Hundred Fifty-Seven Dollars and Eight-Three Cents ($20,757.83)
Canadian Currency, 769 F. 2d 479 (8th Cir. 1985).
Section 373. Illegal Money Transmitting Businesses.
Section. 373 prohibits anyone from knowingly conducting, controlling,
managing, supervising, directing, or owning a money transmitting business: (1)
without a license in a state that requires such a license and subjects operating without
a licence to state misdemeanor or felony penalties; (2) not registered with Treasury
under 31 U.S.C. 5330; or (3) involves the transportation or transmission of funds that
the defendants knows to have been derived from a criminal offense or are intended to
be used to promote or support unlawful activity. The section prescribes a federal
penalty of up to five years’ imprisonment and criminal fines and authorizes civil
forfeiture of property involved in transactions in connection with this offense.
Under the Money Laundering Suppression Act of 1994, 31 U.S.C. 5330(a), the
Secretary of the Treasury is required to establish a system to register money
transmitting businesses. FinCEN’s regulations require registration by December 31,
Section 374. Counterfeiting Domestic Currency and Obligations.
Section 374 extends the definition of counterfeiting obligations of the United
States to cover analog, digital, or electronic images, as well as “any plate, stone, or
other thing or part thereof, used to counterfeit” such obligations or securities, as
provided in pre-existing law, 18 U.S.C. 470(2). This section is also amended to
provide similar penalties for offenses committed outside the U.S. as are applicable to
those within the U.S. Other provisions increase the penalties under other
counterfeiting statutes to 20 years’ imprisonment: 18 U.S.C. 471 (obligations or
securities of the U.S.); 472 (uttering counterfeit obligations or securities); 473
(dealing in counterfeit obligations or securities); and, 474 (using plates or stones for
counterfeiting).
The section amends 18 U.S.C. 474 to cover counterfeiting involving an analog,
digital or electronic image of U.S. obligations, unless authorized by Treasury. It
amends 18 U.S.C. 476 (taking impressions of tools used for obligations or securities
of the U.S.) to increase the penalty from 10 years to 25 years’ imprisonment. It
amends 18 U.S.C. 477 (possessing or selling impressions of tools used for obligations
or securities) to cover an analog, digital, or electronic image. It raises the penalty for
connecting parts of different notes, 18 U.S.C. 484, from five years’ to ten years’
imprisonment, and for offenses under 18 U.S.C. 493 (bonds and obligations of certain
lending agencies), from five to ten years’ imprisonment.
Section 375. Counterfeiting Foreign Currency and Obligations.
Section 375 increases the penalties for violations of various offenses involving
foreign currency and obligations as follows: 18 U.S.C. 478 (foreign obligations or
securities, penalty raised from five to 20 years); 18 U.S.C. 479 (uttering counterfeit
foreign obligations, penalty raised from three to 20 years); 18 U.S.C. 480 (possessing
counter foreign obligations or securities, penalty raised from one to 20 years); 18
U.S.C. 481 (plates or stones for counterfeiting foreign obligations or securities,
penalty raised from five to 20 years); 18 U.S.C. 482 (foreign bank notes, penalty
raised from two to twenty years); and 18 U.S.C. 483 (foreign bank notes, penalty
raised from two to 20 years). The section also criminalizes counterfeiting involving
an analog, digital, or electronic image of foreign obligations and securities. It adds
18 U.S.C. 2339B, providing material support to designated foreign terrorist
organizations as a predicate for a money laundering prosecution under 18 U.S.C.
Section 377. Extraterritorial Jurisdiction.
Section 377 enhances the applicability of 18 U.S.C. 1029 (computer fraud) by
covering offenses committed outside the U.S. that involve an access device issued by
a U.S. entity, such as a credit card, provided the defendant transports, delivers,
conveys, transfers to or through, or otherwise stores, secrets, or holds within the
jurisdiction of the U.S., any article used to assist in the commission of the offense or
the proceeds of such offense or property derived therefrom.
Title IV – Protecting the Border
Subtitle A – Protecting the Northern Border
Section 401. Ensuring Adequate Personnel on the Northern Border.
Annual appropriation legislation ordinarily authorizes the number of work years
(“full time equivalents”) that an agency may devote to a particular mission. Section
401 authorizes the Attorney General to waive the limitation applicable to Immigration
and Naturalization Service (INS) personnel assigned to the Northern Border.
Section 402. Northern Border Personnel.
Section 402 authorizes appropriations in the amounts necessary to triple the
number of Border Patrol, Custom Service, and the Immigration and Naturalization
Service (INS) personnel in each state along the Northern Border of the United States.
It authorizes appropriations of an additional $50 million each for INS and the
Customs Service to improve and supplement their monitoring equipment at the
Northern Border.
Section 403. Access by the Department of State and the INS to Certain Identifying
Information in the Criminal History Records of Visa Applicants and Applicants for
Admission to the United States.
Section 403 authorizes the appropriations necessary to provide the State
Department and INS with access to the Federal Bureau of Investigation’s automated
National Criminal Information Files and to permit the National Institute of Standards
and Technology to development the standards necessary to accommodate the transfer
of information. All United States consular officers responsible for issuing visas,
border inspection officers, and law enforcement and intelligence officers with alien
investigation and identification responsibilities will use access to ensure that applicants
for entry into the United States have no criminal record here. The FBI will provide
access without charge except, at least initially, for fingerprint processing. The
Secretary of State will promulgate regulations to ensure the confidentiality and
appropriate use of the FBI information. The Attorney General and Secretary of State,
in consultation with the Secretary of the Treasury, must report within 18 months of
enactment and every two years thereafter on development, implementation, efficacy
and privacy implications of the process. Sections 405 and 1008, discussed below, call
for studies and reports to Congress on the feasibility of related enhancements in the
systems to which this section gives access.
Section 404. Limited Authority to Pay Overtime.
In more normal times, Justice Department appropriations legislation placed a
$30,000 cap on the amount of overtime that could paid individual INS officers. In
light of the extraordinary circumstances at the end of the last fiscal year, section 404
repeals the limitation contained in the INS appropriation for border services for fiscal
year 2001, 114 Stat. 2762-58 to 2762A-59 (2000).
Section 405. Report on the Integrated Automated Fingerprint Identification System
for Ports of Entry and Overseas Consular Posts.
Section 405 directs the Attorney General, after consultation with the Secretaries
of State, the Treasury, and Transportation, as well as other appropriate agency heads,
to study and report upon the feasibility of enhancing the FBI’s Integrated Automated
Fingerprint Identification System (IAFIS) and other identification systems in order to
better screen applications seeking to enter this country. The section authorizes
appropriations of $2 million to the purpose.
Subtitle B – Enhanced Immigration Provisions
Section 411. Definitions Relating to Terrorism.
Foreign nationals (aliens) are deportable from the United States if they were
inadmissible at the time they entered the country or if they have subsequently engaged
in terrorist activity, 8 U.S.C. 1227(a)(1)(A),(a)(4)(B), 1182(a)(3)(B)(iv). Aliens may
be inadmissible for any number of terrorism-related reasons, 8 U.S.C. 1182(a)(3)(B).
Section 411 adds to the terrorism-related grounds upon which an alien may be denied
admission into the United States.
Prior law recognized five categories of terrorism-related factors which rendered
an alien inadmissible. Section 411 redefines two of these, engaging in terrorist
activity and representing a terrorist organization, 8 U.S.C. 1182(a)(3)(B)(iv),
(a)(3)(B)(i)(IV), and it adds three more, espousing terrorist activity, being the spouse
or child of an inadmissible alien, associating with a terrorist organization and intending
to engage in activities that could endanger the welfare, safety or security of the United
States, 8 U.S.C. 1182(a)(3)(B)(i)(VI), (a)(3)(B)(i)(VII), 1182(a)(3)(F).
Earlier law defined engaging in terrorist activity, which is grounds for both
inadmissibility and deportation, to encompass soliciting on behalf of a terrorist
organization or providing material support to a terrorist organization, 8 U.S.C.
1182(a)(3)(B)(iii)(2000 ed.). It did not explain in so many words, however, what
constituted a “terrorist organization,” although it presumably at the very least
included groups designated a terrorist organizations under section 219 of the
Immigration and Nationality Act (8 U.S.C. 1189). Although only effective after
designation, §411(c), section 411 defines “terrorist organization” to include not only
organizations designated under section 219 but also organizations which the Secretary
has identified in the Federal Register as having provided material support for,
committed, incited, planned, or gathered information on potential targets of, terrorist
acts of violence, 8 U.S.C. 1182(a)(3)(B)(vi), (a)(3)(B)(iv). It then recasts the
definition of engaging in terrorist activities to include solicitation on behalf of such
organizations, or recruiting on their behalf, or providing them with material support,
8 U.S.C. 1182(a)(3)(B)(iv). Nevertheless, section 411 permits the Secretary of State
or Attorney General to conclude that the material support prohibition does not apply
to particular aliens, 8 U.S.C. 1182(a)(3)(B)(vi).
