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By David L. Hudson Jr.
First Amendment Center research attorney


Supporters contend the Patriot Act is responsible for preventing further catastrophes. Sen. Mitch McConnell, R-Ky., said in Congress in April 2004 that “the biggest hero to emerge from the hearings before the 9/11 Commission has been the Patriot Act.” In March 2006, President George W. Bush credited the Patriot Act with helping "break up terror cells in Ohio, New York, Oregon and Virginia."

Detractors counter that the Patriot Act represents a loss of individual liberty and a naked grasp for power by the executive branch of government, particularly over the judicial branch. Robert Levy, senior fellow in constitutional studies at the Cato Institute, has written that the Patriot Act represents "the looming sacrifice of civil liberties at the altar of national security."






The American Civil Liberties Union and other groups mounted a hearty campaign of opposition against the Patriot Act, challenging several of its provisions in federal courts. As time passed, more members of Congress also objected to certain provisions of the law. This criticism led to modifications of several provisions. At the same time the executive branch and some legislative leaders called for a strengthening of some provisions. They also called for certain provisions in the Patriot Act that were set to expire at the end of 2005 to be made permanent.

Section 215

Section 215 of the law allows the Federal Bureau of Investigation to “make an application for an order requiring the production of any tangible things for an investigation to obtain foreign intelligence information … providing that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”

Previously, the FBI could only obtain business records from vehicle rental agencies, transport services, storage facilities and similar places. Now, Section 215 allows the government to obtain “any tangible things,” which can include library records, health-care records, logs of Internet service providers and other documents and papers.







In legal papers in its lawsuit, the ACLU wrote that this “gag provision is manifestly inconsistent with the First Amendment.” In an earlier publication, Unpatriotic Acts: The FBI’s Power to Rifle Through Your Records and Personal Belongings Without Telling You, the ACLU wrote: “If the First Amendment means anything, it means that the government cannot impose an indefinite gag order without reference to the particular facts of the particular case.”





Judge Hood did not issue an opinion until Sept. 29, 2006. In Muslim Community Association of Ann Arbor v. Ashcroft, Hood denied the government’s motion to dismiss on standing grounds. However, she noted that Section 215 had been modified significantly since the lawsuit filing. When Congress passed amendments to the Patriot Act in March 2006, it substantially amended Section 215. Under current law (50 U.S.C. 1861(a)), a person who receives a request for such records may disclose the request to “an attorney to obtain legal advice or assistance with respect to the production of things in response to the order.” The new law also requires the FBI to include in its record requests “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.”



Another legal challenge


The plaintiffs argued that the ban on “expert advice and assistance” was unconstitutionally vague and could bar protected First Amendment activity, such as assisting one of the groups in petitioning the United Nations, providing legal assistance in negotiating peace agreements or advising on international law. In Humanitarian Law Project v. Ashcroft, No. CV 03-6107 (ABC), U.S. District Judge Audrey B. Collins agreed that the “expert advice and assistance” language was too vague.



In June 2004, a jury in Idaho acquitted Sami Al-Hussayen, a graduate student accused of providing “expert assistance” to terrorists through a Web site. The jury reached its verdict after seven days of deliberation. "The message is that the First Amendment is important and meaningful in this country," said David Nevin, lead attorney for Al-Hussayen. "The system worked."

Section 505 and the National Security Letter lawsuit
Another Patriot Act provision that led to federal court challenges was Section 505, which expanded the FBI's authority to issue National Security Letters demanding customer records from businesses. Before Section 505 took effect, the FBI could issue NSLs only on those suspected to be terrorists or foreign spies. Now, according to the ACLU, the FBI could use its powers to obtain information on anyone. Similar to Section 215, Section 505 also prohibited individuals who received requests under the section from disclosing that fact to anyone. Critics charge that this gag-order provision violates First Amendment rights.


Two ACLU lawsuits alleged that the FBI’s NSL powers, as amended by Section 505 of the Patriot Act, violate the First Amendment by giving the FBI the power to force the disclosure of sensitive, personal information without adequate safeguards.

In Doe v. Ashcroft (2004), a federal district court in New York ruled that Section 505 violated the First Amendment. The judge wrote that “Democracy abhors undue secrecy” and that “an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society.”

