USA PATRIOT ACT SUMMARY

NACDL Summary of USA PATRIOT Act

What’s Out:

McDade-Murtha Law repeal: would have repealed the McDade-Murtha Law and divested state authorities of their traditional authority to determine and enforce rules of ethics for all the attorneys they license

Pre-trial restraint of substitute assets: would have allowed seizure of untainted assets prior to trial, giving the government the power to pauperize most criminal defendants at the time of indictment

Interstate currency couriers: prohibited transportation in interstate commerce of more than $10,000 in illegal proceeds; in effect, the proposed language would have required anyone traveling with more than $10,000 to prove that the money came from a legitimate source

Exception to forfeiture rules for bulk cash smuggling: would have eviscerated judicial discretion to reduce or reject unfair forfeiture of clean money in cases involving currency reporting violations; under the proposed rule, the burden would have been on the owner to prove that the money came from a legitimate source; even then, the government would keep the maximum amount not grossly disproportional to the gravity of the offense

Forfeiture for violations of 6050I: would have made violations of 26 U.S.C. § 6050I, failure to correctly file a Form 8300, subject to civil and criminal forfeiture

Forfeiture for violations of new FinCEN reporting requirement: would have authorized civil and criminal forfeiture for noncompliance with the new currency reporting requirement created by the Act


What’s In:


Surveillance

New Title III predicates (Sections 201 & 202): adds terrorism crimes and computer fraud and abuse to the list of crimes for which orders for wire, oral, and electronic communication may be ordered

Expanded sharing of foreign intelligence information (Section 203): amends Fed. R. Crim. P. 6(e) (grand jury secrecy) and the wiretap law to permit more widespread sharing of foreign intelligence information among intelligence and law enforcement agencies; if grand jury information is involved, post-disclosure notice to the court is required

Roving wiretaps under Foreign Intelligence Surveillance Act (FISA) (Section 206): authorizes “roving wiretaps” in foreign intelligence cases — meaning that law enforcement can listen in on multiple phones and devices used by a terrorism suspect with one warrant — if the court finds that the actions of the suspect “may have the effect of thwarting” surveillance

Search warrants for voice mail (Section 209): permits seizure of voice mail messages pursuant to a search warrant, in lieu of a wiretap order

Sneak and peek searches (Section 213): authorizes issuance of surreptitious search warrants; notice may be delayed when court finds reasonable cause to believe that providing immediate notification of the warrant’s execution may have any “adverse result” (e.g., “seriously jeopardizing an investigation”); seizures are permitted if the court finds “reasonable necessity”; warrant must provide for notice within a “reasonable period” after execution

Expanded electronic surveillance capabilities (Section 216): expands domestic pen register and trap-and-trace authority to cover the tracing of Internet communications, but forbids collection of “content” under such orders; allows nationwide service of such orders

Broader use of the Foreign Intelligence Surveillance Act (FISA) (Section 218): abandons the requirement that “the purpose” of FISA warrant be foreign intelligence gathering; authorizes search and surveillance pursuant to permissive FISA procedures if “a significant purpose” of the investigation is foreign intelligence gathering

Nationwide search warrants (Sections 219 & 220): amends Fed. R. Crim. P. 41(a) to allow a federal court in any district in which activities related to the terrorism may have occurred to issue a warrant for a search of property or for a person within or outside the district; also allows nationwide service of search warrants for electronic evidence issued by a court with jurisdiction over the offense under investigation

Civil liability for unauthorized disclosures (Section 223): allows citizens and long-term residents to sue under Federal Tort Claims Act for unlawful disclosure of surveillance evidence and increases penalties for such violations

Sunset (Section 224): Terminates some search and surveillance provisions after four years (December 31, 2005); does not apply to sharing of grand jury information, sneak and peek warrants, pen register and trap-and-trace authority for Internet communications and nationwide search warrants for terrorism

Money Laundering & Forfeiture

Additional money laundering (and forfeiture) predicates (Sections 315 & 376) : adds several foreign offenses, illegal firearms importation and trafficking, computer fraud and abuse, and providing material support to terrorist organizations

Forfeiture for foreign offenses (Section 320): authorizes civil asset forfeiture for certain offenses against a foreign nation

FinCEN report (Section 365): requires anyone engaged in a trade or business who receives more than $10,000 in coins or currency in one transaction (or two or more related transactions) to file a report with the Financial Crimes Enforcement Network (FinCEN), an agency within the Treasury Department

Bulk cash smuggling (Section 371): creates new penalties for the undeclared movement of more than $10,000 across U.S. borders; makes findings regarding the “seriousness of the act” so as to overrule United States v. Bajakajian, where the Supreme Court held that forfeiture of $357,144 for an identical currency reporting offense was “grossly disproportional” to the gravity of that offense

Unlicenced money transmitting businesses (Section 373): amends 18 U.S.C. § 1960 to abolish any requirement that the defendant be aware of the laws requiring money transmitting licenses; authorizes civil forfeiture of the illegally transmitted funds

Forfeiture of terrorist assets (Section 806): authorizes broad civil forfeiture of assets related to domestic or international terrorism

Venue in money laundering cases (Section 1004): expands venue in money laundering cases to include any district where the underlying unlawful activity could be prosecuted, overruling the Supreme Court’s holding in United States v. Cabrales

Aliens involved in money laundering (Section 1006): makes inadmissible any alien the AG "has reason to believe" has or is engaged in money laundering; applies to aliens who engage in transactions outside the U.S. that do not violate the foreign country's laws but would constitute money laundering if engaged in here
Immigration

Detention of non-citizens (Section 412): authorizes the detention of non-citizens suspected of terrorist acts for seven days without filing charges, an increase from the two days allowed under existing law

Other Criminal Provisions

Domestic terrorism (Section 802): defines domestic terrorism as any illegal activity that is dangerous to human life and that appears intended to (1) intimidate or coerce a civilian population, (2) influence government policy by intimidation or coercion, or (3) affect government conduct by mass destruction, assassination, or kidnaping; this definition is used to trigger certain consequences such as asset forfeiture

Harboring terrorists (Section 803) : prohibits harboring or concealing any person knowing, or having reasonable grounds to believe, they have committed one of the specified terrorism-related offenses

Expanded definition of Federal crime of terrorism (Section 808): adds several predicate offenses, including computer fraud and abuse, if “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct”

Extended statute of limitations and enhanced maximum penalties (Sections 809 - 811): extends or eliminates the statute of limitations and enhances the maximum penalties for certain terrorism-related offenses

Acts of terrorism as RICO predicates (Section 813): expands RICO predicates to include certain terrorism-related offenses