Prior law made representatives of terrorist organizations designated by the
Secretary under section 219 (8 U.S.C. 1189) inadmissible, 8 U.S.C. 1182(a)(3)(B)(i)
(IV)(2000 ed.). And so they remain. Section 411 makes representatives of political,
social or similar groups, whose public endorsements of terrorist activities undermines
our efforts to reduce or eliminate terrorism, inadmissible as well, 8 U.S.C. 1882(a)(3)
(B)(i)(IV).
An individual who uses his or her place of prominence to endorse, espouse, or
advocate support for terrorist activities or terrorist organizations in a manner which
the Secretary of State concludes undermines our efforts to reduce or eliminate
terrorism becomes inadmissible under section 411, 8 U.S.C. 1182(a)(3)(B)(i)(VI).
The spouse or child of an alien, who is inadmissible on terrorist grounds for
activity occurring within the last 5 years, is likewise inadmissible, unless the child or
spouse was reasonably unaware of the disqualify conduct or has repudiated the
disqualify conduct, 8 U.S.C. 1182(a)(3)(B)(i)(VII), 1182(a)(3)(B)(ii).
Finally, any alien, whom the Secretary of State or the Attorney General conclude
has associated with a terrorist organization and intends to engage in conduct
dangerous to the welfare, safety, security of the United States while in their country,
is inadmissible, 8 U.S.C. 1182(a)(3)(F).
Section 219 of the Immigration and Nationality Act (8 U.S.C. 1189) permits the
Secretary to designate as terrorist organizations any foreign group which he finds to
have engaged in terrorist activities. A second subsection 411(c) permits him to
designate groups which as subnational groups or clandestine agents, engage in
“premeditated, politically motivated violence perpetrated against noncombatant
targets,” or groups which retain the capacity and intent to engage in terrorism or
terrorist activity, 8 U.S.C. 1189(a)(1)(B).
Section 412. Mandatory Detention of Suspected Terrorists; Habeas Corpus; Judicial
Review.
Section 412 permits the Attorney General to detain alien terrorist suspects for
up to seven days, 8 U.S.C. 1226a. He must certify that he has reasonable grounds to
believe that the suspects either are engaged in conduct which threatens the national
security of the United States or are inadmissible or deportable on grounds of
terrorism, espionage, sabotage, or sedition. Within seven days, the Attorney General
must initiate removal or criminal proceedings or release the alien. If the alien is held,
the determination must be reexamined every six months to confirm that the alien’s
release would threaten national security or endanger some individual or the general
public. The Attorney General’s determinations are subject to review only under writs
of habeas corpus issued out of any federal district court but appealable only to the
United States Court of Appeals for the District Columbia. The Attorney General
must report to the Judiciary Committee on the details of the operation of section 412.
Uncertain is the relationship between section 412 and the President’s Military
Order of November 13, 2001, which allows the Secretary of Defense to detain
designated alien terrorist suspects, within the United States or elsewhere, without
express limitation or condition except with regard to food, water, shelter, clothing,
medical treatment, religious exercise, and a proscription on invidious discrimination,
Section 413. Multilateral Cooperation Against Terrorists.
State Department records concerning its processing of visa applications are
confidential and generally available only for court and law enforcement purposes, 8
U.S.C. 1202(f). Section 413 authorizes the Secretary of State to share the
information with other countries in order to combat terrorism, drug trafficking, gun
running, smuggling of immigrants, or other criminal activity, either on a case by case
basis or pursuant to a general agreement.
Section 414. Visa Integrity and Security.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8
U.S.C. 1365a, instructed the Attorney General to implement an integrated entry and
exit data system for airports, seaports and land border ports of entry. Section 414
expresses the sense of Congress that he should do so expeditiously and authorizes
such appropriations as are necessary.
The section also directs the Attorney General and the Secretary of State to focus
particularly on the use of biometric technology and tamper-resistant documents
readable at ports of entry and to see to the development of a system that can be used
by federal law enforcement officers to identify and detain individuals who pose a
threat to U.S. national security.
Finally, it calls for the Office of Home Land Security to report to the Congress
within a year of the enactment on the information needed for federal authorities to
identify those seeking to enter the United States who are associated with terrorists
organizations or otherwise pose a threat to our national security.
Section 415. Participation of Office of Homeland Security on Entry-Exit Task Force.
Section 415 adds the Office of Home Land Security to the Integrated Entry and
Exit Data System Task Force, 8 U.S.C. 1365a note.
Section 416. Foreign Student Monitoring Program.
Section 417 authorizes appropriations of $36.8 million for the period ending on
January 1, 2003 to implement and expand the program for collection of information
relating to nonimmigrant foreign students and other exchange program participants,
8 U.S.C. 1372. The section adds air flight schools, language training schools, and
vocations schools to the list of institutions whose students are to be included in the
reporting requirement.
Section 417. Machine Readable Passports.
Section 217 of the Immigration and Nationality Act permits a visa waiver
program with respect to foreign tourists from countries which among things issue
machine-readable passports that comply with international standards (or anticipate
being able to do so prior to October 1, 2003), 8 U.S.C. 1187(c). Section 417 directs
the Secretary of State to report the results of annual audits of the progress of program
countries towards full implementation of machine-readable passport capability, of the
existence of programs to prevent passport theft and counterfeiting, and of the
development of tamper-proof passports. Subject to a progress waiver by the
Secretary of State, the section limits the countries eligible for visa waiver program
participation to those who have machine-readable passports as of October 1, 2003
(rather than October 1, 2007 as was previously the case).
Section 418. Prevention of Consulate Shopping.
Section 418 commands the Secretary of State to determine whether consular
shopping is a problem, to take steps to remedy any such problem, and to report to
Congress on the action taken.
Subtitle C – Preservation of Immigration Benefits for
Victims of Terrorism
The House Committee on the Judiciary explained a similar subtitle by noting
that, “It is certain that some aliens fell victim to the terrorist attacks on the U.S. on
September 11. This subtitle endeavors to modify immigration law to provide
humanitarian relief to these victims and their family members,” H.Rept. 107-236, at
66. Since the subtitle in the USA PATRIOT Act is largely unchanged from the
subtitle reported out by the House Committee on the Judiciary, the analysis that
follows is largely that of the Committee.
Section 421. Special Immigration Status.
“The [USA PATRIOT] Act provides permanent resident status through the
special immigrant program to an alien who was the beneficiary of a petition filed (on
or before September 11) to grant the alien permanent residence as an
employer-sponsored immigrant or of an application for labor certification (filed on or
before September 11), if the petition or application was rendered null because of the
disability of the beneficiary or loss of employment of the beneficiary due to physical
damage to, or destruction of, the business of the petitioner or applicant as a direct
result of the terrorist attacks on September 11, or because of the death of the
petitioner or applicant as a direct result of the terrorist attacks. Permanent residence
would be granted to an alien who was the spouse or child of an alien who was the
beneficiary of a petition filed on or before September 11 to grant the beneficiary
permanent residence as a family-sponsored immigrant (as long as the spouse or child
follows to join not later than September 11, 2003). Permanent residence would be
granted to the beneficiary of a petition for a nonimmigrant visa as the spouse or the
fiancé (and their children) of a U.S. citizen where the petitioning citizen died as a
direct result of the terrorist attack. The section also provides permanent resident
status to the grandparents of a child both of whose parents died as a result of the
terrorist attacks, if either of such deceased parents was a citizen of the U.S. or a
permanent resident,” H.Rept. 107-236, at 66-7 (2001).
Section 422. Extension of Filing or Reentry Deadlines.
“The Act provides that an alien who was legally in a nonimmigrant status and
was disabled as a direct result of the terrorist attacks on September 11 (and his or her
spouse and children) may remain lawfully in the U.S. (and receive work authorization)
until the later of the date that his or her status normally terminates or September 11,
2002. Such status is also provided to the nonimmigrant spouse and children of an
alien who died as a direct result of the terrorist attacks.
Where an alien was prevented from taking timely action because of office
closures, airline schedule disruptions or other similar impediments, the “Act provides
that an alien who was lawfully present as a nonimmigrant at the time of the terrorist
attacks will be granted 60 additional days to file an application for extension or
change of status if the alien was prevented from so filing as a direct result of the
terrorist attacks. Also, an alien who was lawfully present as a nonimmigrant at the
time of the attacks but was then unable to timely depart the U.S. as a direct result of
the attacks will be considered to have departed legally if doing so before November
11. An alien who was in lawful nonimmigrant status at the time of the attacks (and his
or her spouse and children) but not in the U.S. at that time and was then prevented
from returning to the U.S. in order to file a timely application for an extension of
status as a direct result of the terrorist attacks will be given 60 additional days to file
an application and will have his or her status extended 60 days beyond the original due
date of the application.