In Doe v. Gonzales (2005), a federal district court judge in Connecticut lifted a gag order imposed on librarians who had received a National Security Letter from the FBI asking for records from a library computer. In September 2005, federal district Judge Janet Hall lifted the gag order.

The government appealed both decisions to the 2nd U.S. Circuit Court of Appeals. On May 23, 2006, a three-judge panel of the 2nd Circuit issued its opinion, styled Doe v. Gonzales, which dealt with both the New York and Connecticut decisions.

The 2nd Circuit remanded the New York case back to the federal trial court, because Section 505 had been substantially amended by the USA Patriot Improvement and Reauthorization Act. “The Reauthorization Act has substantially shifted the legal footing on which Doe I stands,” the court wrote. The appeals court asked that the trial court conduct a First Amendment analysis of the revised version of National Security letter provision.

As for the decision from Connecticut, the 2nd Circuit determined that the case was moot, or no longer active, because the government had conceded that the librarians could reveal their identities. The appeals court had originally kept the gag order in place in September 2005 while the government appealed. However, the government later conceded that the librarians could reveal themselves.

Legislative, community responses
The Patriot Act engendered opposition at the local and state level, as many members of the public and local legislators expressed concerns about particular provisions of the act. At the federal level, several provisions introduced in Congress would have changed or repudiate parts of the Patriot Act. These measures, no longer active, included:

  • H.R. 1157 — Freedom to Read Protection Act of 2003 (introduced March 6, 2003, by Rep. Bernie Sanders (I-Vt.).
  • S. 1507 — Library, Bookseller, and Personal Records Privacy Act (introduced July 31, 2003, by Sen. Feingold).

The Justice Department drafted another bill, dubbed Patriot II, called the Domestic Security Enhancement Act of 2003. Copies of the measure were leaked, which led to widespread opposition. The proposed Patriot II contained many provisions that caused alarm among free-speech and privacy advocates. For example, under the measure, federal agents would not need a subpoena to obtain consumer credit records. Under current law, they do need a subpoena. The measure would have provided less public access to information about terrorist detainees and related investigations. Amid the outcry over such provisions, the Patriot II measure apparently was never formally introduced in Congress.

The Security and Freedom Ensured Act of 2003, called SAFE, sought to amend some of the more controversial provisions of the Patriot Act. This bill, which had bipartisan support, would have amended Section 215 by requiring the FBI to have “specific and articulable facts” connecting records to a foreign agent. It also would have amended several other provisions of the Patriot Act. In April 2004, Sen. Craig said in Congress: “I am not seeking to repeal any provision of the Patriot Act but rather to salvage it by making necessary, albeit minor, amendments to it in order to safeguard individual liberties while preserving the very important law enforcement authorities it grants.”

A revised version of the SAFE Act was introduced in 2005. Also, in summer 2005, the USA Patriot and Terrorism Prevention Reauthorization Act of 2005 (H.R. 3199) was introduced. This lengthy legislation, signed into law in March 2006, contained elements of the SAFE Act in that it modified some of the controversial provisions. However, it also made permanent several other provisions of the original Patriot Act. The act represented a compromise measure of sorts between those on the one hand who wanted to extend and expand the provisions in the Patriot Act and those who wanted to modify.

In addition to legislative activity, many communities have become involved by passing resolutions opposing parts of the Patriot Act. According to the Bill of Rights Defense Committee, 408 communities had passed measures opposing the Patriot Act as of November 2006. At least five states — Alaska, Hawaii, Maine, Montana and Vermont — have passed statewide resolutions.

For example, Montana's resolution opposes several provisions of the act and states that the “59th Montana Legislature urges the Montana Congressional Delegation to vigorously oppose any pending and all future federal legislation if the legislation infringes on the civil rights and civil liberties of American citizens.”

The opposition did not stop the U.S. Congress from renewing most provisions of the Patriot Act in March 2006. Section 224 had provided that several provisions of the act would expire on Dec. 31, 2005, unless Congress renewed them.




