United States has been utilizing and exploiting all possible means of thwarting potential terrorist attacks and eliminating terrorist elements from the country. Various laws have been enacted to control information flow and to curtail any risk of terrorism activity against the United States. With communications means becoming more advanced, the country also needed to monitor the terrorist activities carried out through communication channels including Internet, emails and telephones. For this reason important laws were passed that gave Federal agencies increased surveillance powers.
One such Act that was signed into law in October 2001 is the U.S.A. patriot Act that actually stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" that not only grants increased surveillance powers to various intelligence and federal agencies but also violate some earlier laws including First and Fourteenth Amendment. While the Patriot Act itself has been implemented to intercept possible security risks, it has been opposed on the grounds that it violates certain basic rights to privacy and assigns sweeping powers to the FBI and other law enforcement agencies.
Diamonds (2003) writes:
The Patriot Act is actually a compromise version of the Anti-Terrorism Act of 2001, which was a legislative package conceived of before September 11, which was intended to strengthen the U.S. government's defenses against terrorism. Some of the provisions of the act are relatively benign, and include the provision of assistance to victims of the September 11 attacks, increasing translation facilities and improving the arsenal of tools in the battle against Internet crime. But the law also expands the government's ability to gain access to personal information without any actual proof or even suspicion of wrongdoing, simply by noting that the information that is likely to be obtained is relevant to an ongoing criminal investigation. It also significantly expands the authority of the U.S. law enforcement authorities to carry out surveillance and to intercept communications."
The law itself is composed of various previous laws, which have been amended to constitute the Patriot Act. It's a very lengthy law consisting of 342 pages that would have taken months or even years to get approval from the Congress in ordinary circumstances. But September 11 attacks were no ordinary incident and such drastic situation required drastic measures, which resulted in quick approval of the Patriot Act. It took the Act only five weeks to become a law and within days it was strictly implemented.
Patriot Act is a detailed law that focuses on various different aspects of security and possible security loopholes. For this reason, it provides surveillance powers in all areas where possibility of security risk exists. The 15 laws which have been amended under the Patriot Act include, "the Wiretap Statute (Title III): Electronic Communications Privacy Act; the Computer Fraud and Abuse Act; the Foreign Intelligence Surveillance Act; the Family Education Rights and Privacy Act; the Pen Register and Trap and Trace Statute; the Money Laundering Act; the Immigration and Nationality Act; the Money Laundering Control Act; the Bank Secrecy Act; the Right to Financial Privacy Act; and the Fair Credit Reporting Act." (Diamonds, 2003)
Since the attacks on the twin towers in New York, Americans showed exemplary cooperation with the government and most agreed that they could sacrifice or compromise personal privacy for greater good of the country. If invasion in privacy were what it would take the government to become more vigilant and alert, then that's what the government should do. But while initially everyone resolved to support the government, people soon became slightly wary of the increased violation of First Amendment and certain other constitutional rights that resulted from strict implementation of Patriot Act. Earlier the loss of several innocent lives combined with the possibility of further attacks had turned the public in favor of increased surveillance as many felt this could lead to better and more effective security measures. "An ABC-Washington Post poll taken the day after September 11th found that two out of three Americans are willing to surrender civil liberties to stop terrorism." (McMenamin, 2001)
Apart from the general public that called for legislative action, the government itself appeared extremely concerned and called for amendment in existing laws as they were found to be ineffective in their pre-September-11 form. Some additional powers were needed by the law enforcement agencies to detect possible security threats and eliminate them in timely fashion.
In their attempt to grant additional powers, the House and Senate worked on two proposals, which were debated and discussed and later combined to form the U.S.A. Patriot Act. When the Patriot Act finally appeared in its present form, it was obvious that it granted more than necessary powers to the law enforcement agencies, which could result in increased intrusion in private lives of citizens. Apart from intrusion, the law also made clear that the government wouldn't require any permits or reasons for conducting searches and seizures and they will only be based on 'possibility' that information gathered in this way would help make the country more secure against terrorist activities. Various legal and social circles and interest group immediately detected the problems and argued against the law. American Civil Liberties Union was one such body that expressed its concern over increased surveillance powers in its letter to the Senate:
While it contains provisions that we support, the American Civil Liberties Union believes that the U.S.A. PATRIOT Act gives the Attorney General and federal law enforcement unnecessary and permanent new powers to violate civil liberties that go far beyond the stated goal of fighting international terrorism. These new and unchecked powers could be used against American citizens who are not under criminal investigation, immigrants who are here within our borders legally, and also against those whose First Amendment activities are deemed to be threats to national security by the Attorney General. (2)
The clause that has attracted the most criticism is the one that allows government increased access to private communication such as emails, browsing activities and telephonic conversations. It is indeed a cause of concern for the public that their private lives are now more available and open to the government than ever before. Apart from this it also appears that government doesn't take into account the violation of rights it would be resorting to by accessing and intercepting communication. The public is obviously concerned about the possibility of their communication and other activities being monitored by the government in the name of national security since on the one hand, their rights as individuals are being violated, while on the other, they are not expected to demand a sound reason for searches and seizures. The PATRIOT Act has given law enforcement powers that allegedly authorize them to monitor and intercept Internet activities, listen to private calls and access information saved by employers. These enhanced powers include "the ability to conduct covert searches, obtain sensitive personal records, track e-mail and Internet usage, and evade the Fourth Amendment's probable cause requirement." (3)
With the enactment of three important provisions, the Patriot Act has become extremely controversial in nature and has sparked nationwide debate on the validity of the provisions.
Prior to September 11, our surveillance laws granted search and seizure rights to the government that did not violate other important constitutional rights and provided the public protection against "unreasonable searches and seizures." However the patriot act casually ignores the provisions of First and Fourth Amendment as Lee (2003) explains: "At the heart of the Fourth Amendment is the freedom from unwarranted searches and seizures. Yet the PATRIOT Act greatly expands the scope of government authority when it comes to search warrants and subpoenas of telecommunications companies and subscribers. In particular, the PATRIOT Act allows for greater law enforcement access to ISP and cable company business records and subscriber records, as well as voicemail messages and personal communications property, such as a home computer."
Let us now see how the Patriot Act violates the First and Fourth Amendment rights. As discussed above, Fourth amendment grants explicit rights against unreasonable searches and seizures. The amendment clearly states that it is "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." In some court cases, the interpretation of this amendment evolved and various aspects of the law became clearer as ambiguities were removed. In Boyd v. United States case, (116 U.S. 616, 634-35 (1886)), the court declared the searching of private papers constituted unreasonable search under the Fourth Amendment. The court explained that "[i]t is not the breaking of [a man's] doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property... which underlies and constitutes the essence of Lord Camden's judgment." (4) In another landmark case of Fourth Amendment, Olmstead v. United States, the court ruled that only unless there had been physical invasion of…