“Under current law, winners of the fiscal year 2001 diversity visa lottery must
enter the U.S. or adjust status by September 30, 2001. The Act provides that such an
alien may enter the U.S. or adjust status until April 1, 2002, if the alien was prevented
from doing so by September 30, 2001 as a direct result of the terrorist attacks. If the
visa quota for the 2001 diversity visa program has already been exceeded, the alien
shall be counted under the 2002 program. Also, if a winner of the 2001 lottery died
as a direct result of the terrorist attacks, the spouse and children of the alien shall still
be eligible for permanent residence under the program. The ceiling placed on the
number of diversity immigrants shall not be exceeded in any case.
“Under the Act, in the case of an alien who was issued an immigrant visa that
expires before December 31, 2001, if the alien was unable to timely enter the U.S. as
a direct result of the terrorist attacks, the validity shall be extended until December
“Under the Act, in the case of an alien who was granted parole that expired on
or after September 11, if the alien was unable to enter the U.S. prior to the expiration
date as a direct result of the terrorist attacks, the parole is extended an additional 90
days.
“Under the Act, in the case of an alien granted voluntary departure that expired
between September 11 and October 11, 2001, voluntary departure is extended an
additional 30 days,” H.Rept. 107-236, at 67-8 (2001).
Section 423. Humanitarian Relief or Certain Surviving Spouses and Children.
“Current law provides that an alien who was the spouse of a U.S. citizen for at
least 2 years before the citizen died shall remain eligible for immigrant status as an
immediate relative. This also applies to the children of the alien. The Act provides that
if the citizen died as a direct result of the terrorist attacks, the 2 year requirement is
waived.
“The Act provides that if an alien spouse, child, or unmarried adult son or
daughter had been the beneficiary of an immigrant visa petition filed by a permanent
resident who died as a direct result of the terrorist attacks, the alien will still be
eligible for permanent residence. In addition, if an alien spouse, child, or unmarried
adult son or daughter of a permanent resident who died as a direct result of the
terrorist attacks was present in the U.S. on September 11 but had not yet been
petitioned for permanent residence, the alien can self-petition for permanent residence.
“The Act provides that an alien spouse or child of an alien who 1) died as a
direct result of the terrorist attacks and 2) was a permanent resident (petitioned-for
by an employer) or an applicant for adjustment of status for an employment-based
immigrant visa, may have his or her application for adjustment adjudicated despite the
death (if the application was filed prior to the death),” H.Rept. 107-236, at 68 (2001).
Section 424. “Age-out” Protection for Children.
“Under current law, certain visas are only available to an alien until the alien’s
21st birthday. The Act provides that an alien whose 21st birthday occurs this
September and who is a beneficiary for a petition or application filed on or before
September 11 shall be considered to remain a child for 90 days after the alien’s 21st
birthday. For an alien whose 21st birthday occurs after this September, (and who had
a petition for application filed on his or her behalf on or before September 11) the
alien shall be considered to remain a child for 45 days after the alien’s 21st birthday,”
H.Rept. 107-236, at 68 (2001).
Section 425. Temporary Administrative Relief.
“The Act provides that temporary administrative relief may be provided to an
alien who was lawfully present on September 10, was on that date the spouse, parent
or child of someone who died or was disabled as a direct result of the terrorist
attacks, and is not otherwise entitled to relief under any other provision of Subtitle
[C],” H.Rept. 107-236, at 68 (2001).
Section 426. Evidence of Death, Disability, or Loss of Employment.
“The Attorney General shall establish appropriate standards for evidence
demonstrating that a death, disability, or loss of employment due to physical damage
to, or destruction of, a business, occurred as a direct result of the terrorist attacks on
September 11. The Attorney General is not required to promulgate regulations prior
to implementing Subtitle [C],” H.Rept. 107-326, at 68-9 (2001).
Section 427. No Benefits to Terrorists or Family Members of Terrorists.
“No benefit under Subtitle B shall be provided to anyone culpable for the
terrorist attacks on September 11 or to any family member of such an individual,”
H.Rept. 107-236, at 69 (2001).
Section 428. Definitions.
“The term <specified terrorist activity’ means any terrorist activity conducted
against the Government or the people of the U.S. on September 11, 2001,” H.Rept.
Title V – Removing Obstacles to Investigating Terrorism
Section 501. Attorney General’s Authority to Pay Rewards to Combat Terrorism.
The Attorney General enjoys the power to pay rewards in criminal cases, but his
power under other authorities is often subject to caps on the amount he might pay.
Thus as a general rule, he may award amounts up to $25,000 for the capture of
federal offenders, 18 U.S.C. 3059, and may pay rewards in any amount in recognition
of assistance to the Department of Justices as long as the Appropriations and
Judiciary Committees are notified of any rewards in excess of $100,000, 18 U.S.C.
awards are capped at $500,000, (the ceiling for the total amount paid in such rewards
is $5 million), and rewards of $100,000 or more require his personal approval or that
of the President, 18 U.S.C. 3071-3077. Over the last several years, annual
appropriation acts have raised the $500,000 cap to $2 million and the $5 million
ceiling to $10 million, e.g., Public Law 106-553, 114 Stat. 2762-67 (2000); Public
Law 106-113, 113 Stat. 1501A-19 (1999); Public Law105-277, 112 Stat. 2681-66
(1998).
The USA PATRIOT Act supplies the Attorney General with the power to pay
rewards to combat terrorism in any amount and without an aggregate limitation, but
for rewards of $250,000 or more it insists on personal approval of the Attorney
General or the President and on notification of the Appropriations and Judiciary
Committees, §501. The funds to pay the rewards may come from any federal
department or agency. In addition, the counterterrorism fund of section 101 can be
used “without limitation” to pay rewards to prevent, investigate, or prosecute
terrorism.
Section 502. Secretary of State’s Authority to Pay Rewards.
The Secretary of State’s reward authority was already somewhat more generous
than that of the Attorney General. He may pay rewards of up to $5 million for
information in international terrorism cases as long as he personally approves
payments in excess of $100,000, 22 U.S.C. 2708. The Act removes the $5 million
cap and allows rewards to be paid for information concerning the whereabouts of
terrorist leaders and facilitating the dissolution of terrorist organizations, §502.
Section 503. DNA Identification of Terrorists and Other Violent Offenders.
Federal law allows the Attorney General to collect DNA samples from federal
prisoners convicted of a variety of violent crimes, 42 U.S.C. 14135a(d)(2). Section
503 expands the range. It permits samples to be taken from any federal prisoner
convicted of a federal crime of terrorism (as defined in 18 U.S.C. 2332b(g)(5)(B)),
or a crime of violence (as defined by 18 U.S.C. 16), or attempt or conspiracy to
commit a crime of terrorism or violence.
Section 504. Coordination With Law Enforcement.
Federal intelligence officers who wish to conduct electronic surveillance or
physical searches under a FISA court order must certify that the acquisition of foreign
intelligence information constitutes a significant purpose for the surveillance or
search, 50 U.S.C. 1805(a)(7)(B), 1823(a)(7)(B). Section 504 confirms that the
certification requirement does not preclude intelligence officers operating under FISA
orders from coordinating their investigations with law enforcement officers in cases
involving a foreign attack or other grave hostile attack, sabotage or international
terrorism by a foreign power or agent, or foreign clandestine intelligence activities.
Section 505. Miscellaneous National Security Authorities.
Three statutes, the Electronic Privacy Act, the Right to Financial Privacy Act,
and Fair Credit Reporting Act, authorize third parties to release confidential
communication transaction records, financial reports, and credit information for
intelligence purposes upon the written request of senior FBI officials. Prior to section
505, the FBI was required to assert that the information sought was related to a
foreign power, foreign agent, an international terrorist, or an individual engaged in
clandestine intelligence activities, 18 U.S.C. 2709(b)(2), 12 U.S.C. 3414(a)(5), 15
U.S.C. 1681u. In an explanation that applies to all three statutory provisions, the
House Committee on the Judiciary described the change made in the Electronic
Privacy Act section: “Section 2709 of title 18 permits the Director of the Federal
Bureau of Investigation to request, through a National Security Letter (NSL),
subscriber information and toll billing records of a wire or electronic communication
service provider. The request must certify (1) that the information sought is relevant
to an authorized foreign counterintelligence investigation; and (2) there are specific
and articulable facts that the person or entity to whom the information sought pertains
is a foreign power or an agent of a foreign power as defined in FISA. This
requirement is more burdensome than the corresponding criminal authorities, which
require only a certification of relevance. The additional requirement of documentation
of specific and articulable facts showing the person or entity is a foreign power or an
agent of a foreign power cause substantial delays in counterintelligence and
counterterrorism investigations. Such delays are unacceptable as our law enforcement
and intelligence community works to thwart additional terrorist attacks that threaten
the national security of the United States and her citizens’ lives and livelihoods.
“Section [505] amends title 18 U.S.C. 2709 to mirror criminal subpoenas and
allow a NSL to be issued when the FBI certifies, the information sought is <relevant
to an authorized foreign counterintelligence investigation,’” H.Rept. 107-236, at 61-2
(2001).
Section 506. Extension of Secret Service Jurisdiction.
