Terrorism Legislation: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001

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Terrorism Legislation: Uniting and
Strengthening America by Providing
Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT) Act of 2001

Charles Doyle
Senior Specialist
American Law Division
On Thursday, October 25, 2001, the Senate approved House-passed H.R.3162, the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act which bolsters the ability of
federal authorities to conduct criminal and intelligence investigations, to bar and expel
foreign terrorists from the United States, to separate terrorists from their sources of
financial support, to punish acts of terrorism, and to address the needs of the direct
victims of the events of September 11. The Act is a merger of two bills, S.1510, and
H.R.2975/H.R.3108 which had earlier passed in their respective Houses. It melds the
money laundering aspects of S.1510 with those of the free standing, House-passed
money laundering bill, H.R.3004. A variant of the House sunset provision survives, but
adjustments to the McDade-Murtha Amendment concerning the adherence of federal
prosecutors to local ethical standards do not. Detention authority over immigrants
suspected of terrorist connections remains; as do the benefits to immigrants victimized
by the events of September 11. The President signed the bill on Friday, October 26.
Although some of the Act’s more controversial features were popularly characterized
as wiretap amendments, they actually focused upon related but less intrusive procedures.
Federal law outlaws the interception of telephone conversations (wire communications),
face to face conversations (oral communications), and computer traffic (electronic
communications) (18 U.S.C. 2510-1522, popularly known as “Title III”). However, it
permits law enforcement officers to secretly intercept these communications in the course
of serious criminal investigations when operating under a tightly confined court order.

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Investigators may use a less demanding procedure when they wish to surreptitiously
retrieve a suspect’s stored electronic communications (e.g., e-mail) or telephone or other
communications records (18 U.S.C. 2701-2711 or “chapter 121"). When they simply wish
to identify the source of the calls made to or from a particular telephone, they may use the
less intrusive and consequently less demanding procedures for a court pen register or trap
and trace order (18 U.S.C. 3121-3127 or “chapter 206").
Intelligence officers, who operate without criminal law enforcement authority, have
recourse to more narrowly drawn procedures comparable to those for Title III orders,
search warrants, and pen register/trap and trace orders (Foreign Intelligence Surveillance
Act, 50 U.S.C. 1801-1863 or “FISA”).
The law enforcement changes in the USA PATRIOT Act include:
• adding the crimes of computer abuse, supporting terrorists and terrorist
organizations, using weapons of mass destruction, committing terrorism against
Americans overseas and multinational terrorism to the list of crimes for the
investigation of which a Title III order is available;
• allowing secret retrieval of voice mail under the stored e-mail procedure rather than
under Title III;
• extending the telephone pen register/trap and trace procedure to be used to
determine the sender and address of e-mail messages as well, with a reporting
requirement to ensure that the contents of an e-mail are not captured as part of the
pen register/trap and trace;
• permitting judges in districts where the crime under investigation occurred to issue
pen register/trap and trace orders regardless of where the telephone or e-mail servers
are located;
• permitting judges in districts where the crime under investigation occurred to issue
warrants for the content of stored e-mail and voice mail regardless of where the
storage facilities are located;
• creating an exception to Title III under which a system provider may permit a law
enforcement interception of the communications of a trespasser within the system;
the House bill adds that only communications in or through the system may be
• calling for expiration of most of these amendments and those to FISA with respect
to crimes committed or foreign intelligence investigations initiated after December

31, 2005.

Limitations on foreign intelligence gathering in this country are the product of the
Supreme Court’s refusal to accept a national security exception to the Fourth
Amendment’s search and seizure requirements for domestic terrorist interceptions,
apprehension over creation of a secret police force, and concerns over alleged intelligence
community abuses during the Vietnam Conflict. The Act eases some of those limitations
and recasts the procedures for foreign intelligence gathering in this country by:

