Patriot Act Ecdriesbaugh Patriot Act

Patriot Act Ecdriesbaugh

Patriot Act

Many of the privacy issues driven by the "war against terror" can be directly linked to the Patriot Act. Title II of the Patriot Act, "Enhanced Surveillance Procedures," increased the government's authority to seize oral, wires, and electronic exchanges; to engage in pen register and trap and trace searches; to be granted access to certain business, library, and medical records; to use a single search warrant for nation-wide searches; to utilize subpoenas for electronic communications; to search records and not notify the owners; to limit the legal responsibility of persons who divulge private records to the government (a direct infringement of privacy laws); and to authorize information sharing between law enforcement and intelligence-gathering organizations (Baker, 2004). Many of these stipulations infringed upon civil liberties, and because the Patriot Act did not provide a system of checks and balances, legislators were prompted to include a sunset clause.

The sunset clause would automatically terminate some of the government's surveillance authority on or by a specific date. At this point, legislators could scrutinize how well these tools had worked, and how appropriately government officials had applied the laws (Epic, 2005). The Patriot Act's original sunset clause was set to expire on December 31, 2005, but legislators have granted several extensions since then. During this time, new rules and regulations have been incorporated into the Patriot Act in an effort to protect the civil liberties of the average American citizen.

The Patriot Act amended a number of different statutes, one of which was the Foreign Intelligence Surveillance Act (FISA). This amendment made it easier for the FBI to utilize FISA for obtaining information through pen register/trap and trace devices. These devices acquire information from senders and recipients in various types of electronic communications. The provision extended the government's surveillance authority to email, Internet communications, wire communications, and telephone conversations (Epic, 2005).

Formerly, FISA had the legal obligation to show that the surveillance was intended for "agents of foreign power" before obtaining a pen register/trap and trace order; however, the government can now acquire a pen register/trap and trace device for any reason concerning foreign intelligence information, and they no longer have to demonstrate that the device will be utilized by foreign agents or individuals participating in international terrorism. However, this section forbids the use of these devices against any U.S. citizen where the search is performed based exclusively on activities that are protected by the First Amendment (Epic, 2005).

Moreover, FISA offers significantly less protection than those that are mandatory under the federal wiretap statutes. Section 206 amends the power of FISA in reference to intelligence gathering on U.S. soil by permitting gathering of information without the due process limitations that otherwise restrict domestic law enforcement. This section also "contemporizes" the wiretap authority under FISA by stripping away the requirement that law enforcement attain a separate order for monitoring each device used by the person being investigated. This authority is most commonly described as a "roaming wiretap," which "taps" the suspect rather than a particular telephone, computer, etc. The most notable difference between conventional wiretap authority and the new FISA-based authority is that, in the past, it was mandatory that law enforcement agents determine whether the subject of a wiretap was in fact utilizing the device to be tapped. Section 206 does not include this requirement, which suggests that it may be possible for a government agency performing an investigation to ask for consent to tap all payphones within a specific geographic location if suspected terrorists happened to hang about that vicinity (Soma, Nichols, Rynerson, Maish, and Rogers, 2005).

A more critical change can be found in section 210 of the Patriot Act, which greatly expands the kind of information obtainable by federal investigators. It permits investigators to scan telephone and ISP records to find out the customer's type and length of service, how these services were funded (to include various account numbers), and Internet protocol addresses. While this authority might seem trivial and relatively harmless where individual privacy is concerned, the information acquired provides opportunities for deeper, more intrusive, investigation. Furthermore, if the person becomes aware of this evidence, there is no obligation under the Act to notify the person as to how law enforcement obtained the information. Though out-and-out electronic monitoring of private information as evidence in a terrorist-related trial is highly unlikely, it nonetheless puts the average American citizen in a position where his or her privacy is greatly compromised (Soma, Nichols, Rynerson, Maish, and Rogers, 2005).

Another section that deems careful scrutiny is Section 215 of the Patriot Act. This section allows the FBI to demand production of any "tangible things" for terrorism investigations. Vagueness and ambiguity seem to be recurring themes throughout the Patriot Act. Section 215 is exceptionally vague in terms of "what is" and "is not" fair game to FBI acquisitions. It seems that the Patriot Act is written in such a way that "anything" could be conceived as being open in the eyes of investigators, including private and confidential handwritten information, tape recordings, hard drives, and CD-ROM -- simply because they are "tangible things" (USA Patriot Improvement and Reauthorization Act of 2005).

Interestingly enough, the nation's largest telephone carriers are not protected by the Patriot Act even though the Bush administration contracted them for their domestic spying program. Two separate congressional votes rejected the telephone company's request to be granted retroactive immunity. "Most significantly, the bill does not provide immunity to telecommunications companies that participated in the president's warrantless surveillance program. We cannot even consider providing immunity unless we know exactly what we are providing immunity from. And even then, we have to proceed with great caution..." (cited in eWeek, 2007). President Bush requested Congress to offer protection to all carriers that offered to hand over client telephone and e-mail records -- often without a warrant or subpoena -- to government officials. The White House commenced warrantless surveillance activity after the September 11, 2001, terrorist attacks. Verizon, at & T, and Qwest Communications International all argue that they thought they were protected under existing federal, state, and local laws. Oddly enough, these carriers are also under a federal court order to neither admit nor refute their involvement in the program. "The full Senate will yet need to resolve the immunity issue. While I appreciate the problems facing the telecommunications companies, the retroactive immunity issue to me is not about fixing blame on the companies but about holding government accountable. Passing a law to whitewash the administration's undermining of another law would be a disservice to the American and to the rule of law..." (cited in eWeek, 2007)