The federal computer fraud and abuse section, 18 U.S.C. 1030, originally vested
the Secret Service with investigative jurisdiction over violations other than those
dealing with classified information under 18 U.S.C. 1030(a)(1). The Secret Service
also enjoyed investigative authority over offenses involving credit and debit card
frauds as well as offenses involving false identification documents or devices, 18
U.S.C.3056(b)(3)(2000 ed.).
Section 506 preserves the Service’s jurisdiction with respect to section 1030. It
explicitly notes the FBI’s investigative jurisdiction over offenses under paragraph
1030(a)(1) and the FBI’s concurrent jurisdiction over offenses under the remainder
of 18 U.S.C. 1030. The section amends paragraph 3056(b)(3) to enlarge the
Service’s jurisdiction from offenses involving “credit and debit card frauds, and false
identification documents and devices” to crimes involving “access device fraud, false
identification documents or devices, and any fraud or other criminal or unlawful
activity in or against any federally insured financial institution.”
Section 507. Disclosure of Educational Records.
Section 507 calls for an ex parte court order procedure under which senior
Justice Department officials may seek authorization to collect educational records
relevant to an investigation or prosecution of a crime of terrorism (as an exception to
the confidentiality requirements of the General Education Provisions Act, 20 U.S.C.
1232g). Educational institutions who comply receive immunity from liability for the
disclosure.
Section 508. Disclosure of Information From NCES Surveys.
Section 508 creates a similar ex parte court order procedure under which senior
Justice Department officials may seek authorization to collect individually identifiable
information from the National Center for Education (as an exception to the
confidentiality requirements of the National Education Statistics Act, 20 U.S.C.
9007). Officers and employees of the Center who cooperate receive immunity from
liability for the disclosure.
Title VI – Providing for Victims of Terrorism, Public Safety
Officers, and Their Families
Subtitle A – Aid to Families of Public Safety Officers
Section 611. Expedited Payment for Public Safety Officers Involved in the
Prevention, Investigation, Rescue, or Recovery Efforts Related to a Terrorist Attack.
Federal law authorizes benefits for those victimized by the death or catastrophic
injury resulting in permanent and total disability of a public safety officer in the line
of duty, subject to certain limitation, 42 U.S.C. 3796 et seq. Gross negligence,
substantial contributory negligence, and employment other than in a civilian capacity
are among the disqualifying factors, 42 U.S.C. 3796a, and there is a $5 million cap on
benefits awarded in any fiscal year, 42 U.S.C. 3796. In cases of death or catastrophic
injury sustained in the line of duty in relation to a terrorist attack, section 611 waives
the cap and these disqualifications and orders the Bureau of Justice Assistance, which
administers the program, to make payments within 30 days of receipt of a public
agency’s certification of eligibility in a particular case.
Section 612. Technical Correction With Respect to Expedited Payments for Heroic
Public Safety Officers.
Public Law 107-37, 115 Stat. 219 (2001), makes the same adjustments as those
of section 611 for death and catastrophic injuries sustained in the line of duty in the
course of rescue or recovery efforts related to the terrorist attacks of September 11.
Section 612 confirms certain technical corrections made by the clerk and that the
Public Law extends to death and catastrophic injuries producing permanent and total
disability.
Section 613. Public Safety Officers Benefit Program Payment Increases.
Section 613 raises the amount of the benefit from $100,000 to $250,000,
effective January 1, 2001, 42 U.S.C. 3796.
Section 614. Office of Justice Programs.
Title I of the Omnibus Crime Control and Safe Streets Act (Pubic Law 90-351),
as amended, creates the Office of Justice Programs (OJP) and a series of federal
criminal justice and related assistance programs administered under its auspices, 42
U.S.C. 3711 et seq. In 1998, while Congress was considering reauthorization of
some of those programs, it authorized the Office of Justice Programs to exercise
authority over and approve grants, contracts and the like with respect to it’s programs
during fiscal year 1999, Public Law 105-277, 112 Stat. 2681-67 (1998). The
following year, it renewed that authority for fiscal year 2000, but denied OJP
authority to approve grants under the National Institute of Justice, the Bureau of
Justice Statistics, and a few Juvenile Justice and Delinquency Prevention programs,
Public Law 106-113, 113 Stat. 1501A-20 (1999). The fiscal year 2001 appropriations
act carried forward by cross reference the same provisions with the same limitations,
Public Law 106-553, 114 Stat. 2762A-67 (2000).Section 614 removes the
limitations.
Subtitle B – Amendments to the Victims of Crime Act of
1984
Section 621. Crime Victims Fund.
The Crime Victims Fund receives most of the fines collected for violations of
federal criminal law and distributes them for purposes of victim assistance and
compensation, 42 U.S.C. 10601-10604. Section 621 authorizes the Fund to receive
gifts from private individuals. It instructs the Department of Justice, which
administers the Fund, to distribute every fiscal year between 90 and 110% of the
amount distributed in the previous year (120% in any year when the amount on hand
is twice the amount distributed the previous year).
Pre-existing law allocated 48.5% of the amounts available under the Fund to
crime victim compensation grants, 48.5% to crime victim assistance grants, and 3%
to discretionary grants, 42 U.S.C. 10601(d)(4)(2000 ed.). Section 621 reduces the
amounts available for compensation and assistance grants by 1% and increases to 5%
the amount available for discretionary grants.
The section allows the Department of Justice to establish a $50 million
antiterrorism emergency reserve for supplemental grants to compensate and assist
victims of terrorism or mass violence. It also removes the otherwise applicable caps
on the amounts transferred to the Fund in response to the terrorist acts of September
Section 622. Crime Victim Compensation.
Before passage of section 622, individual victim compensation program grants
were capped at 40% of the amount awarded in the previous year. Section 622 lifts
the cap to 60% beginning in fiscal year 2003.
It also (1) removes the requirement that an eligible state crime victim
compensation program provide compensation to state residents for terrorist crimes
committed overseas, 42 U.S.C. 10602(b)(6)(B); (2) drops crimes involving terrorism
from the definition of “compensable crimes,” 42 U.S.C. 10602(d)(3); (3) provides that
unlike other victim compensation, victim compensation received under Title IV of the
Air Transportation Safety and System Stabilization Act (September 11 Victim
Compensation Fund), Public Law 107-42, 115 Stat. 237, 49 U.S.C. 40101 note, may
be considered income, a resource, or an asset for purposes of qualifying as an indigent
for any federal or federal supported grant or benefit program, 42 U.S.C. 10602(c); (4)
adds Title IV victim compensation to the “double dipping” restriction that applies to
victim compensation programs, 42 U.S.C. 10602(e); and (5) allows the Virgin Islands
to participate as a state in the victim compensation grant program, 42 U.S.C.
Section 623. Crime Victim Assistance.
Section 623 expands the crime victim assistance grant program to permit grants
to federal agencies who perform local law enforcement functions in or on behalf of
the District of Columbia, the Virgin Islands, or any other U.S. territory or
possessions. It prohibits program discrimination against crime victims based on their
disagreement with the manner in which the state is prosecuting the underlying offense,
42 U.S.C.10603(b)(1)(F); allows grants to be used for program evaluation and
compliance efforts, 42 U.S.C. 10603(c)(1)(A); for fellowships, clinical internships,
and training programs, 42 U.S.C. 10603(c)(3)(E). Finally, it reverses the preference
for victim service grants over demonstration projects and training grants, so that not
more than 50% of the amounts available for crime victim assistance grants shall be
used for victim service grants and not less than 50% for demonstration projects and
training grants, 42 U.S.C. 10603(c)(2).
Section 624. Victims of Terrorism.
Title VIII of the Omnibus Diplomatic Security and Antiterrorism Act of 1986,
Public Law 99-399, 100 Stat. 879 (1986), provides victims’ benefits for the Iranian
hostages, 5 U.S.C. 5569. The Antiterrorism and Effective Death Penalty Act, Public
Law 104-132, 110 Stat. 1243, 42 U.S.C. 10603b, and the Victims of Trafficking and
Violence Protection Act of 2000, Public Law 106-386, 114 Stat. 1545, 42 U.S.C.
10603c, establish compensation programs for victims of terrorism or mass destruction
and victims of international terrorism respectively.
Prior to the enactment of section 624 only the states were eligible for
compensation and assistance grants on behalf of the victims of terrorism or mass
destruction occurring within the United States, and victims eligible for benefits under
the diplomatic security law were ineligible for compensation and assistance under the
general provisions covering victims of terrorism or mass destruction occurring
abroad, 42 U.S.C. 10603b(2000 ed.). Section 624 removes the diplomatic security
law disqualification and permits grants to victim service organizations – federal, state,
local and nongovernmental agencies – to provide emergency victim relief, 42 U.S.C.
Further, the section reduces the amount of compensation available to victims of
international terrorism generally by any amount a victim has received under the
diplomatic security law, 42 U.S.C. 10603c.
Title VII – Increased Information Sharing for Critical
Infrastructure Protection
Section 701. Expansion of Regional Information Sharing Systems to Facilitate
Federal-State-Local Law Enforcement Response Related to Terrorist Attacks.