Many people believe that government officials have encroached on individual liberty by passing the Patriot Act and subsequent expansions and amendments out of well-meaning motives — to combat the undoubted evils of terrorism in the age of al-Qaida. However, questions persist as to whether at least some of these provisions were undertaken with a proper understanding of the Constitution and the First Amendment.

Updated November 2006


Broader law sought against 'material support' for terrorism

Case in point: Idaho grad student who is accused of providing computer-related services for suspected terrorist aims. 05.06.04

Ex-CIA agent says suspect's Web work didn't aid terrorists
Defense rests in Idaho case pitting First Amendment guarantees against government's war on terrorism. 05.27.04

Jury acquits man of charges he used Net to promote terrorism
Legal experts see verdict as only early victory in battle against government's use of Patriot Act to pursue people on basis of what they say, write and disseminate. 06.11.04

House refuses to curb Patriot Act
Provision allowing investigators to see library, bookstore records stands as amendment defeated. 07.08.04

Where Bush, Kerry stand on Patriot Act
Presidential candidates' replies to question about whether and how anti-terrorism act should be changed. 09.09.04

Federal court strikes down part of Patriot Act
Judge says provision allowing secret searches of records from ISPs, other businesses violates First Amendment because it bars companies from ever disclosing search took place. 09.30.04

9th Circuit reinstates terror indictments
Appeals court backs law against 'material support' for terrorism-linked groups; some say decision hampers free association. 12.21.04

Secrecy hurting push for Patriot Act renewal, lawmakers say
Members of Senate intelligence panel raise concerns over lack of publicly disclosed information about how law has been used. 04.29.05

House votes to rein in Patriot Act
Despite White House veto threat, lawmakers vote to limit investigators' access to library, bookstore records. 06.16.05

House approves Patriot Act renewal
Bill would extend most of law indefinitely, but would limit library, roving-wiretaps provisions to 10 years; meanwhile, Senate panel OKs its version of measure. 07.22.05

Federal court rules Patriot Act provisions still too vague
Judge says Congress failed to remedy all problems she defined in 2004 ruling that found parts of law were impermissibly vague in violation of First, Fifth Amendments. 08.01.05

Patriot Act defense in homelessness case gets boost
London bombings give credence, say officials in New Jersey town, to using anti-terror law to justify evicting homeless people from transit stations. 09.04.05

Federal judge lifts gag order in Patriot Act case
Court rules against order shielding identity of librarians who received FBI demand for patron records, but stays ruling until Sept. 20 to give government time to appeal. 09.12.05

2nd Circuit ruling keeps gag on librarians
Patriot Act case involves FBI demand for records about Connecticut library patrons. 09.21.05

Congress considers curbing some Patriot Act powers
Proposed House-Senate deal could reject Bush administration's request to grant FBI greater authority to subpoena records without a judge's approval. 11.10.05

Congress puts brakes on Patriot Act renewal
Slowdown comes amid standoff over how long to extend anti-terrorism law and filibuster threat by senators opposed to new powers it would grant FBI. 11.21.05

House OKs Patriot Act compromise
But with bill facing Senate filibuster, Majority Leader Bill Frist begins talks with White House on extending current law unchanged for one year. 12.14.05

Senate blocks Patriot Act reauthorization
Bill's supporters fail to get 60 votes needed to overcome threatened filibuster; if compromise isn't reached, 16 provisions will expire on Dec. 31. 12.16.05

House passes 1-month extension of Patriot Act
Representatives reject Senate's earlier 6-month extension; political wrangling to continue over privacy protections. 12.22.05

Senate agrees to House's 1-month Patriot Act extension
What's important, says Sen. Leahy, is 'improving the Patriot Act to strike the right balance in respecting Americans' liberty and privacy, while protecting their security.' 12.23.05

Dissenting Senate GOP, White House reach Patriot Act deal
Under agreement on changes, Republicans say, chances that libraries would have to turn over info would be remote. 02.10.06

Patriot Act compromise cleared for final passage
House speaker, Senate Democratic leader say they will endorse changes made by White House, Senate Republicans. 02.13.06

Patriot Act moves closer to renewal
In 96-3 vote, Senate rejects effort led by Russell Feingold to block reauthorization of anti-terrorism law. 02.16.06

