Is the Patriot Act Constitutional? Eddie Nicolau Beloit College, Beloit, WI

1. Introduction In the past few years, the current United States Government has enacted a series of precautionary laws known as the Patriot Act. Passed after the September 11 terrorist attacks, the Act expands the authority of U.S law enforcement for the purpose of fighting terrorist acts. These new laws exist to protect United States citizens from danger and the global fear of threat. However, of the ten titles that make up the act, many of them encroach upon the democratic rights of Americans. Supporters of the Patriot Act claim that these provisions are necessary in fighting the War on Terrorism, while its detractors argue that many of the sections, especially in Title II, infringe upon individual and civil rights. In general, the Title expands Federal Agencies' powers in intercepting, sharing, and using private telecommunications, especially electronic communications. In the last State of the Union Address, President Bush announced the further extension of the act in which he intends monitor and record international phone calls made within the United States, preventing potential terrorist communication. As it is, the surveillance policy targets isolated criminal activity, giving authorities access to voicemail – they no longer must apply for a wiretap order and instead just apply for a normal search warrant. The FBI may monitor any library or campus facility that someone may be using, and do not have to specify which facility they are monitoring. Groups such as the Electronic Privacy Information Center oppose Section 217, which deals with the interception of computer trespasser communications, which they claim has little to do with legitimate investigations of actual terrorism. While many organizations exist who are against the act (American Civil Liberties Union, Electronic Frontier Organization, American Library Association…), there are also many firm supporters. Legislators argue that the attacks of September 11th are due to a lack of enforcement and stringency on certain US policies. And though every American citizen enjoys his or her own privacy, there is simply no alternative more effective than the Patriot Act to preventing terrorism. The Act’s relevance relates directly to the events of September 11th and the threat of terrorism that exists within the country. A medium may exist between the two parties, those who want virtually no surveillance/protection and those who are responsible for legislating for the sake of potential terrorist threats. A realistic halfway point could be found based on three key elements of the problem: 1) the circumstances and conditions of the state (that saw the Patriot Act necessary in the first place), 2) the statements of non-government organizations that both oppose and encourage the Act based on the Constitution, and 3) the actual sections of Title II (listed below). With this information, I hope to come to an agreement that both sides can accept. A result must be negotiated that is just and reflects a fair and democratic state. Abstract • The Players – Down with the Patriot Act! • NGOs concerned with personal liberties and privacy, (represented by the Electronic Privacy Information Center) • U.S. Citizens concerned with privacy • Citizens who feel the right to know disclosed information that affects/includes/violates them • Citizens looking for clearer and more effective legislation. • The Interests: To form a more accurate, informative, and respectful government • To amend the Patriot Act to be truer reflection of the U.S. Constitution • To achieve a more transparent democracy (accessible, necessary information about the nation with as little disclosure as possible) • To have the surveillanced/monitored information filtered through a judiciary system before being acted upon by the government. • To define clearly “acts of terror” • To have specific rules to make application of the Patriot Act less ambiguous. • The Players – The Patriot Act is a necessity! • Legislators and government officials (represented by the NSA) • U.S. Citizens concerned with national security • The National Security Agency • The current Presidential Administration • Any American (civilian, agent, or otherwise) interested in personal and national safety • The Interests: Protecting the United States from acts of terror • Preventing future domestic attacks • Preserving fundamental liberties of American Citizens • Maintaining the integrity of the nation in the international scene • Keeping track of internal affairs and communications so they are not used to harm civilians. • Not disclosing vital information for the greater safety of Americans However, the Patriot Act infringes upon or conflicts with several amendments to the Constitution. While detractors realize the severity of terrorism, they also believe American entitlements to a certain amount of privacy and to adequate information about what is happening in the White House. Is the Patriot Act Constitutional?Eddie NicolauBeloit College, Beloit, WI • Objective Criteria – The Facts • Constitution of the United States • 4th Amendment - guards against unreasonable searches and seizures, and no warrants shall be issued without just cause. • In Trupiano vs. United States (1948), the Supreme Court held that "a