The Office of Justice Programs is authorized to make grants and enter into
contracts with state and local law enforcement agencies and with nonprofit
organizations to identify and combat multi-jurisdictional criminal conspiracies, 42
U.S.C. 3796h. Section 701 amends section 3796h to authorize appropriations of $50
million for fiscal year 2002 and $100 million for fiscal year 2003 to be used to
establish and operate a secure information sharing system to combat multi-
jurisdictional terrorist conspiracies and activities.
Title VIII – Strengthening the Criminal Laws Against
Terrorism
Section 801. Terrorist Attacks and Other Acts of Violence Against Mass
Transportation Systems.
Pre-existing federal law criminalized, among other things, wrecking trains, 18
U.S.C. 1992; damaging commercial motor vehicles or their facilities, 18 U.S.C. 33,
or threatening to do so, 18 U.S.C. 35; destroying vessels within the navigable waters
of the United States, 18 U.S.C. 2273; destruction of vehicles or other property used
in activities affecting interstate or foreign commerce by fire or explosives, 18 U.S.C.
844(i); possession of a biological agent or toxin as a weapon or a threat, attempt, or
conspiracy to do so, 18 U.S.C. 175; use of a weapon of mass destruction affecting
interstate or foreign commerce or a threat, attempt, or conspiracy to do so, 18 U.S.C.
2332a; commission of a federal crime of violence while armed with a firearm, or of
federal felony while in possession an explosive, 18 U.S.C. 924(c), 844(h); and
conspiracy to commit a federal crime, 18 U.S.C. 371.
Section 801 fills in some of the gaps in these proscriptions. It makes terrorist
attacks and other acts of violence against mass transportation systems federal crimes,
punishable by imprisonment for any term of years or life if the conveyance is occupied
at the time of the offense, and imprisonment for not more than twenty years in other
cases. Under its provisions, it is a crime to willfully
- wreck, derail, burn, or disable mass transit;
- place a biological agent or destructive device on mass transit recklessly or with
the intent to endanger;
- burn or place a biological agent or destructive device in or near a mass transit
facility knowing a conveyance is likely to be disabled;
- impair a mass transit signal system;
- interfere with a mass transit dispatcher, operator, or maintenance personnel in
the performance of their duties recklessly or with the intent to endanger;
- act with the intent to kill or seriously injure someone on mass transit property;
- convey a false alarm concerning violations of the section;
- attempt to violate the section;
- threaten or conspire to violate the section
when the violation involves interstate travel, communication, or transportation of
materials or that involves a carrier engaged in or affecting interstate or foreign
commerce, 18 U.S.C. 1993.
Section 802. Definition of Domestic Terrorism.
Section 802 adjusts the definition of international terrorism in 18 U.S.C. 2331
and borrows from it to define domestic terrorism. Section 2331 has for some time
defined international terrorism as those criminal acts of violence, committed primarily
overseas or internationally, that appear to be intended to intimidate or coerce a
civilian population, or to influence a governmental policy by intimidation or coercion,
or to affect the conduct of a government by assassination or kidnaping, 18 U.S.C.
2331(1). Section 802 simply modifies this last element to include acts that appear to
be intended to affect the conduct of a government by mass destruction, assassination
or kidnaping.
It defines domestic terrorism as those criminal acts dangerous to human life,
committed primarily within the United States, that appear to be intended to intimidate
or coerce a civilian population, or to influence a governmental policy by intimidation
or coercion, or to affect the conduct of a government by mass destruction,
assassination or kidnaping, 18 U.S.C. 2331(5).
Section 803. Prohibition Against Harboring Terrorists.
It is a federal crime to harbor aliens, 8 U.S.C. 1324, or those engaged in
espionage, 18 U.S.C. 792, or to commit misprision of a felony (which may take the
form of harboring the felon), 18 U.S.C. 4, or to act as an accessory after the fact to
a federal crime (including by harboring the offender), 18 U.S.C. 3. The Justice
Department asked that a terrorist harboring offense be added to the espionage section,
and that it be given extraterritorial effect and venue flexibility.
Section 803 instead establishes a separate offense which punishes harboring
terrorists by imprisonment for not more than ten years and/or a fine of not more than
$250,000, 18 U.S.C. 2339. The predicate offense list consists of:
! destruction of aircraft or their facilities, 18 U.S.C. 32;
! biological weapons offenses, 18 U.S.C. 175;
! chemical weapons offenses, 18 U.S.C. 229;
! nuclear weapons offenses, 18 U.S.C. 831;
! bombing federal buildings, 18 U.S.C. 844(f);
! destruction of an energy facility, 18 U.S.C. 1366;
! violence committed against maritime navigational facilities, 18 U.S.C.
! offenses involving weapons of mass destruction, 18 U.S.C. 2232a;
! international terrorism, 18 U.S.C. 2232b;
! sabotage of a nuclear facility, 42 U.S.C. 2284;
! air piracy, 49 U.S.C. 46502.
It permits prosecution either at the place the harboring occurred or where the
underlying act of terrorism committed by the sheltered terrorist might be prosecuted.
In order to enjoy the full benefits of section 803, the prosecution may have to
establish a nexus between the act of terrorism and the site of concealment, U.S.Const.
Art.III, §2, cl.3; Amend. IV; United States v. Cabrales, 524 U.S. 1 (1998). On the
other hand, if the acts of terrorism occur in the United States or over which the
United States has jurisdiction, the crime of harboring the terrorist even overseas can
be prosecuted in the United States in all likelihood without amending existing law, cf.,
United States v. Felix-Gutierrez, 940 F.2d 1200, 1205 (9th Cir. 1991)(“crime of
accessory after the fact gives rise to extraterritorial jurisdiction to the same extent as
the underlying offense”).
Section 804. Jurisdiction Over Crimes Committed at U.S. Facilities Abroad.
Crime is usually outlawed, prosecuted and punished where it is committed. In
the case of the United States, this a matter of practical and diplomatic preference
rather than constitutional necessity. Consequently, a surprising number of federal
criminal laws have extraterritorial application. In some instances, the statute
proscribing the misconduct expressly permits the exercise of extraterritorial
jurisdiction, e.g., 18 U.S.C. 2332a (relating to use of weapons of mass destruction by
an American overseas). In others, such as those banning assassination of Members
of Congress, 18 U.S.C. 351, or the attempted murder of federal law enforcement
officers, 18 U.S.C. 1114, the court will assume Congress intended the prohibitions to
have extraterritorial reach.10
Section 804 touches upon extraterritoriality only to a limited extent and in
somewhat unusual manner. The special maritime and territorial jurisdiction of the
United States represent two variations of the extraterritorial jurisdiction. Congress
has made most common law crimes – murder, sexual abuse, kidnaping, assault,
robbery, theft and the like – federal crimes when committed within the special
maritime and territorial jurisdiction of the United States.
The special maritime jurisdiction of the United States extends to the vessels of
the United States. Historically, the territorial jurisdiction of the United States was
thought to reach those areas over which Congress enjoyed state-like legislative
10 United Stats v. Layton, 855 F.2d 1388 (9th Cir. 1981); United States v. Benitez, 741 F.2d
jurisdiction. For some time, those territories were located exclusively within the
confines of the United States, but over the years came to include at least temporarily,
Hawaii, the Philippines, and other American overseas territories and possessions.
Recently, the lower federal courts have become divided over the question of whether
laws enacted to apply within federal enclaves within the United States and American
territories overseas might also apply to areas overseas over which the United States
has proprietary control, compare, United States v. Gatlin, 216 F.3d 207 (2d Cir.
2000); United States v. Laden, 92 F.Supp.2d 189 (S.D.N.Y. 2000); with, United
States v. Corey, 232 F.3d 1166 (9th Cir. 2000); United States v. Erdos, 474 F.2d 157
(4th Cir. 1973). The section resolves the conflict by declaring within the territorial
jurisdiction of the United States includes those overseas areas used by American
governmental entities for their activities or residences for their personnel, at least to
the extent that crimes are committed by or against an American. It is intended as a
residual provision and therefore does not apply where it would conflict with a treaty
obligation or where the offender is covered by the Military Extraterritorial Jurisdiction
Act (18 U.S.C. 3261).
Section 805. Material Support of Terrorism.
Sections 2339A and 2339B of title 18 of the United States Code ban providing
material support to individuals and to organizations that commit various crimes of
terrorism. Section 804 amends the sections in several ways, some at the behest of the
Justice Department. Section 2339B (support of a terrorist organization) joins section
grows to include:
! chemical weapons offenses, 18 U.S.C. 229;
! terrorist attacks on mass transportation, 18 U.S.C. 1993 ;
! sabotage of a nuclear facility, 42 U.S.C. 2284; and
! sabotage of interstate pipelines, 49 U.S.C. 60123(b).
