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USA Patriot Act: An Infringement of Civil Liberties?

February 11th, 2010 Leave a comment Go to comments

With troops overseas in the Middle East, Americans are once again on edge about the possibility of terrorist attacks on U.S. soil. Now that Coalition forces are engaged in intense fighting in Iraq, the chance of an attack appears to be looming. On September 11, 2001, 19 terrorists hijacked four U.S. commercial airliners and crashed two into the World Trade Center, one into the Pentagon, and the fourth in a field in Pennsylvania (Frank 5). On this day in history Americans sat glued to their televisions and radios watching helplessly as the 110-story twin towers crumbled to the ground. In took less than two hours to change our lives and country forever (Frank 4). In the aftermath of these horrible events, the United States government found it necessary to create new laws so this sort of atrocity could never happen again. On October 26, 2001 President George W. Bush signed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, better known as the USA PATRIOT Act (Minow 1). This act grants federal officials greater authority to track and intercept communication that could possibly be a threat to national security (Doyle 1). Similarly, almost 60 years ago President Franklin Delano Roosevelt first authorized wire-tapping in order to ensure national security during WWII. From the first uses of wiretapping, to early wire-tapping laws, to the USA PATRIOT Act, and finally the controversy surrounding this new law, it is evident that the use of wire-tapping is embedded in our nations’ history and will continue to be prevalent in the future.

Contrary to what many people may believe wire-tapping is not a relatively new form of technology. Wire-tapping has been around since the beginning of telegraphic communications (Encyclopedia Britannica). Telephones were first tapped in the 1890’s, and in contemporary times electronic eavesdropping is most often preformed using two main methods. The first is “bugging” or the use of a radio transmitter which is inserted into the handset of a telephone (Encyclopedia Britannica). Another popular method of electronic eavesdropping is the use of a phone tap. A phone conversation can be heard through a tapped wire by connecting a phone to the line at another location (Encyclopedia Britannica). More specific methods of phone tapping are consensual overhear, pen register, and trap and trace. Consensual overhear is usually used by police when a kidnapping victim or blackmail victim agrees for the phone line to be tapped (Diffie and Landau 113). Pen register records all phone numbers that the phone being tapped calls, and trap and trace records all phone numbers that call a particular phone that is being tapped (Diffie and Landau 117).

It is also very difficult to prevent a phone from being tapped. One way around it, is to convey messages in writing, and transmit the message by electronic means. A sender turns the message into incoherent symbols and sends it to a receiver who then recomposes it using computer equipment. Another way of dodging wire-tapping is by using a voice scrambler (Encyclopedia Britannica).
With the advances in technology there have been similar advances in electronic surveillance. Laser beams and radios can now be used to detect conversations through glass from hundreds of feet away (Encyclopedia Britannica). Also, in recent years electronic surveillance technology has evolved to encompass digital phones, and the widely used Internet (Diffie and Landau 196). It does not appear that this latest inventions in the field of electronic surveillance will be the last because of the rapid change in technology today.

Since wire-tapping has become a common practice among law enforcement officials, in order to protect a citizen’s rights laws have been established to regulate this practice. Although wire-tapping has been used since the 1890’s it wasn’t until 1928 the Supreme Court case Olmstead vs. United States approved for its use by law enforcement officials (Encyclopedia Britannica). Later, the Federal Communications Act of 1934 defined meticulous limits as to what evidence acquired through eavesdropping is permissible in a court of law. In 1968 the Safe Streets and Crime Control Act was passed. This act allows interception of electronic communication when it suspected the information being shared is related to criminal activity. Access for this type of interception is only granted by the attorney general (Encyclopedia Britannica). Throughout history wire-taps have been used in many questionable cases, but most notably the Watergate Scandal, and the wire-tapping of Martin Luther King Jr. In 1974 it came to light that over 10,000 U.S. citizens had been spied on under this law (EFF 2). Because of the uncertain use of wire-tapping in these cases, a system of checks and balances was put in place to prevent government official from abusing their powers (E F F 2). Also in response to this problem the Church Committee was founded (Diffie and Landau 179). Many of the suggestions made by the committee later were put into law and formed some of the Foreign Intelligence Surveillance Act (FISA) (Diffie and Landau 180). FISA is widely used to detect and prevent terrorist activities in the United States. However, under this act the identities of those being wire-tapped are unknown to the public.

