The PATRIOT Act vs. the Fourth Amendment: Privacy at Stake

Introduction: The Fourth Amendment and Its Origins

The Fourth Amendment was created in 1791 primarily to end the existence of general warrants, which the American colonists hated and feared. These warrants were used by the English government to conduct door-to-door searches and mass arrests, often as a coercive method for achieving social and political goals (Maclin and Mirabella, 2011, p. 1052). With this history in mind, the text of the Fourth Amendment makes perfect sense:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (FindLaw, 2011)

The wording of the Fourth Amendment represents a straightforward attempt to eliminate general warrants and thus protect personal privacy — a goal that no one seriously disputes — but other concepts within the text have been the source of much debate ever since it was written. The phrase "probable cause" is not well defined, either in the Amendment itself or in the historical documents created around the time the Constitution was written (Maclin and Mirabella, 2011, p. 1057–1059). Depending on the judge or magistrate presiding during the early days of the republic, "probable cause" could have been defined anywhere between "likely" and "credible." Today, the meaning of "probable cause" is modified by the concept of reasonableness, which is defined both by public norms and by the level of interest the state has in conducting a search and seizure (Ohm, 2010, p. 1517).

There are even some today who would prefer to interpret the Fourth Amendment literally, in the absence of historical context (Maclin and Mirabella, 2011, p. 1061). Although this may seem reasonable on the surface, such an interpretation would imply that police are not required to obtain a warrant prior to conducting a search and seizure if a test of reasonableness can be met. The danger in taking this approach is that it transfers authority for granting searches and seizures from the judiciary to the police officers patrolling the streets. Without the check against arbitrary intrusions that a judicial warrant provides, general warrants would likely reemerge as a method for harassing and intimidating segments of the population. Some would argue that has already happened in post-9/11 America (Totenberg, 2011, para. 9).

Fourth Amendment Interpretations Prior to September 11, 2001

In 1886, the U.S. Supreme Court held in Boyd v. United States that it is not the manner of state intrusion into personal lives that matters, but that the invasion occurred at all (Mell, 2002, p. 382–384). The Court emphasized that the expectation of privacy was not limited to a person's home but also encompassed all aspects of their lives. This decision was overturned in part in 1928 when the Court considered Olmstead v. United States and found that wiretaps capture nothing physical or tangible and therefore cannot constitute a search or seizure under the Fourth Amendment. The "physical" requirement survived until 1967, at which time the Court reverted to its 1886 stance by holding in Katz v. United States that a person having a phone conversation in a public phone booth had a "reasonable" expectation of privacy (Mell, 2002, p. 386–388).

Obtaining a warrant in advance was also emphasized by the Court in Katz, which held that "antecedent justification" is required for engaging in a search (Mell, 2002, p. 386–388). The only exceptions to the antecedent justification requirement recognized by the Court over the years are searches incident to an arrest, stop-and-frisk searches, automobile searches, searches at ports of entry, and searches of closed containers in automobiles that have been lawfully stopped.

Modern interpretations of the Fourth Amendment have become increasingly important as advances in technology provide multiple avenues of non-physical intrusions into personal lives. In Kyllo v. United States, the Supreme Court held that technology which enhances human senses — such as thermal imaging — crosses the line from public to private, because a person walking down the street would not be able to detect differences in the temperature of a building's roof (Mell, 2002, p. 389–392). In contrast, the Court upheld the lower court's finding in California v. Ciraolo that aerial surveillance or photography does not fall under Fourth Amendment protection.

Post-9/11 Fourth Amendment Interpretations

This history of careful and increasingly complex Fourth Amendment jurisprudence was effectively derailed by the passage of the USA PATRIOT Act on October 26, 2001, just 46 days after the tragic events of September 11, 2001. The Act was designed to give the executive branch additional tools with which to fight the threat of terrorism. The hastiness with which the Act was made into law alarmed members of Congress enough that they wrote four-year sunsets into 16 of the more controversial provisions (Herman, 2006, p. 67). In the ten years since the PATRIOT Act was enacted, those sunsets failed to eliminate a single provision (Johnson, 2011), despite a significant groundswell of public support for eliminating many provisions or the Act itself (Bill of Rights Defense Committee, 2007).