Section 805 also adds expert advice or assistance of the types of assistance that
may not be provided under section 2339A. Prosecutions grounded on providing
material assistance in the form of expert advice may encounter the same First
Amendment vagueness problems some courts have found in assistance which takes
the form of “training”and “personnel,” Humanitarian Law Project v. Reno, 205 F.3d
Finally, the section declares that a prosecution for violation of section 2339A
(support of terrorists) may be brought where the support is provided or where the
predicate act of terrorism occurs. The full benefit of this amendment may have to
await clarification in the law concerning venue, U.S.Const. Art.III, §2, cl.3; Amend.
IV; United States v. Cabrales, 524 U.S. 1 (1998).
Section 806. Assets of Foreign Terrorist Organizations.
Modern forfeiture law strips criminals of the proceeds and instruments of crime.
Terrorism, however, neither produces profits of drug dealing nor requires the
specialized equipment of the rum runner or the counterfeiter. Consequently, most
forfeiture statutes do not reach the crimes of terrorism. Nevertheless terrorism,
particularly international terrorism, requires financing; cash is the essential
instrumentality of terrorism. The USA PATRIOT Act attacks terrorism at its most
vulnerable spot, its need for financial support. The Act’s invigorating of the
International Economic Emergency Powers Act asset forfeiture and its money
laundering measures are calculated to encumber and prevent terrorism by drying up
its sources of financial support.
Section 806 supplies another tool for that effort. It subjects to civil forfeiture
property wherever located: (1) which belongs to an individual or entity planning or
engaging in domestic or international terrorism against the United States (as defined
in 18 U.S.C. 2331) or which affords the individual a source of influence over a
terrorist organization; (2) which is acquired or maintained for use in furtherance of
acts of domestic or international terrorism committed against Americans; or (3) which
is derived from or is useful for the commission of acts of domestic or international
terrorism committed against the Americans, 18 U.S.C. 981(a)(1)(G). The section is
something of a rarity in that it creates a forfeiture of estate (confiscation based solely
on the property’s relation to an offender rather than to the offense; discussed earlier
with respect to section 106), traditionally thought to be at odds with the concept of
civil in rem forfeiture and with the bans on corruption of the blood, U.S.Const.
Art.III, §3, cl.2; Amend.V; United States v. Grande, 620 F.2d 1026 (4th Cir. 1980).
Section 807. Technical Clarification Relating to Provision of Material Support to
Terrorism.
The Trade Sanctions Reform and Export Enhancement Act of 2000, Title IX of
Public Law 106-387, 114 Stat. 1549A-69, limits the power of the President to
unilaterally impose export restrictions on agricultural and medical products, subject
to certain exceptions. Section 807 builds on the pronouncement of section 221(b)(2)
to confirm that the trade sanctions bill should not be construed to limit or otherwise
amend the prohibitions on providing material support to terrorist or terrorist
organizations found in 18 U.S.C. 2339A and 2339B.
Section 808. Definition of Federal Crime of Terrorism.
Paragraph 2332b(g)(5)(b) lists a number of violent federal crimes within its
definition of “federal crime[s] of terrorism” for purposes of the section’s prohibition
on acts of terrorism transcending national boundaries. Section 808 amends the
definition for consistency with its use in various other sections of the USA PATRIOT
Act. The Section drops a number of less serious crimes from the definition, such as
simple assault (18 U.S.C. 351(e)), bomb scares (18 U.S.C. 844(e)), and malicious
mischief (18 U.S.C. 1361), after reaffirming that the omitted offenses remain within
the investigative jurisdiction of the Department of Justice. It places several more
serious crimes within the definition, crimes like biological weapons offenses (18
U.S.C. 175b), cybercrime (18 U.S.C. 1030), terrorists attacks on mass transit (18
U.S.C. 1993), and various violent crimes committed aboard aircraft within U.S.
jurisdiction (49 U.S.C. 46504, 46505(b)(3),(c), 46505).
Section 809. No Statute of Limitations for Certain Terrorism Offenses.
Prosecution for murder may be initiated at any time; there is no statute of
limitations, 18 U.S.C. 3281. With a few exceptions, there is a five year statute of
limitations on the prosecution of other federal crimes. Among the relevant exceptions
before the USA PATRIOT Act was enacted, were an eight year statute of limitations
for several terrorist offenses, 18 U.S.C. 3286,11 and a ten year statute of limitations
for arson in federal enclaves and explosives offenses involving federal property,
property used in an activity affecting interstate commerce, and use of an explosive
during the commission of a federal offense, 18 U.S.C. 3295. The Administration
recommended the elimination of a statute of limitations in terrorism cases.
Section 809 takes a less dramatic approach. It eliminates the statute of
limitations for any federal crime of terrorism (as defined by 18 U.S.C.
2332b(g)(5)(B), with the amendments of §808) that risks or results in a death or
serious bodily injury, 18 U.S.C. 3286. In the absence of such a risk or result, all other
terrorism offenses become subject to the eight year statute of limitations unless
already covered by the ten year statute for explosives and arson offenses, 18 U.S.C.
Section 810. Alternative Maximum Penalties for Terrorism Offenses.
The Justice Department suggested an alternative term of imprisonment up to life
imprisonment for anyone convicted of an offense designated a terrorist crime. It
described the proposal as analogous to standard fine provisions of 18 U.S.C.
3571(b),(c), which in 1984 established a basic fine of $250,000 for any individual who
committed a federal felony, notwithstanding the lower maximum fine described in the
statute that outlawed the offense.
The proposal, however, failed to identify the critical elements that would trigger
the alternative. Both practical and constitutional challenges might be thought to
attend this failure to distinguish between those convicted of some “garden variety”
crime of terrorism and the more serious offender meriting the alternative,
supplementary penalty. Section 810 instead opts to simply increase the maximum
penalties for various crimes of terrorism, particularly those which involve the taking
of a human life and are not already capital offenses. It increases the maximum terms
of imprisonment:
11 18 U.S.C. 32 (destruction of aircraft or aircraft facilities), 37 (violence at international
airports), 112 (assaults on foreign dignitaries), 351 (crimes of violence against Members of
Congress), 1116 (killing foreign dignitaries), 1203 (hostage taking), 1361 (destruction of
federal property), 1751 (crimes of violence against the President), 2280 (violence against
maritime navigation), 2281 (violence on maritime platforms), 2332 (terrorist violence against
Americans overseas), 2332a (use of weapons of mass destruction), 2332b (acts of terrorism
transcending national boundaries), 2340A (torture); 49 U.S.C. 46502 (air piracy), 46504
(interference with a flight crew), 46505 (carrying a weapon aboard an aircraft), and 46506
(assault, theft, robbery, sexual abuse, murder, manslaughter or attempted murder or
manslaughter in the special aircraft jurisdiction of the United States).
! for life-threatening arson or arson of a dwelling committed within a federal
enclave, from 20 years to any term of years or life, 18 U.S.C. 81;
! for causing more than $100,000 in damage to, or significantly impairing the
operation of an energy facility, from 10 to 20 years (or any term of years or
life, if death results), 18 U.S.C. 1366;
! for providing material support to a terrorist or a terrorist organization, from
! for destruction of national defense materials, from 10 to 20 years (or any
term of years or life, if death results), 18 U.S.C. 2155;
! for sabotage of a nuclear facility, from 10 to 20 years (or any term of years
or life, if death results), 42 U.S.C. 2284;
! for carrying a weapon or explosive aboard an aircraft within U.S. special
aircraft jurisdiction, from 15 to 20 years (or any term of years or life, if death
results), 49 U.S.C. 46505; and
! for sabotage of interstate gas pipeline facilities, from 15 to 20 years (or any
term of years or life, if death results), 49 U.S.C. 60123.
Section 811. Penalties for Terrorist Conspiracies.
It is a separate federal offense punishable by imprisonment for not more than five
years to conspire to commit any federal felony, 18 U.S.C. 371. Coconspirators are
likewise subject to punishment for the underlying offense and for any other crimes
committed in furtherance of the conspiracy. Nevertheless, some federal criminal
statutes impose the same penalties for both the crimes they proscribe and for
conspiracy to commit. Again, section 811, opts for a less sweeping approach than the
Administration had proposed. It establishes equivalent sanctions for conspiracy and
the underlying offense in cases of:
! arson committed within a federal enclave, 18 U.S.C. 81;
! killing committed while armed with a firearm in a federal building, 18
U.S.C. 930(c);
! destruction of communications facilities, 18 U.S.C. 1362;
! destruction of property within a federal enclave, 18 U.S.C. 1363;
! causing a train wreck, 18 U.S.C. 1922;
! providing material support to a terrorist, 18 U.S.C. 2339A;
! torture committed overseas under color of law, 18 U.S.C. 2340A;
! sabotage of a nuclear facility, 42 U.S.C. 2284;
! interfering with a flight crew within U.S. special aircraft jurisdiction, 49
U.S.C. 46504;
! carrying a weapon or explosive abroad an aircraft with U.S. special aircraft
jurisdiction, 49 U.S.C. 46505; and
! sabotage of interstate gas pipeline facilities, 49 U.S.C. 60123.
Section 812. Post-Release Supervision of Terrorists.
