The Patriot Act and Civil Liberties
Mr. Meizys
The Patriot Act: Key Controversies
by Larry Abramson and Maria Godoy
Below, NPR examines the act's most controversial provisions:
Information Sharing
Sec. 203(b) and (d): Allows information from criminal probes to be shared with
intelligence agencies and other parts of the government.
Pro:
Supporters say the provisions have greatly enhanced information sharing within the FBI,
and with the intelligence community at large.
Con:
Critics warn that unrestricted sharing could lead to the development of massive databases
about citizens who are not the targets of criminal investigations.
Information Sharing
Sections 203(b) and 203(d) of the Patriot Act are at the heart of the effort to break down
the "wall" that used to separate criminal and intelligence investigations. The Justice
Department has frequently blamed the wall for the failure to find and detain Sept. 11
hijackers Nawaf al-Hazmi and Khalid al-Midhar prior to the attacks. CIA agents had
information that both men were in the United States and were suspected terrorists, but the
FBI says it did not receive that information until August 2001.
U.S. officials also blame the wall for the failure to fully investigate Zacarias Moussaoui,
who has since pleaded guilty in connection with the Sept. 11 plot. The government says
that existing procedures made investigators afraid of sharing information between the
intelligence and criminal sides of the probe. Supporters say these provisions have greatly
enhanced information sharing within the FBI, and with the intelligence community at
large.
Civil libertarians say the failure to share information was largely a result of incompetence
and misunderstanding of the law. They say investigators were always allowed to share
grand jury information, which is specifically authorized by this section. They warn that
the scope of the Patriot Act language is far too broad and encourages unlimited sharing of
information, regardless of the need.
Critics say that investigators should have to explain why information is being shared, and
that only information related to terrorism or espionage should be released. They warn that
unrestricted sharing could lead to the development of massive databases about innocent
citizens.
Roving Wiretaps
Sec. 206: Allows one wiretap authorization to cover multiple devices, eliminating the
need for separate court authorizations for a suspect's cell phone, PC and Blackberry, for
example.
Pro:
The government says roving wiretaps are needed to deal with technologically
sophisticated terrorists.
Con:
Critics say the language of the act could lead to privacy violations of anyone who comes
into casual contact with a suspect.
Roving Wiretaps
The Justice Department has long complained about restrictions that required separate
court authorizations for each device used by the target of an investigation, whether it's a
computer terminal, a cell phone or a Blackberry. This provision of the Patriot Act
specifically allows "roving wiretaps" against suspected spies and terrorists. The
government says it has long had this type of flexibility in criminal cases, and that such
authority is needed in dealing with technologically sophisticated terrorists.
Surveillance experts point out, however, that criminal wiretaps must "ascertain" whether
the person under investigation is going to be using the device before the tap takes place.
Civil liberties groups say the language of the Patriot Act could lead to privacy violations
of anyone who comes into casual contact with the suspect. They want Congress to require
investigators to specify just which device is going to be tapped, or that the suspect be
clearly identified, in order to protect the innocent from unwarranted snooping.
Access to Records
Sec. 215: Allows easier access to business records in foreign intelligence investigations.
Pro:
The provision allows investigators to obtain books, records, papers, documents and other
items sought "in connection with" a terror investigation.
Con:
Critics attack the breadth of the provision, saying the law could be used to demand the
reading records of library or bookstore patrons.
Access to Records
Probably the most hotly debated provision of the law, Section 215 has come to be known
as the "libraries provision," even though it never mentions libraries or bookstores. Civil
liberties groups attack the breadth of this section -- which allows investigators to obtain
"any tangible thing (including books, records, papers, documents and other items)," as
long as the records are sought "in connection with" a terror investigation.
Library groups said the law could be used to demand the reading records of patrons. But
the government points out that the First Amendment activities of Americans are
specifically protected by the law. The Justice Department has released previously
classified statistics to show the law has never been used against libraries or bookstores.
But the act's critics argue that there's no protection against future abuse.
Civil liberties groups have proposed numerous amendments: special protections for
libraries and bookstores; a requirement that investigators explain the reason the records
are sought; and an end to the "gag rule" that prohibits people who receive a 215 order
from talking about it with anyone. The Justice Department has agreed that recipients can
consult with an attorney and is open to an amendment that specifies this right. But the
government says the controversy over this provision is an overreaction, and that this
section merely expands longstanding access to certain business records.
Foreign Intelligence Wiretaps and Searches
Sec. 218: Lowers the bar for launching foreign intelligence wiretaps and searches.
Pro:
Allows investigators to get a foreign intelligence wiretap or search order, even if they end
up bringing criminal charges instead.
Con:
Because foreign intelligence probes are conducted in secret, with little oversight, critics
say abuses could be difficult to uncover.
Foreign Intelligence Wiretaps and Searches
Criminal investigators have a high bar to reach when asking for permission to wiretap or
search a suspect's home. The bar is lower in counterterror or counterintelligence probes,
where investigators must only prove the suspect is an "agent of a foreign power."
