USA PATRIOT Act: Civil Liberties vs. National Security

Introduction to the USA PATRIOT Act

The United States has utilized all possible means of thwarting potential terrorist attacks and eliminating terrorist elements from within its borders. Various laws have been enacted to control information flow and to curtail any risk of terrorist activity against the United States. As communications technology became more advanced, the country also needed to monitor terrorist activities carried out through communication channels including the Internet, email, and telephones. For this reason, important laws were passed that granted federal agencies increased surveillance powers.

One such law, signed in October 2001, is the USA PATRIOT Act — an acronym standing for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001." The Act not only grants increased surveillance powers to various intelligence and federal agencies but also conflicts with earlier legal protections, including those established by the First and Fourteenth Amendments. While the PATRIOT Act was 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 before September 11 and 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 likely to be obtained is relevant to an ongoing criminal investigation. It also significantly expands the authority of U.S. law enforcement to carry out surveillance and to intercept communications."

The law itself is composed of various previously existing laws that were amended to constitute the PATRIOT Act. It is a very lengthy law, consisting of 342 pages, that would have taken months or even years to receive approval from Congress under ordinary circumstances. But the September 11 attacks were no ordinary incident, and such a drastic situation required drastic measures, which resulted in quick approval of the PATRIOT Act. It took the Act only five weeks to become law, and within days it was strictly implemented.

The PATRIOT Act is a detailed law that focuses on various aspects of security and possible security loopholes. For this reason, it provides surveillance powers in all areas where a possibility of security risk exists. The fifteen laws 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)

Legislative Background and Public Response

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 the greater good of the country. If some invasion of privacy were what it would take for the government to become more vigilant and alert, then many felt that is what the government should do. But while initially almost everyone resolved to support the government, people soon became wary of the increased violation of First Amendment rights and certain other constitutional protections that resulted from the strict implementation of the PATRIOT Act. Earlier, the loss of several innocent lives combined with the possibility of further attacks had turned much of 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 who called for legislative action, the government itself appeared extremely concerned and called for amendments to existing laws, which were found to be ineffective in their pre-September 11 form. Some additional powers were needed by law enforcement agencies to detect possible security threats and eliminate them in a timely fashion.

In their attempt to grant additional powers, the House and Senate worked on two proposals, which were debated, discussed, and later combined to form the USA PATRIOT Act. When the PATRIOT Act finally appeared in its present form, it was clear that it granted more than necessary powers to law enforcement agencies, which could result in increased intrusion into the private lives of citizens. Apart from intrusion, the law also made clear that the government would not require permits or stated reasons for conducting searches and seizures — they would be based solely on the "possibility" that information gathered in this way would help make the country more secure against terrorist activities.

Various legal and social organizations and interest groups immediately identified these problems and argued against the law. The American Civil Liberties Union was one such body that expressed its concern over increased surveillance powers in a 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 legally within our borders, and also against those whose First Amendment activities are deemed to be threats to national security by the Attorney General." (2)

Key Provisions and Constitutional Concerns

The clause that has attracted the most criticism is the one that allows the government increased access to private communication such as emails, browsing activities, and telephone conversations. It is indeed a cause of concern for the public that their private lives are now more open and available to the government than ever before. Apart from this, it also appears that the government does not take into account the violation of rights it resorts to when accessing and intercepting communications. The public is obviously concerned about the possibility of their communications 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 permitted 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 stored 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 and has sparked nationwide debate on the validity of those provisions.

Conclusion

Now that we have gained a clear understanding of the various ways in which the USA PATRIOT Act violates rights granted by the Fourth, First, and Fifth Amendments, it has become obvious why this law must be rejected for its unconstitutional approach to the issues of terrorism and national security. The American public need not relinquish their rights to free expression and protection against unwarranted searches on the pretext of the greater national good. Previous laws such as Title III and FISA had already given the government sufficient latitude to conduct necessary surveillance without hurting the rights of citizens and non-citizens alike. These laws could have been expanded in scope instead of being fundamentally altered to meet the surveillance needs and requirements of law enforcement agencies.

The American public is being asked to compromise a great deal in the name of national security and is expected to give up many important rights simply because those rights allegedly add to terrorist threats. The USA PATRIOT Act clearly conflicts with many foundational legal protections, and it is important to understand the strengths of those prior laws in order to fully appreciate the weaknesses of the Act that replaced them.

References

Brigid McMenamin, "Land of the Free," Forbes, Oct. 15, 2001, at 56.

Letter from Laura W. Murphy, Director, ACLU Washington Office, and Gregory T. Nojeim, Associate Director & Chief Legislative Counsel, ACLU, to the United States Senate (Oct. 23, 2001), available at

Nancy Chang, "How Does USA PATRIOT Act Affect Bill of Rights?" N.Y.L.J., Nov. 19, 2001, at 1.

Boyd, 116 U.S. at 630.

Id. at 478 (Brandeis, J., dissenting).

389 U.S. at 361 (Harlan, J., concurring).

United States v. United States Dist. Court, 407 U.S. 297, 302 (1972).

Act of June 19, 1968, Pub. L. No. 90-351, tit. III, § 801, 82 Stat. 211.

Sinnar, Shirin. "Patriotic or Unconstitutional? The Mandatory Detention of Aliens under the U.S.A. Patriot Act." Stanford Law Review, Apr. 1, 2003.

Lee, Laurie Thomas. "The U.S.A. PATRIOT Act and Telecommunications: Privacy under Attack." Rutgers Computer & Technology Law Journal, Jun. 22, 2003.

Israel Diamonds. "Incoming U.S. Patriot Act Disadvantages Non-U.S. Dealers." Reed Business Information, Aug. 1, 2003.