When federal courts impose a sentence of a year or more upon a convicted
defendant, they must also impose a term of supervised release, 18 U.S.C. 3583;
U.S.S.G. §5D1.1. Supervised release is not unlike parole, except that it is ordinarily
imposed in addition to rather than in lieu of a term, or portion of a term, of
imprisonment. The term may be no longer than 5 years for most crimes and violations
of the conditions of release may result in imprisonment for up to an additional 5 years,
18 U.S.C. 3583(e). There were proposals to create a maximum supervisory term of
life for those convicted of acts of terrorism (subject to the calibrations of the
Sentencing Commission). Section 812 amends section 3583 to provide for a
supervisory release term of life or any term of years following conviction for a federal
crime of terrorism as defined in 18 U.S.C. 2332b which resulted in death or involved
a foreseeable risk of death or serious bodily injury, 18 U.S.C. 3583(j).
Section 813. Inclusion of Acts of Terrorism as Racketeering Activity.
Section 813 accepts the Administration’s recommendation that all federal crimes
of terrorism be included on the predicate offense list for RICO (racketeer influenced
and corrupt organizations) which proscribes acquiring or operating, through the
patterned commission of any of a series of predicate offenses, an enterprise whose
activities affect interstate or foreign commerce, 18 U.S.C. 1961.
Section 814. Deterrence and Prevention of Cyberterrorism.
Computer fraud and abuse is a federal crime when it involves a federally
protected computer, i.e., a federal computer, a computer used by financial institutions,
or a computer used in interstate or foreign commerce, 18 U.S.C. 1030. Section 814
increases the penalty for intentionally damaging a protected computer from
imprisonment for not more than 5 years to imprisonment for not more than 10 years.
It also raises the penalty for either intentionally or recklessly damaging a protected
computer after having previously been convicted of computer abuse from
imprisonment for not more than 10 years to imprisonment for not more than 20 years.
In order to trigger criminal or civil liability for causing damage to a federally
protected computer, the damage must fall into one of several categories. It must
involve losses of $5000 or more, or adversely affect certain medical data, or cause a
physical injury, or threaten public health or safety. Section 814 supplies a fifth
category – damage affecting a computer system used by or for the government for the
administration of justice, national defense, or national security.
Section 814 supplies an explicit definition for the kinds of losses that may be
considered in order to determine whether the $5000 threshold has been met. They
consist of any reasonable cost including but not limited to those incurred to take
corrective action, make damage assessments, and effect recuperation, as well as the
consequential costs of interrupted service.
Section 815. Additional Defense to Civil Actions Relating to Preserving Records in
Response to Government Requests.
Section 2707(e) of title 18 of the United States Code affords communications
service providers with a good faith defense to civil or criminal liability for their
cooperation in response to a warrant, subpoena or court order. Section 2703(f)
requires them to return over records and other evidence at government request.
Section 815 extends the good faith defense of section 2707(e) to cover civil and
criminal liability for service provider cooperation with a request under section
Section 816. Development and Support of Cybersecurity Forensic Capabilities.
Section 816 authorizes annual appropriations of $50 million to establish regional
computer forensic laboratories.
Section 817. Expansion of the Biological Weapons Statute.
Prior to enactment of the USA PATRIOT Act, federal law proscribed the use
of biological agents or toxins as weapons, 18 U.S.C. 175. Section 817 supplements
existing law with two federal crimes. First, it outlaws possession of a type or quantity
of biological agents or toxins that cannot be justified for peaceful purposes, 18 U.S.C.
18 U.S.C. 922(g), and explosives, 18 U.S.C. 842(i), it makes it a federal offense for
certain individuals – convicted felons, illegal aliens, and fugitives and the like – to
possess biological toxins or agents, 18 U.S.C. 175b. Both offenses are punishable by
imprisonment for not more than ten years and/or a fine of not more than $250,000.
Title IX – Improved Intelligence
Section 901. Responsibilities of Director of Central Intelligence Regarding Foreign
Intelligence Collected Under Foreign Intelligence Surveillance Act of 1978.
Only the President or the Attorney General may authorize application for a FISA
surveillance or physical search order, 50 U.S.C. 1802, 1804, 1822, 1823. Information
acquired by means of a FISA order may be shared with other federal officials,
including members of the intelligence community, as long as minimization procedures
are observed, 50 U.S.C. 1806, 1825. FISA minimization procedures are crafted
“consistent with the need of the United States to obtain, produce, and disseminate
foreign intelligence information,” 50 U.S.C. 1801(h), 1821(4).
Section 901 amends the National Security Act of 1947, 50 U.S.C. 403-3(c),12
instructing the Director of the Central Intelligence to establish priorities and
requirements concerning the use of the Foreign Intelligence Surveillance Act (FISA)
and to assist the Attorney General to ensure that information generated by the
12 The Director of Central Intelligence is simultaneously Director of the Central Intelligence
Agency (CIA), the President’s principal advisor on national security intelligence matters, and
coordinating head of the intelligence community, 50 U.S.C. 403(a).
execution of FISA surveillance and physical search orders is disseminated so as to be
used efficiently and effectively for foreign intelligence purposes. The intelligence
community, however, must work through the good offices of the Attorney General
to use FISA orders in the performance of its responsibilities, since in the absence of
specific statutory or executive order authority, the Director is not permitted to direct,
manage, or undertake execution of a FISA order.
Section 902. Inclusion of International Terrorist Activities Within the Scope of
Foreign Intelligence Under the National Security Act of 1947.
Section 3 of the National Security Act defines the kind of information that
constitutes “foreign intelligence” for purposes of the Act, 50 U.S.C. 5401a(2).
Section 902 adds information relating to the activities of international terrorists to the
definition.
Section 903. Sense of Congress on the Establishment and Maintenance of
Intelligence Relationships to Acquire Information on Terrorists and Terrorist
Organizations.
Section 903 expresses the sense of Congress that members of the intelligence
community should be outgoing in their efforts to acquire information about terrorists
and terrorist organizations.
Section 904. Temporary Authority to Defer Submittal to Congress of Reports on
Intelligence and Intelligence-Related Matters.
Section 904 permits intelligence community agencies to defer submission of
required intelligence reports to Congress (other than the reports on covert actions
required under 50 U.S.C. 413a, 413b) until February 1, 2002. They may delay
submission further, if compliance would impede counterintelligence activities.
Section 905. Disclosure to Director of Central Intelligence of Foreign Intelligence-
Related Information With Respect to Criminal Investigations.
The Attorney General in consultation with the Director of Central Intelligence
has been directed in section 905 to develop guidelines to ensure the dissemination to
the intelligence community of foreign intelligence information unearthed during the
course of a criminal investigation. The guidelines may embody exceptions necessary
to prevent jeopardizing an ongoing criminal investigation or other significant law
enforcement interests. They should contain a means for reporting back to the
intelligence community on the action taken or to be taken on the basis of information
which elements of the intelligence community have passed to the Justice Department.
Section 906. Foreign Terrorist Asset Tracking Center.
Following the attacks of September 11, the Treasury Department announced the
creation of an inter-agency foreign terrorist asset tracking center, which reportedly
consists of agents from the Customs Service, Office of Foreign Asset Control
(OFAC), Internal Revenue Service, FBI, and CIA.
Section 906 asks for a joint report from the Secretary of the Treasury, the
Attorney General, and the Director of Central Intelligence on the feasibility of
reconfiguring the Center and OFAC into an entity able to analyze the financial
capabilities and resources of international terrorists organizations, on the extent to
which the Financial Crimes Enforcement Center (FinCEN) should be included, and
on a legislative proposal detailing the specifics of any such entity found whose
creation they find feasible and desirable.
Section 907. National Virtual Translation Center.
Section 907 instructs the Director of Central Intelligence, in consultation with
the Director of the FBI to report on the establishment of a national virtual translation
center for the purpose providing timely and accurate translations of foreign
intelligence.
Section 908. Training of Government Officials Regarding Identification and Use of
Foreign Intelligence.
Section 908 authorizes the necessary appropriations to train federal officials who
do not ordinarily deal with foreign intelligence matters and state and local government
officials who may encounter foreign intelligence in the course of a terrorist attack.
The training would assist the officials to identify and use foreign intelligence
information in the performance of their duties.
Title X – Miscellaneous
Section 1001. Review of the Department of Justice.
As the House Judiciary Committee, from which this proposal first emerged,
explained, “In the wake of several significant incidents of security lapses and breach
of regulations, there has arisen the need for independent oversight of the Federal
Bureau of Investigation. Oversight of the Federal Bureau of Investigation is currently
under the jurisdiction of the Department of Justice Office of Professional
Responsibility. This section directs the Inspector General of the Department of Justice
to appoint a Deputy Inspector General for Civil Rights, Civil Liberties, and the
Federal Bureau of Investigation who shall be responsible for supervising independent
oversight of the FBI until September 30, 2004. This section also directs the Deputy
Inspector to review all information alleging abuses of civil rights, civil liberties, and
racial and ethnic profiling by employees of the Department of Justice, which could
include allegations of inappropriate profiling at the border,” H.Rept. 107-236, at 78.
