In her latest guest column in the New York Times, Dahlia Lithwick has fallen for one of the often-alleged-but-still-false claims about the Patriot Act. She writes:

  [W]hile I'm not reflexively opposed to the entire Patriot Act, two provisions do serve more to quell protest than terrorism.
  One section invented a broad new crime called "domestic terrorism" - punishing activities that "involve acts dangerous to human life" if a person's intent is to "influence the policy of a government by intimidation or coercion." If that sounds as if it's directed more toward effigy-burning, or Greenpeace activity, than international terror, it's because it is. International terror was already illegal.

  I hear this one all the time. The trouble is, it's not true. The Patriot Act does not create a crime of "domestic terrorism." In fact, there is no such crime. The Patriot Act created a statutory definition of the phrase "domestic terrorism" in 18 U.S.C. 2331(5), which was added to the preexisting definition of "international terorrism" found in 18 U.S.C. 2331(1). The Patriot Act created this statutory definition to provide a common meaning for the use of the phrase "domestic terrorism" whenever it is used in the United States Code, for whatever reason. The definition states:

the term ''domestic terrorism'' means activities that -
  (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
  (B) 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;
  and
  (C) occur primarily within the territorial jurisdiction of the United States.

  Perhaps, as an abstract matter, this definition is too broad; I tend to think it is. But since it's only a statutory definition, not a crime, the question is how the definition is used. As far as I know, the definition of "domestic terrorism" is used in the context of substantive criminal law only in one statute, 18 U.S.C. 1028. This statute prohibits identity document fraud, such as making fake IDs. The part about domestic terrorism doesn't actually expand the scope of criminality in this statute. Rather, it allows a court to impose a higher statutory maximum penalty if an act of identity document fraud "is committed to facilitate an act of domestic terrorism." As a result, making a fake ID for a college student is punished with a relatively small sentence; making a fake ID to further a terrorism crime is treated more seriously.

   Maybe it's just me, but that doesn't "sound[] as if it's directed . . . toward effigy-burning, or Greenpeace activity[.]" It's an interesting irony, though; a number of the claims that the Patriot Act chills speech are based on the erroneous belief that this statutory definition is a criminal prohibition. Strange, isn't it?

  P.S.: If "domestic terrorism" is used elsewhere in defining a criminal law under the Patriot Act and I am just missing it, please let me know. I ran a Westlaw "USC" database search for the phrase, and Section 1028 was the only relevant section that popped up.

  UPDATE: Readers Marty Lederman and Doug Klunder write in to note that although "domestic terrorism" is not a crime, the definition does have some important implications in the context of evidence collection and dissemination and civil forfeiture. (I missed these at least in part because I ran my query for "domestic terrorism," and the Code often uses the phrase "domestic and international terrorism" -- joining domestic terrorism and international terrorism -- instead.) For example, 50 U.S.C. 403-5d allows for the sharing of information relating to acts of "domestic terrorism" gathered in criminal investigations to other areas of government:

[I]t shall be lawful for information revealing a threat of actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power, domestic or international sabotage, domestic or international terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by an agent of a foreign power, within the United States or elsewhere, obtained as part of a criminal investigation to be disclosed to any appropriate Federal, State, local, or foreign government official for the purpose of preventing or responding to such a threat.

  The most troubling use of the definition appears to be in the civil forfeiture context. 18 U.S.C. 981(g) expands the civil forfeiture statute so that assets "of any individual, entity, or organization engaged in planning or perpetrating any act of domestic or international terrorism (as defined in section 2331) against the United States, citizens or residents of the United States, or their property, and all assets, foreign or domestic, affording any person a source of influence over any such entity or organization" are subject to forfeiture. I wold have to look at this more carefully to know for sure, but at first blush it does seem like a troublesome use of the "domestic terrorism" definition. I'm generally unenthusiastic about broad civil forfeiture laws, even if rarely or never enforced, and this one seems particularly broad.