Probably one of the more controversial changes brought about by the PATRIOT Act is the relaxing of certification and justification requirements for National Security Letters (NSLs; Mell, 2002, p. 393–396). NSLs were originally intended to be used in urgent foreign counter-intelligence cases when time was of the essence. Justification for issuing an NSL depended on the ability to articulate specific facts, and certification required personal authorization by the Director or Assistant Deputy Director of the FBI (Garlinger, 2009, p. 1110–1111). Under the PATRIOT Act, NSLs can now be certified by a field agent, justified by mere "relevance," and utilized for an expanded number of domestic situations.

The relaxing of NSL criteria may increase the possibility that general warrants will reemerge. Between 2003 and 2006, for example, the FBI issued 192,500 NSLs (Dilanian, 2011, para. 20) — considerably more than the few thousand per year issued prior to 9/11. After the Inspector General revealed how prevalent their use had become, and that more than a few were issued fraudulently, the number used per year dropped dramatically to 14,788 covering 6,114 people in 2009 (Yost, 2011, para. 3). Unfortunately, the downward trend reversed the following year, when 24,287 NSLs were issued for 14,212 people.

NSLs are used by the FBI to gather information from third parties — information that is not protected by the Fourth Amendment because it was voluntarily provided to those third parties (Garlinger, 2009, p. 1112–1113). A number of federal statutes previously protected this information from unauthorized access (Mell, 2002, p. 393–394), but the PATRIOT Act contained provisions that relaxed or eliminated those protections. The information being collected includes bank statements, telecommunication records, credit reports, school records, and all information held by internet providers and online third parties. Bringing information from all these disparate sources together in one place allows an intelligence or law enforcement agency to create revealing dossiers on private citizens. The FBI's Investigative Data Warehouse contains over 1.5 billion records, including information collected through more than 300,000 NSLs (Murray and Crockford, 2011, para. 16).

Conclusion: Constitutional Implications

The Fourth Amendment was penned to end the practice of general warrants, which were used by the state to arbitrarily search, harass, and intimidate individuals and groups. The solution the Framers devised was to require specific warrants before a search and seizure can be conducted, to demand a probable cause justification, and to shift the authority to issue such warrants from the police and military to judges and magistrates. Although the Supreme Court has struggled with defining probable cause, the other core principles of the Fourth Amendment — privacy protection, antecedent justification, and judicial oversight — have been reaffirmed repeatedly over the past 220 years.

The PATRIOT Act has marginalized all of these principles. The relaxing of certification and justification criteria for NSLs has effectively reduced probable cause justification to merely "relevant," shifted the authority for issuing search-and-seizure warrants from the judiciary to FBI field agents, and undermined the spirit of privacy protection encoded in the Fourth Amendment, since private matters are increasingly conducted online. Although information that we provide to a third party is not protected under the Fourth Amendment, the act of doing so should be according to Katz. The FBI should therefore be required to obtain a warrant before learning what a private citizen is doing online, because a personal computer inside a home or a public library is equivalent to the phone booth in Katz.

The expectation of privacy is modified by the concept of "reasonableness," and Americans are often reminded by news media that online activities should be considered public. The purchase of antivirus, antispyware, and encryption software suggests that some measure of privacy is actively sought by the American public — but is it reasonable to expect that privacy? Justice Ginsburg of the D.C. Circuit Court of Appeals held that it is reasonable to expect that a private citizen's every move for 24 hours or a month not be tracked and recorded without a warrant (Rosen, 2011). Moreover, it would be impossible to engage in that level of surveillance without technological enhancements. Whether the U.S. Supreme Court would agree with Justice Ginsburg was set to be determined, as the Court reviewed the arrest and conviction of alleged drug kingpin Antoine Jones after a hidden GPS device was used to track his private automobile movements for an entire month. Arguments were heard before the Supreme Court on November 8, 2011, and Justice Sotomayor asked prosecutors how a hidden, warrantless GPS tracking device differs in any meaningful way from a general warrant (Totenberg, 2011, para. 9).

Even if the PATRIOT Act was enacted in good faith to protect Americans from terrorist attacks, the effect was to eliminate Fourth Amendment privacy protections and thus undermine the very spirit of American citizenship. The PATRIOT Act is therefore unconstitutional with respect to the relaxation of privacy protections.