(2001).
Section 1002. Sense of Congress.
Section 1002 expresses the sense of Congress that the rights of all Americans
include those of Sikh-Americans should be protected in the quest to apprehend those
responsible for the attacks of September 11; that violence or discrimination against
any Americans including Sikh-Americans should be condemned; law enforcement
authorities should work to prevent all Americans including Sikh-Americans from
becoming crime victims; and that federal authorities should prosecute those
responsible to the fullest extent of the law.
Section 1003. Definition of “Electronic Surveillance”.
The Foreign Intelligence Surveillance Act (FISA) allows federal authorities to
conduct “electronic surveillance” under certain limited foreign intelligence gathering
purposes. Section 217 allows federal law enforcement officers to intercept the
communications of computer trespassers within the system in which they are
intruders, 18 U.S.C. 2511(2)(i). Section 1003 amends FISA to make it clear that the
computer trespasser exception does not apply to FISA surveillance orders. FISA
surveillance orders may be issued to acquire the communications of a computer
trespasser, 50 U.S.C. 1801(f)(2).
Section 1004. Venue in Money Laundering Cases.
The Constitution provides that, the “Trial of all Crimes . . . shall be held in the
State where the said Crimes shall have been committed; but when not committed
within any State, the Trial shall be at such Place or Places as the Congress may by
Law have directed,” U.S.Const. Art.III, §2, 3, and that “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law,” U.S.Const. Amend. VI. When a crime
begins in one district and continues on to another, trial may be constitutionally held
in either district, United States v. Anderson, 328 U.S. 699, 704-5 (1946). Thus, the
federal crime of conspiracy, which consists of the agreement to commit a federal
crime plus an overt act committed in furtherance of the conspiracy, may be tried
wherever the agreement occurred or wherever an overt act in its furtherance was
committed, Hyde v. United States, 225 U.S. 347, 363 (1912).
This doctrine of continuing offenses, however, is not boundless. In United
States v. Cabrales, 524 U.S. 1 (1998), a unanimous Supreme Court held that a charge
of laundering of the proceeds of a Missouri drug trafficking operation in Florida could
not tried in Missouri. In the course of its opinion, the Court observed, that “[m]oney
laundering. . . arguably might rank as a continuing offense, triable in more that one
place, if the launderer acquired the funds in one district and transported them into
another,” 524 U.S. at 8.
Section 1004 relies on this language when it permits a prosecution for money
laundering in violation of either 18 U.S.C. 1956 or 1957 in the place where the
predicate offense occurred “if the defendant participated in the transfer of the
proceeds” of the predicate offense from the district in which the predicate offense
occurred into the district in which the laundering occurred, 18 U.S.C. 1956(i)(1). The
section also permits prosecution where an overt act in furtherance of conspiracy to
violation the money laundering sections occurs, 18 U.S.C. 1956(i)(2).
Section 1005. First Responders Assistance Act.
Section 1005 authorizes appropriations of $25 million for each fiscal year from
governments for terrorism prevention and antiterrorism training of fire fighters and
other first responders. Each state from which a qualified grant application is
submitted is entitled to no less than 0.5% of the total amount appropriated under
section 1005 for that year.
Section 1006. Inadmissibility of Aliens Engaged in Money Laundering.
Section 1006 makes aliens who have participated in money laundering
inadmissible for admission into the United States. The Secretary of State is instructed
to maintain a watchlist to be consulted to ensure that aliens involved in money
laundering are not allowed to enter this country.
Section 1007. Authorization of Funds for DEA Police Training in South and Central
Asia.
The Taliban and al Qaeda reportedly fund their activities in part by trafficking in
heroin. The material used to process the heroin flow into Afghanistan from South and
Central Asia and the processed heroin is transported into world commerce through
Turkey. Section 1007 authorizes appropriations of $5 million for Drug Enforcement
Administration training for the police of Turkey and of the countries of South and
Central Asia in order to disrupt heroin production in Afghanistan.
Section 1008. Feasibility Study on Use of Biometric Identifier Scanning System With
Access to the FBI Integrated Automated Fingerprint Identification System at
Overseas Consular Posts and Points of Entry to the United States.
“Section 1008 requires the Attorney General to conduct a study of the feasibility
of utilizing a biometric identifier (fingerprint) scanning system at consular offices and
points of entry into the United States to identify aliens who may be wanted in
connection with criminal or terrorist investigations in the United States or abroad. A
biometric fingerprint scanning system is a sophisticated computer scanning technology
that analyzes a person’s fingerprint and compares the measurement with a verified
sample digitally stored in the system. The accuracy of these systems is claimed to be
above 99.9%. The biometric identifier system contemplated by this section would
have access to the database of the Federal Bureau of Investigation Integrated
Automated Fingerprint Identification System. The section requires that the Attorney
General shall submit a summary of the findings of the study to Congress within 90
days.
Section 1009. Study of Access.
Section 1009 authorizes $250,000 for the Federal Bureau of Investigation to
study the feasibility of providing airlines with computer access to the names of those
the federal government suspects of terrorism.
Section 1010. Temporary Authority to Contract With Local and State Governments
for Performance of Security Functions at United States Military Installations.
Subject to limited exceptions, the Department of Defense may not contract for
fire fighting or security-guard functions to be performed on military installations, 10
U.S.C. 2465. Section 1010 creates another exception and allows neighboring state
and local authorities to perform security functions for military installations and
facilities pursuant to contracts with the Defense Department for a period up to 180
days after the completion of Operation Enduring Freedom.
Section 1011. Crimes Against Charitable Americans.
The Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C.
6101 et seq. empowers the Federal Trade Commission (FTC) to promulgate
regulations to prevent telemarketing deception. It is a federal crime to impersonate
members or agents of the Red Cross for fraudulent purposes, 18 U.S.C. 917. And the
federal criminal code imposes special penalties for telemarketing fraud, 18 U.S.C.
Section 1011 brings telephone charitable solicitations under the FTC’s regulatory
umbrella, 15 U.S.C. 6102, 6106. It increases the penalty for impersonating Red Cross
members or agents in order make fraudulent charitable solicitations from
imprisonment for not more than 1 year to imprisonment for not more than 5 years, 18
U.S.C. 917. It also amends 18 U.S.C. 2325 in order make the enhanced
telemarketing fraud penalties applicable to fraudulent charitable telephone
solicitations, 18 U.S.C. 2325.
Section 1012. Limitation on Issuance of Hazmat Licenses.
The Secretary of Transportation exercises regulatory authority over the safe
interstate transportation of hazardous materials (hazmat), 49 U.S.C. 5101 et seq., and
over commercial motor vehicle operators, 49 U.S.C. 31301 et seq. Section 1012
enacts 49 U.S.C. 5103a, which limits the issuance of hazmat licenses to instances
where the Secretary of Transportation has certified that the applicant is not a security
risk. It allows the states to request a background check from the Attorney General
for a criminal record, for illegal alien status, and with Interpol. It expands the
definition of hazardous materials to include chemical and biological materials and
agents, and authorizes the Secretary of the Transportation to require the states to
report relevant related information. Section 1012 also amends 49 U.S.C. 31305 with
respect to the minimum standards for commercial motor vehicle operator fitness to
include a determination that the applicant has been determined under section 5103a
not to pose a security risk.
Section 1013. Expressing the Sense of the Senate Concerning the Provision of
Funding for Bioterrorism Preparedness and Response.
Section 1013 expresses the sense of the Senate that there should be an expanded
level of public expenditures to prepare and respond to threats of bioterrorism.
Section 1014. Grant Program for State and Local Domestic Preparedness Support.
Section 1014 authorizes appropriations in whatever sums are necessary for fiscal
years 2002 through 2007 to make OJP grants to the state and local units of
government to enhance their capacity to respond to terrorist attacks including those
involving use of weapons of mass destruction, biological, chemical, nuclear,
radiological, incendiary, chemical and explosive devises. The grants may be used to
train and equip first responders. The Department of Justice may use no more than 3%
of the appropriations for salaries and administrative expenses and each state is entitled
to not less than 0.75% of the amount appropriated in any given fiscal year (not less
than 0.25% for each of Guam, the Virgin Islands, American Samoa and the Northern
Mariana Islands).
Section 1015. Expansion and Reauthorization of the Crime Identification Technology
Act for Antiterrorism Grants to States and Localities.
The Crime Identification Technology Act, Public Law 105-251, 112 Stat. 1871
(1998), 42 U.S.C. 14601, authorizes the OJP to issue state and local grants for the
development of various integrated information and identification systems and for that
purpose authorizes appropriations of $250 million for each fiscal year through 2003.
Section 1015 amends section 14601 to permit grants for related terrorism purposes
and extends the authorization of appropriations in the amount of $250 million per year
through fiscal year 2007.
Section 1016. Critical Infrastructures Protection.
Section 1016 authorizes appropriations of $20 million for fiscal year 2002 to be
used by the Department of Defense’s Defense Threat Reduction Agency for activities
of National Infrastructure Simulation and Analysis Center.