Senate approves Patriot Act renewal
House is expected to pass legislation next week in time for Bush to sign measure before 16 provisions expire March 10. 03.02.06

Patriot Act awaits Bush's signature
House passes renewal measure by 280-138 vote, ending monthslong battle over how to balance privacy rights against security concerns. 03.08.06

FBI sought information on 3,501 people last year
Secret National Security Letters were sent to banks, telephone, credit-card companies seeking information in Patriot Act antiterrorism efforts. 05.01.06

Former prof gets 18 months more in terror case
Despite acquittal on some charges, Sami Al-Arian signed plea deal admitting he provided support to Palestinian jihadist group that killed hundreds of people. 05.01.06

2nd Circuit challenges national security letters' speech ban
Panel dismisses Connecticut case as moot, returns New York case to lower court to see how new law affects it. 05.24.06

Librarians bitterly decry gag order in Patriot Act case
Though now free to speak, four continue fighting FBI's request for information about library patrons. 05.31.06

Feds drop demand for Conn. library records
FBI official said investigators later discounted threat that led to request, but probe was slowed by librarians' failure to cooperate. 06.27.06

Justice orders release of records in national security letter case
Ruth Bader Ginsburg directs lower courts to unseal material in case involving FBI's demand for computer records from Connecticut library. 08.03.06

Man charged with relaying Hezbollah TV to N.Y. customers
Al Manar network was designated by U.S. government last March as global terrorist entity, making it a crime to conduct business with it. 08.25.06

Court allows challenge to Patriot Act to proceed
ACLU's clients, including various Muslim groups, have shown they've been harmed by anti-terrorism law, says Detroit federal judge. 10.04.06

ACLU drops challenge to part of Patriot Act
Group cites 'improvements' to Section 215, saying revisions allow people told to turn over records to consult lawyer, challenge demands in court. 10.30.06

Justice Dept.: FBI misused Patriot Act
Serious underreporting of demands for customer data from businesses, a few unauthorized investigative requests found in audit by DOJ inspector general. 03.09.07

Librarian who fended off FBI warns against government secrecy
'Terrorists win when the fear of them induces us to destroy the rights that make us free,' George Christian tells Senate panel. 04.12.07

Justice Dept. told to release info about FBI records
Federal judge sets July 5 deadline for documents about national security letters to be handed over to the Electronic Frontier Foundation. 06.18.07

ACLU lawyer: Patriot Act gag order is unconstitutional
Attorney tells federal judge statute disregards First Amendment by permitting law enforcement authorities to ban those who receive national security letters from talking about them. 08.16.07

Part of Patriot Act struck down
ACLU attorney applauds federal judge's ruling, says law had wrongly given FBI sweeping authority to control speech. 09.06.07

Lawmakers float changes to Patriot Act in wake of ruling
Federal judge's blistering attack on law sparks behind-the-scenes talks in Washington among members of Congress who wrote and revised act. 09.07.07

9th Circuit finds parts of Patriot Act unconstitutional
Three-judge panel upholds judge's ruling that language dealing with foreign terrorist groups is too vague. 12.11.07

Patriot Act constitutional, federal judge holds
Terror suspect fails in effort to get evidence against him thrown out after e-mails he sent to Web site resulted in surveillance. 01.25.08

Audit finds 34 cases of improper intelligence-gathering
FBI abuses cited in Justice Department report include unauthorized issuance of national-security letters, collection of individuals' telephone, e-mail records. 03.13.08

FBI withdraws national security letter issued to digital library
Internet Archive had challenged agency demand, alleging that letter violated free speech by prohibiting recipients from discussing it. 05.08.08

The First Amendment: A Wartime Casualty?

Debating the Patriot Act: Is the sun setting on Section 215?
By Charles C. Haynes Prospect of getting checked out by the FBI for checking out the wrong book just plain scares people. 06.26.05

Patriot Act is Exhibit A on the risks of secrecy
By Paul K. McMasters The problem with excessive government secrecy is that it is a refuge for incompetence — or worse. 07.17.05

When free speech struggles against fear
By Ronald K.L. Collins Two new books, on free-speech heroes and on J. Edgar Hoover, show workings of censorship and how 'security' too often trumps liberty. 05.21.07

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