Analysis—H.R. 3162

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

On Friday, October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001. This broad anti-terrorism law significantly expanded the powers of federal law enforcement with respect to investigating both past and potential terrorist activities and permitted increased sharing of information about such activities between federal, state and local authorities. Below is a summary of the provisions that specifically impact charitable and educational organizations and brief summaries of certain generally applicable provisions that may have specific effects on such organizations, particularly domestic organizations that work with foreign individuals and organizations.

• Section 416: Foreign Student Monitoring Program. Requires the Attorney General, in consultation with the Secretary of State, to fully implement a program created in 1996, which involves the electronic collection of information from educational institutions about foreign students from selected countries who are studying in the United States. The information to be collected includes the student’s name, current address, visa classification, academic status and any disciplinary action taken against the student because of the student’s conviction of a crime. The program is exempt from the Family Educational Rights and Privacy Act of 1974, which generally prohibits release of student information without consent. Educational institutions are required to participate in the program or lose their ability to host foreign students. The anti-terrorism law expands the program to include not only colleges and universities but also air flight schools, language training schools or vocational schools that can host foreign students. The law also authorizes $36.8 million in appropriations to fund the program in 2002.
  
• Section 507: Disclosure of Educational Records. Amends the Federal Educational Rights and Privacy Act of 1974, which generally prohibits release of student information without consent, to allow the Attorney General or her designee to apply to a court for an order granting access to educational records in the possession of an educational agency or institution that are relevant to an authorized investigation or prosecution of an act of terrorism or offenses such as attacks on senior government officials, airports, airplanes, and ports. The order may be obtained ex parte, i.e., without notifying the affected student or his or her parents.
  
• Section 508: Disclosure of Information from NCES Surveys. Allows the Attorney General or her designee to apply to a court for an order granting access to information collected by the National Center for Education Statistics of the Department of Education, the main federal organization responsible for collecting and analyzing data on education. This would include access to information that can be connected to specific individuals. The order may be obtained ex parte, i.e., without notifying any affected students or educational institutions.
  
• Section 1011: Crimes Against Charitable Americans. Expands the Federal Trade Commission’s authority to regulate telemarketing to include the solicitation of charitable contributions and requires telemarketers who are soliciting charitable contributions to promptly disclose that the purpose of the call is to make such a solicitation, and to disclosure any other information the Commissions considers appropriate, such as the name and mailing address of the charitable organization involved. The anti-terrorism law also expands the definition of telemarketing for purposes of the criminal offense of telemarketing fraud to include telemarketing fraud that involves soliciting charitable contributions.

• Section 802: Definition of Domestic Terrorism. Until now, federal law primarily defined “terrorism” as referring to “international terrorism,” i.e., terrorism that either occurred outside the United States or transcended national boundaries, thereby generally excluding purely domestic activities. The anti-terrorism law now expands the term “terrorism” to include “domestic terrorism.” Domestic terrorism is defined as acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, occur within the United States, and appear to be intended (i) to intimidate or coerce a civilian population, (ii) to influence the policy of a government by intimidation or coercion, or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping. Some organizations, notably the ACLU, have raised concerns that this could result in the activities of certain advocacy organizations, such as People for the Ethical Treatment of Animals and Operation Rescue, be classified as terrorist activities, thereby subjecting those organizations to the now expanded law enforcement powers and other restrictions that apply to past or potential terrorist activities.
  
• Sections 201 to 225: Enhanced Surveillance Procedures. Expands the ability of law enforcement agencies to apply to a court to tap any communication devices that a suspect may use (so-called “roving wiretaps”) and to obtain information about electronic communications. Some of these provisions do not relate solely to suspected terrorists.
  
• Section 213: Authority for Delaying Notice of the Execution of a Warrant. Permits the federal government to delay notifying an affected party about a search warrant if a court determines that there is reasonable cause to believe an individual’s physical safety will be endangered, someone will flee prosecution, evidence will be tampered with, potential witnesses will be intimidated, or an investigation would be jeopardized or a trial unduly delayed. The warrant is only permitted to allow the seizure of tangible property or an electronic communication if a court finds reasonable necessity for the seizure, and it must provide for notice of the warrant within a reasonable period after its execution. This provision is not limited to warrants relating to terrorist activities.
  
• Section 215: Access to Records and Other Items Under the Foreign Intelligence Surveillance Act. Allows the FBI Director or his designee to apply to a court for an ex parte order to conduct a secret search, i.e., without providing notice to the affected party, for tangible items, including documents and other records.
  
• Section 351: Amendments Relating to Reporting of Suspicious Activities. Protects financial institutions from liability for voluntary disclosure to a government agency of suspicious activity relating to a possible violation of any law or regulation without providing notice of such disclosure to any affected persons. This provision is not limited to reporting suspicious activity that may relate to possible terrorist activity.
  
• Section 411: Definitions Relating to Terrorism. Permits the INS to bar the admission of any foreign person who is a representative of either a foreign organization designated by the Secretary of State as a foreign terrorist organization or a domestic or foreign organization “whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities.” Association by a legal immigrant with such an organization, such as by paying membership dues, could also be a deportable offense. There is no requirement of court approval of any such designation by the Secretary of State.
  
• Section 412: Mandatory Detention of Suspected Terrorists. Requires the Attorney General to take into custody any alien that the Attorney General has certified as having violated his or her immigration status or engaged in activities that endanger the national security of the United States. The anti-terrorism law generally requires removal or criminal proceedings to commence within 7 days of detention, but also permits indefinite detention in the case of an immigration status violation if removal is unlikely and the Attorney General has reasonable grounds to believe that the release of the alien “will threaten the national security of the United States or the safety of the community or any person.”
  
• Section 806: Assets of Terrorist Organizations. Subjects to forfeiture to the federal government all assets used by persons engaged in planning or perpetrating terrorism, or acquired or maintained to support, plan, conduct or conceal terrorism, or derived from terrorism. Could be used to seize assets of a charitable or educational organization tied to terrorism.

Prepared by:  Lloyd Mayer, Caplin and Drysdale