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Analysis of the Patriot Act: Was It a Proper Response?

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Patriot Act

Almost immediately after the horrifying events of September 11, the repression began. More than 1,000 people (predominately Arab and Muslim men) were picked up and jailed by government agents, held without being charged, their names and whereabouts largely kept secretbecause they were suspected of having information about terrorists or terrorist acts. The government used the publics outrage and fear at the unspeakable attacks of September 11 to justify the inflammatory rhetoric in which President George W. Bush said the United States was defending civilization against evil ones, and claimed those who arent with us on the war against terrorism were against us. The apparent widespread public acceptance of these government actions and rhetoric have created an atmosphere in which many are afraid to voice their dissent against the war in Afghanistan and repressive policies here in the United States.

Now that those repressive government policies have been bolstered by the USA PATRIOT ACT, the threat here at home from our own government is very frightening. It raises complex questions about the point at which we would be willing to give up liberties for others and ourselves in the face of threats such as smallpox, additional hijacked planes, or bridges that might be demolished during a rush hour. The potential for government assaults on civil liberties and persecution of dissenters and others has been vastly expanded by this new law, whose full title is Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.

On October 26, 2001, President Bush signed the USA Patriot Act (USAPA) into law. With this law we have given sweeping new powers to both domestic law enforcement and international intelligence agencies and have eliminated the checks and balances that previously gave courts the opportunity to ensure that these powers were not abused. Most of these checks and balances were put into place after previous misuse of surveillance powers by these agencies, including the revelation in 1974 that the FBI and foreign intelligence agencies had spied on over 10,000 U.S. citizens, including Martin Luther King. The bill is 342 pages long and makes changes, some large and some small, to over 15 different statutes. This document provides explanation and some analysis to the sections of the bill relating to online activities and surveillance. Other sections, including those devoted to money laundering, immigration and providing for the victims of terrorism, are not discussed here.

Yet even just considering the surveillance and online provisions of the USAPA, it is a large and complex law that had over four different names and several versions in the five weeks between the introduction of its first predecessor and its final passage into law. However, it contains some sections that seem appropriate. It is providing for victims of the September 11 attacks, increasing translation facilities and increasing forensic cyber-crime capabilities — it seems clear that the vast majority of the sections included have not been carefully studied by Congress, nor was sufficient time taken to debate it or to hear testimony from experts outside of law enforcement in the fields where it makes major changes. This concern is amplified because several of the key procedural processes applicable to any other proposed laws, including inter-agency review, the normal committee and hearing processes and thorough voting, were suspended for this bill.

Were our freedoms the problem? The civil liberties of ordinary Americans have taken a tremendous blow with this law, especially the right to privacy in our online communications and activities. Yet there is no evidence that our previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists. In fact, in asking for these broad new powers, the government made no showing that the previous powers of law enforcement and intelligence agencies to spy on US citizens were insufficient to allow them to investigate and prosecute acts of terrorism. The process leading to the passage of the bill did little to ease these concerns. To the contrary, they are amplified by the inclusion of so many provisions that, instead of aimed at terrorism, are aimed at nonviolent, domestic computer crime. In addition, although many of the provisions facially appear aimed at terrorism, the government made no showing that the reasons they failed to detect the planning of the recent attacks or any other terrorist attacks were the civil liberties compromised with the passage of USAPA.

The Patriot Act is a very broad law and it affects many different aspects of life. Many of these affects do impose restrictions on our civil liberties. These are some of the different affects of the Patriot Act:

Expanded surveillance with reduced checks and balances. USAPA expands all four traditional tools of surveillance — wiretaps, search warrants, pen/trap orders and subpoenas. Their counterparts under the Foreign Intelligence Surveillance Act (FISA) that allow spying in the U.S. by foreign intelligence agencies have similarly been expanded. This means the government may now spy on web surfing of innocent Americans, including terms entered into search engines, by merely telling a judge anywhere in the U.S. that the spying could lead to information that is “relevant” to an ongoing criminal investigation. The person spied on does not have to be the target of the investigation. This application must be granted and the government is not obligated to report to the court or tell the person spied up what it has done. Also, the government may utilize nationwide roving wiretaps. FBI and CIA can now go from phone to phone or computer to computer without demonstrating that each is even being used by a suspect or target of an order. The government may now serve a single wiretap, FISA wiretap or pen/trap order on any person or entity nationwide, regardless of whether that person or entity is named in the order. The government need not make any showing to a court that the particular information or communication to be acquired is relevant to a criminal investigation. In the pen/trap or FISA situations, they do not even have to report where they served the order or what information they received. The EFF believes that the opportunities for abuse of these broad new powers are immense. For pen/trap orders, ISPs or others who are not named in the do have authority under the law to request certification from the Attorney General’s office that the order applies to them, but they do not have the authority to request such confirmation from a court. Next, the Patriot Act requires ISPs to hand over more user information. The law makes two changes to increase how much information the government may obtain about users from their ISPs or others that handle or store their online communications. First it allows ISPs to voluntarily hand over all “non-content” information to law enforcement with no need for any court order or subpoena. Second, it expands the records that the government may seek with a simple subpoena to include records of session times and durations, temporarily assigned network (I.P.) addresses; means and source of payments, including credit card or bank account numbers.