search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time • Katz v. United States, (1967) was a United States Supreme Court decision that extended the Fourth Amendment protection from unreasonable searches and seizures to protect individuals in a telephone booth from wiretaps by authorities without a warrant. • 14th Amendment - No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. • (1) Muktar Al-Bakri, a member of the “Buffalo Six” terrorists within America, sent an obscure e-mail describing an upcoming "big meal" which would have used explosives. Al-Bakri told the FBI he had overheard talk of an attack and had used code because he was afraid Al-Qaeda was monitoring his e-mail. • While some think it would be better for the shared information to be filtered through a judiciary system, supporter Viet Dinh believes that (4) “If a federal prosecutor learned during grand jury testimony that terrorists were planning to detonate a bomb in Manhattan in the next 30 minutes, Federal Rule of Criminal Procedure 6 prevented him from immediately notifying national security officials not directly participating in the investigation.” • Patriot Act • Removal of court-ordered prohibitions against police agencies spying on domestic groups. • The FBI may conduct searches and surveillance based on intelligence gathered in foreign countries without a court order. • Section 223 allows any party who has had their rights violated due to the illegal interception of communications to take civil action against those who undertook the illegal surveillance. • The Environmental Protection Agency would be prevented from releasing "worst case scenario" information to the public about chemical plants • Prohibition of any public disclosure of the names of alleged terrorists, including those who have been arrested. • Options • Completely rewrite Section II of the Patriot Act with both parties present • Allow surveillance, but notify those being monitored if there is no real “just cause” • Clearly define “acts of terror” and “just cause” for investigation • Selected Sections of Title II • This document is an immense piece of legislation, so here is a list of the most controversial sections of Title II. • Section 212 stopped communication providers from disclosing the contents of communications with another party, unless it is an approved Government Agency. • Section 203 (Authority to share criminal investigation information) modified the Federal Rules of Criminal Procedure with respect to disclosure of information before the grand jury. Section 203(a) allowed the disclosure of matters in deliberation by the grand jury, which are normally otherwise prohibited • Section 209 (Seizure of voice-mail messages pursuant to warrants) removed the text "any electronic storage of such communication" from title 18, section 2510 of the United States Code. Before this was struck from the Code, the U.S. government needed to apply for a title III wiretap order before they could open voicemails, however now the government only need apply for an ordinary search • Section 214 (Pen register and trap and trace authority under FISA) allows pen registers, trap, and trace surveillance to be authorized to allow government agencies to gather foreign intelligence information. Where the law only allowed them to gather surveillance if there was evidence of international terrorism, it now gives the courts the power to grant trap and traces to any “suspects of terrorism” • Section 217 (Interception of computer trespasser communications) firstly defines the following term: • Computer Trespasser - a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and • does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer Ultimately, both parties are interested in one thing – the upholding of American liberty and security. The Electronic Privacy Information Center does not want to see harm come to the country that gave our citizens liberty in the first place, just as legislators are not interested in stripping away the rights from the people they represent. But the solution requires sacrifices on both sides. We cannot monitor and document every piece of personal information without telling the people, and at the same time we must let government agents for national security do their job to protect us. Instead of changing the Constitution with the Patriot Act, I believe it is possible to change the Patriot Act to be more in accordance with the Constitution. Section II of the Act needs to be discussed by those in charge of security and those who feel violated by it, and changed into something that more efficiently legislates and represents the United States of America. The Patriot Act is our government’s legislative strategy for a safer nation. Domestic awareness is necessary in times of war, and every democratic action has been taken to preserve the fundamental personal liberties while being on a heightened alert for danger in post-9/11 America. References US Gov. "USA Patriot Act Information." Financial Crimes Enforcement Network http://www.fincen.gov/pa_main.html EPIC Litigation "Court Cases" Electronic Privacy Information Center http://www.epic.org/privacy/litigation/ Department of Justice “Dispelling Some of the Major Myths about the USA PATRIOT Act” http://www.lifeandliberty.gov/subs/u_myths.htm “USDOJ: Assistant Attorney General Viet D. Dinh” www.usdoj.gov/olp/vietdinh.htm