The most recent electronic surveillance legislation is the USA PATRIOT Act, which drastically expands the powers of FISA. Put into effect in October of 2001, it grants increased power to law enforcement and international officials, eliminating some of the checks and balances that were put into place in 1974 (EFF 1). It also seeks to close the United States borders to terrorist and eliminate those already within the country (Doyle 1). The PATRIOT Act is 342 pages in length and makes modifies over 15 different statutes (EFF 1). This document is long and complicated and contains numerous different sections which regard laws about money laundering, aid provided for the victims of terrorism, and immigration. However, in this paper the sections that will be focused on primarily are those dealing with surveillance by government officials. The first section of the PATRIOT Act that discusses surveillance is entitled The Tracking and Gathering of Communications. In this section, the Act details the three tiered system that is used to protect the confidentially of citizens, while at the same time allowing law enforcement officials the authority to identify and intercept criminal communications (Doyle 2). Basically with the three tiers the law prohibits officials from using electronic eavesdropping on telephone conversations, face-to-face conversations, and computer or electronic communication, unless it is a last resort in a criminal case. Also, the law under this system prohibits officials from accessing phone records or email held in third party storage unless a court order, warrant, or subpoena has been issued (Doyle 1). It does, however, allow officials to use trap and trace devices as well as pen registers without the proof of criminal evidence. In the PATRIOT Act each of these three tiers are modified some more drastically than others. For example, under the PATRIOT Act pen registers and trap and trace devices are permitted to be used on electronic communications, and are not limited to just telephone conversations as stated in the previous law. This means that the government can identify the source and destination of an email without ever revealing a court order or their findings (Doyle 3). Under the PATRIOT Act stored voicemail is treated like email rather than a telephone conversation. In order to access this information officials have to go through much less red tape than if the voicemail was treated like a phone conversation. This Act therefore, makes voicemails much easier to access. Previously, an intercept order was needed to disclose this information, now all that is needed is a search warrant (EFF 8). The PATRIOT Act has also made pen register and trap and trace devices “technology neutral” (Minow 1). This means that these devices are no longer restricted solely to telephones, but can now be used on the Internet. Formerly, law enforcement officials were able to obtain the numbers of incoming and outgoing by showing that they are obtaining evidence relevant to an investigation. Now under these same standards, they can obtain email headers, and URL addresses that the person under surveillance at one time or another viewed (Minow 1).

The PATRIOT Act has also created sanctions which increase information sharing between domestic law enforcement agencies and intelligence agencies. Under this section of the new law, wire-tap results as well as other information collected in criminal cases will be divulged to intelligence agencies when it is believed the information is of interest to foreign intelligence. After the September 11th attacks the FBI, CIA and other government agencies were under intense scrutiny because the American public questioned whether the attacks could have been avoided had intelligence information been shared. In hindsight, it is easy to criticize these agencies conduct, however, there are countless terrorist that have been apprehended without the publics knowledge. Everyday these agencies receive countless pieces of intel, and have to decide whether or not the information is legitimate or not. With the passing of the PATRIOT Act government agencies will increase their sharing of information and by doing so will avoid a terrorist attack.

The PATRIOT Act also includes numerous sections which pertain to the Internet. Under this law the government is now able perform electronic surveillance on anyone surfing the Internet, by simply going before a judge and explaining how continuing their surveillance relevant information to a criminal investigation can be obtained (EFF 2). For example, by entering a word or term in a search engine that the government finds suspicious, a person could be monitored by the authorities and not even be aware of it. The PATRIOT Act also expands the use of roving wire taps (Minow 1), meaning a wire tap order no longer needs to be confined to a single computer. The FBI and CIA can go from computer to computer without proving that the computers are being used by the target of the order (EFF 2). The government does not have to produce any evidence that the information or communication being monitored is relevant to a criminal investigation. The PATRIOT Act also increases the amount of information the government can obtain from internet service providers (ISPs) about users. This means that ISPs can now hand over any information to officials without a court order or subpoena. More importantly, the new law expands the type of records the government is allowed to seek with just a subpoena (EFF 3). Officials now can obtain information about the means and source of payments, which includes credit cards and bank account numbers, with out a court review (EFF 3). This Act also, greatly increases the penalties of the Computer Fraud and Abuse Act (EFF 3). The Computer Fraud and Abuse Act was first signed into law in 1984 and was amended in 1994. It makes activities that are intended to access federal computers illegal. For example, knowingly accessing a computer without authorization or diffusing data which is harmful to the computer, server, or programs are illegal activities under this law (“Computer Fraud,” 1). The PATRIOT Act increases the maximum penalty for any of the violations pertaining to this law from five to ten years for a first offense, and from ten to twenty years for the second (Doyle 3).