Over-breadth with a lack of focus on terrorism. Several provisions of the USAPA have no apparent connection to preventing terrorism. These include:

a. Government spying on suspected computer trespassers with no need for court order.

b. Adding samples to DNA database for those convicted of “any crime of violence.” The provision adds collection of DNA for terrorists, but then inexplicably also adds a collection for the broad, non-terrorist category of “any crime of violence.”

c. Wiretaps now allowed for suspected violations of the Computer Fraud and Abuse Act. This includes anyone suspected of “exceeding the authority” of a computer used in interstate commerce, causing over $5000 worth of combined damage.

d. Dramatic increases to the scope and penalties of the Computer Fraud and Abuse Act. This includes raising the maximum penalty for violations to 10 years (from 5) for a first offense and 20 years (from 10) for a second offense. Also, it is ensuring that violators only need to intend to cause damage generally, not intend to cause damage or other specified harm over the $5,000 statutory damage threshold. It also allows aggregation of damages to different computers over a year to reach the $5,000 threshold. Next, it enhances punishment for violations involving any damage to a government computer involved in criminal justice or the military. This also includes damage to foreign computers involved in US interstate commerce and includes state law offenses as priors for sentencing.

Allows Americans to be more easily spied upon by US foreign intelligence agencies. Just as the domestic law enforcement surveillance powers have expanded, the corollary powers under the Foreign Intelligence Surveillance Act have also been greatly expanded, including:

a. General Expansion of FISA Authority. FISA authority to spy on Americans or foreign persons in the US (and those who communicate with them) increased from situations where the suspicion that the person is the agent of a foreign government is “the” purpose of the surveillance to anytime that this is “a significant purpose” of the surveillance.

b. Increased information sharing between domestic law enforcement and intelligence. This is a partial repeal of the wall put up in the 1970s after the discovery that the FBI and CIA had been conducting investigations on over half a million Americans during the McCarthy era and afterwards, including the pervasive surveillance of Martin Luther King in the 1960s. It allows wiretap results and grand jury information and other information collected in a criminal case to be disclosed to the intelligence agencies when the information constitutes foreign intelligence or foreign intelligence information, the latter being a broad new category created by this law.

c. FISA detour around federal domestic surveillance limitations; domestic detour around FISA limitations. Domestic surveillance limits can be skirted by the Attorney General, for instance, by obtaining a FISA wiretap against a US person where “probable cause” does not exist, but when the person is suspected to be an agent of a foreign government. The information can then be shared with the FBI. The reverse is also true.

The Patriot Act vastly expands the class of immigrants that can be removed on terrorism grounds. The term “terrorist activity” is commonly understood to be limited to pre-meditated and politically motivated violence targeted against a civilian population. It, however, stretches the term beyond recognition to encompass any crime that involves the use of a “weapon or dangerous device. Under this broad definition, an immigrant who grabs a knife or makeshift weapon in the midst of a heat-of-the-moment altercation or in committing a crime of passion may be subject to removal as a “terrorist.”

The term “engage in terrorist activity” has also been expanded to include soliciting funds for, soliciting membership for, and providing material support to, a “terrorist organization,” even when that organization has legitimate political and humanitarian ends and the non-citizen seeks only to support these lawful ends. In such situations, the USAPA would permit guilt to be imposed solely on the basis of political associations protected by the First Amendment.

To complicate matters further, the term “terrorist organization” is no longer limited to organizations that have been officially designated as terrorist and that therefore have had their designations published in the Federal Register for all to see. Instead, the USAPA now includes as “terrorist organizations” groups that have never been designated as terrorist if they fall under the loose criterion of “two or more individuals, whether organized or not,” which engage in specified terrorist activities. In situations where a non-citizen has solicited funds for, solicited membership for, or provided material support to, an undesignated “terrorist organization,” the USAPA saddles him with the difficult, if not impossible, burden of “demonstrating that he did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity.” Furthermore, while the USAPAs Section 411 prohibits the removal of a non-citizen on the grounds that he solicited funds for, solicited membership for, or provided material support to, a designated “terrorist organization” at a time when the organization was not designated as a “terrorist organization.” Also, Section 411 does not prohibit the removal of a non-citizen on the grounds that he solicited funds for, solicited membership for, or provided material support to, an undesignated “terrorist organization” prior to the enactment of the Act.

The Patriot Act is not entirely a terrible act. It was rushed into Congress soon after 9/11 in order to protect the country from further terrorist attacks. Congress failed to examine the act completely and take into account all of its many changes. They were so fueled by fear that they neglected their responsibilities and obligations of being thorough with legislation. But maybe Congressmen are right; some of the sections of the Patriot Act are a necessary evil in order to keep our country and its citizens safe.

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