• allowing interceptions when intelligence gathering is a significant rather than the
sole purpose for the FISA order;
• expanding the FISA pen register/trap and trace authority to include computer
communications (e.g. e-mail);
• increasing the number of judges who may issue FISA orders from 7 to 11;
• extending the permissible duration of FISA interception orders and search warrants;
• permitting roving (not telephone line, location, or computer equivalent specific) pen
register/trap and trace orders;
• authorizing emergency FISA pen register/trap and trace orders;
• eliminating the requirement that the target of the pen register/trap and trace order
be a foreign power, agent of a foreign power, or international terrorist;
• adding the caveat, however, that FISA pen register/trap and trace orders may not
be secured in the intelligence investigation of an American (actually a somewhat more
broadly defined “U.S. person”) based solely on the exercise of First Amendment
• establishing, nevertheless, that serious abuses of the FISA, Title III, or chapters
121, or 206 may be grounds for administrative discipline and give rise to a claim
against the United States.
Other Investigation Enhancements
The Act grants increased law enforcement and intelligence gathering powers in other
areas. It:
• allows “sneak and peek” warrants, warrants under which officers may conduct a
search secretly but delay notice of the search if it would adversely impact the
investigation; except when the court considers it reasonably necessary, however, it
does not provide authority to seize either tangible evidence or wire or electronic
communications (which might otherwise have been seized in a virtual search);
• permits intelligence officers to receive grand jury disclosures involving foreign
intelligence information, but with a report to the court on information disclosed and
to whom it was disclosed;
• permits intelligence officers to receive wiretap disclosures involving foreign
intelligence information;
• permits intelligence officers to receive foreign intelligence information unearthed
during a criminal investigation;

• authorizes court orders for access to tangible items in connection with an
intelligence investigation as long as the investigation of any U.S. person is not based
exclusively on 1st amendment protected activities;
• authorizes federal judges to issue warrants with respect to crimes within their
jurisdiction regardless of where the warrants are to be executed;
• broadens Justice Department access to third party records held by communication
providers, banks, consumer credit agencies, and educational institutions;
• authorizes appropriations for regional computer forensic laboratories ($50 million),
federal-state-and-local multijurisdictional criminal information sharing systems ($150
million), creation of a FBI technical support center ($600 million), for equipment
enhancements on the Northern Border ($100 million), study of the feasibility of
making the FBI’s automated fingerprint file available to check on visa applicants ($2
Terrorism is already grounds for exclusion or removal of a foreign national from the
United States. Triggering definitions of terrorist activities, engaging in terrorist activities,
and terrorist organizations grow more inclusive under the Act. It vests the Secretary of
State with an alternative means of designating terrorist organizations. The Attorney
General is empowered to jail aliens for up to a week before deciding whether to begin a
prosecution or immigration proceeding for removal. It carries forward earlier House
suggestions for the benefit of immigrants and the immigrant families of those killed or
disabled on September 11, 2001.
Money Laundering
The Act’s money laundering sections deal with international money laundering, Bank
Secrecy Act amendments, as well as currency crimes and penalties. Among other things,
it grants the Secretary of the Treasury increased authority to impose special record-
keeping measures upon U.S. financial institutions dealing with countries serving as money
laundering havens, and to require due diligence from U.S. financial institutions with
respect to private bank and correspondent accounts held for foreign nationals. It increases
federal forfeiture authority by:
• subjecting terrorists’ assets to confiscation;
• permitting the substitution of funds in interbank accounts held in the U.S. on behalf
of foreign banks who are holding forfeitable assets on deposit overseas;
• expanding confiscation authority to include the proceeds from misconduct abroad
in violation of foreign law;
• establishing a procedure to enforce foreign forfeiture decisions; and

• barring the right of a corporate entity to contest confiscation if its major shareholder
or representative in the contest is a fugitive.
The Act amends the Bank Secrecy Act, the Right to Financial Privacy Act and the
Fair Credit Reporting Act to afford U.S. intelligence agencies greater access to financial
records when conducting intelligence and counterintelligence investigations. Numbered
among other Bank Secrecy Act changes are provisions which extend reporting and record-
keeping requirements to informal money transfer businesses; require nonfinancial
businesses to report transactions involving more than $10,000 in cash; and direct a study
of possible improvements in the currency transaction reporting system.
Crime, Punishment, and Procedure
The Act creates new federal crimes, raises the penalties for existing crimes, and eases
the government’s procedural burdens with an eye to discouraging and punishing terrorism.
More specifically, it:
• makes it a federal crime to harbor a terrorist, or commit an act of violence against
public transportation, and outlaws possession of biological agents by fugitives,
convicted felons and the like;
• increases the penalties for counterfeiting offenses and for conspiracies to commit
a number of terrorist crimes;
• adds terrorist crimes to the federal racketeering predicate offenses (RICO) list
which outlaws conducting the affairs of an enterprise whose activities affect interstate
commerce through the patterned commission of various underlying offenses;
• eliminates the statute of limitations for any terrorist offense that involves the
foreseeable risk of serious injury, and lengthens the period for several others;
• boosts the penalties for some computer abuse crimes;
• permits the federal prosecution of more crimes committed overseas either on federal
facilities or involving American credit cards, pin numbers and the like; and
• conveys additional authority on the Attorney General and Secretary of State to offer
and pay rewards in cases of terrorism.