Under United States law the government is allowed to perform surveillance on a citizens living in the country using a variety of mechanisms (EFF 5). The law also defines two different paths which have differing proof standards and procedures depending on whether the surveillance is conducted by either domestic law enforcement or foreign intelligence agencies (EFF 5). Many of the standards of proof required to obtain surveillance privileges have been decreased by the PATRIOT Act. For example, domestic law enforcement requires probable cause for the surveillance by the standards of the Fourth Amendment. However, under the PATRIOT Act officials can now produce just a court order, and internet service providers must produce email logs and addresses of email correspondents (EFF 6). This is much lower standard than in the past.

Since the signing of the PATRIOT Act in October of 2001, there have been numerous criticisms as well as support of the new law. The American Civil Liberties Union (ACLU) feels that many aspects of the PATRIOT Act violates Americans’ civil liberties, and also destroys the governments system of checks and balances (O’Meara 2). For example, the ACLU believes that the new law heavily violates the Fourth Amendment which is the prohibition of unreasonable searches and seizures. Under the PATRIOT Act the FBI is granted access to sensitive medical, financial, educational, and mental health records without providing any information that a possible crime being committed or has any relevance to terrorism (O’Meara 2). Also, the Act has numerous search and seizure provisions which are not limited just to terrorism. This means that the houses of innocent American citizens can be searched without a warrant (O’Meara 5). Other civil liberty groups are also discontent with the PATRIOT Act. John Whitehead, the founder and president of the Rutherford Institute, which advocates civil liberties and human rights, feels that “the problem with the PATRIOT Act […] is that that 99.9 percent of the people in the country who are not terrorists will be impacted by these laws” (O’Meara 3). The Muslim Public Affairs Council also finds the law to be unconstitutional. A council board member Gasser Hathout says statistics show that since the PATRIOT Act was approved the number of federal subpoenas for telephone and Internet records have doubled every month since the law was passed and now reaches into the thousands (“Patriot Act denounced,” 1 ). Council board chairman Omar Ricci adds, “The PATRIOT Act is the biggest attack on democracy in America right now” (“Patriot Act denounced,” 1).
Even though many groups have condemned the PATRIOT Act, it also has its supporters. Robert Turner, associate director of the Center for National Security Law at the University of Virginia, feels that the law may infringe on civil liberties, however, he believes that it has prevented terrorist attacks (Roth 2). Although it is unknown whether or not Turners hypothesis is factual, a Justice Department report to Congress in the fall of 2002 suggested that expanded surveillance allowed by the new law was used to investigate kidnappers, drug dealers, identity thieves and murders, none of whom were involved with terrorism (Roth 2). Even though the law was used not to combat terrorism, many Americans would have a hard time arguing that the powers granted by the PATRIOT Act are helping to make are country safer from not only foreign but domestic criminals as well. Another supporter of the law is Douglas Kmiec, dean of the Catholic University of Law in Washington. He adds that the only Americans who should be worried about the law violating their freedoms are those who are involved in suspicious activity (Roth 3). The law is not designed to spy on citizens who are not engaging in these types of behaviors. Concerning the interests of law enforcement agencies, they are undoubtedly in favor of the law because of the expanded surveillance powers. This makes it easier for them to investigate potential threats to national security. Looser regulations also allow criminals to prosecute criminals more easily because more evidence obtained from wiretapping is allowed in court.

Since the beginning of telecommunications wiretapping has been used for a variety of reasons. In 1928 when it was approved for use in criminal cases it greatly helped law enforcement to catch and prosecute criminals. Since that time legislation has been created to keep citizens safe from law enforcement officials’ misuse of electronic surveillance powers. After the September 11th terrorist attacks government officials found it necessary to create a new piece of legislation that update previous laws to comply with new technology and granted them power to fight global terrorism. The United States has not been struck with a terrorist attack in almost two years, which may be accredited to the PATRIOT Act as well as the destruction of the Taliban. Even though this law has been met with much criticism, in order to keep citizens safe in times of war Americans must be willing to exchange some civil liberties for benefit of national security.

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