How does the Patriot Act involve the First Amendment?

Wednesday, May 26, 2004

Supporters of the USA Patriot Act contend that the law is a necessary
response to the post-Sept. 11 world that contains very real threats of
international and domestic terrorism. Detractors contend that at least some
provisions of the Patriot Act infringe on constitutional rights. Though many
provisions of the Patriot Act more directly affect Fourth Amendment freedoms
(the right to be free from unreasonable searches and seizures), some provisions
implicate the First Amendment.

For example, Section 215 of the Patriot Act gives the FBI broad powers to
obtain records from libraries, bookstores, businesses and other entities.
According to the American Civil Liberties Union, which is challenging this
section in a federal court in Michigan, this provision directly affects
political and religious expression. An Internet service provider might be asked
to turn over records relating to individuals who engage in political speech
highly critical of the government. A mosque might be forced to turn over records
of members who are targeted by law enforcement. Another provision of the Patriot
Act provides that it is illegal to provide “material support” for terrorist
groups, but defines “material support” to include “expert assistance and
advice.” This expert assistance might include advice about international

On March 9, 2006, President Bush signed the USA Patriot Improvement and
Reauthorization Act of 2005 (H.R. 3199)
and the USA Patriot Act Additional Reauthorizing Amendments Act of 2006 (S. 2271).
Several provisions of the act were reauthorized along with stronger requirements
that the government must meet before it can access information. Nonetheless, the
act still authorizes the government to obtain secret court orders to get
library, medical and business records.

Under the reauthorization of Section 215, the FBI can obtain library records
of anyone if the agency shows it has “reasonable grounds” to believe the records
are “relevant” for an authorized investigation to “protect against international
terrorism.” If a library merely provides Internet access, it cannot be asked to
hand over information regarding a patron’s Internet use. However, if a library
is an Internet service provider, the government can request such information. A
person, such as a librarian, who receives a Section 215 order to disclose
information, is limited to disclosing the receipt of the order to an attorney or
to a “person to whom disclosure is necessary to comply with such order.” The
reauthorization also allows those receiving a Section 215 order to challenge the
“gag order” that accompanies all requests for information. However, those
wanting to challenge the nondisclosure requirement of the order must wait a year
to begin proceedings. A sunset provision for Section 215 sets it to expire Dec.
31, 2009.

At the signing of the act’s reauthorization, President Bush issued a signing statement saying that despite the law’s requirement for disclosure about government investigations, he would allow the executive branch to withhold information if he decided it would “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” The Senate Judiciary Committee opened hearings in June 2006 regarding presidential signing statements.