Previously, investigators had to show that the "primary purpose" of the order was to
gather foreign intelligence; the Patriot Act lowered that requirement to a "significant
purpose." The government said this change takes away another brick in "the wall"
separating criminal and intelligence probes: It allows investigators to get a foreign
intelligence wiretap or search order, even though they might end up bringing criminal
charges.
Civil liberties groups insist that "the wall" rose up through misunderstandings, and that
there was no hard barrier against launching a criminal probe against someone being
investigated as a spy or terrorist. They point to a 2002 ruling by the Foreign Intelligence
Court of Review that buttresses this point.
But critics say the Patriot Act creates a new risk in Section 218 -- that investigators will
too easily use spying and terrorism as an excuse for launching foreign intelligence
wiretaps and searches. They point to the fact that the number of intelligence wiretaps now
exceeds the number of criminal taps. Since these probes are conducted in secret, with
little oversight, abuses could be difficult to uncover. Civil liberties groups say one
antidote would be to require that the Justice Department release more information about
foreign intelligence investigations.
“Sneak & Peek” Warrants
Sec. 213: Allows "Sneak and peek" search warrants, which let authorities search a home
or business without immediately notifying the target of a probe.
Pro:
Supporters say this provision has already allowed investigators to search the houses of
drug dealers and other criminals without providing notice that might have jeopardized an
investigation.
Con:
Critics say the provision allows the use of "sneak and peek" warrants for even minor
crimes, not just terror and espionage cases.
“Sneak & Peek” Warrants
This section allows for "delayed notice" of search warrants, which means the FBI can
search a home or business without immediately notifying the target of the investigation.
The Justice Department says this provision has already allowed investigators to search
the houses of drug dealers and other criminals without providing notice that might have
jeopardized an investigation. Investigators still have to explain why they want to delay
notice, and must eventually tell the target about the search.
Critics say that investigators already had the power to conduct secret searches in
counterterror and counterespionage probes. The Patriot Act, they say, authorized the use
of this technique for any crime, no matter how minor. They say that "sneak and peek"
searches should be narrowly limited to cases in which an investigation would be seriously
jeopardized by immediate notice. Legislation to cut off funding for such searches passed
the House in 2003. However, this provision does not face a sunset as other controversial
provisions do, so it may be harder for opponents to amend it.
Material Support
Sec. 805: Expands the existing ban on giving "material support" to terrorists to include
"expert advice or assistance."
Pro:
Supporters say it helps cut off the support networks that make terrorism possible.
Con:
Critics say the provision could lead to guilt by association.
Material Support
The antiterrorism law passed in 1996, in the aftermath of the Oklahoma City bombing,
outlawed providing "material support" to foreign terrorist organizations, and expanded
the definition of support to include "personnel" and "training." Section 805 of the Patriot
Act extended that ban to "expert advice or assistance."
The Justice Department has said this expansion is critical to cutting off the networks of
support that make terrorism possible. But many legal scholars -- and even some judges -contend the provision is vague. They say it will lead to guilt by association and might
criminalize unwitting contact with a terrorist group.
Opponents also argue that it stifles free speech, by raising fears that any charitable
contribution could somehow be linked to a terrorist group by the Justice Department, and
then construed as "material support." Courts have differed on the constitutionality of
these efforts to cut off the "lifeblood" of terrorism. Some have ruled they are
unconstitutionally vague, others have upheld these laws. In response, Congress tried to
tighten the definitions in the 2004 Intelligence Reform and Terror Prevention Act. But the
language in that law is also being challenged in court.
The 'Lone Wolf' Provision
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 allows
intelligence investigations of lone terrorists not connected to a foreign nation or
organization.
While not part of the Patriot Act, this provision also sunsets on Dec. 31 and is under
review. Civil liberties groups say the provision could sweep in protesters and those
suspected of involvement in domestic terrorism. Language passed by the Senate
Intelligence Committee would make this section permanent.
BALANCE OF PRIVACY VS. SECURITY: A HISTORICAL
PERSPECTIVE OF THE USA PATRIOT ACT
John T. Soma Maury M. Nichols Stephen D. Rynerson Lance A. Maish Jon David Rogers
Copyright (c) 2005 Rutgers Computer and Technology Law Journal; John T. Soma; Maury M. Nichols; Stephen D.
Rynerson; Lance A. Maish; Jon David Rogers
A Brief History of the Fourth Amendment and Privacy
Ratified in 1791, the Fourth Amendment provides a framework of privacy protections for
personal communication by safeguarding individuals from governmental intrusion.
The Fourth Amendment states: The right of 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.5
The U.S. Supreme Court first recognized a right to privacy as being contained within the
Fourth Amendment in the 1886 case of Boyd v. United States.6 The case involved a seizure of plate
glass thought to be in violation of customs laws.7 The government ordered Boyd to produce invoices
associated with the glass.8 The defendant argued that he could not be compelled to permit a search
of his home in order to possibly produce evidence (in the form of the invoice) to be used against
him.9 The Court agreed.10
Utilizing principles of English common law, Justice Bradley quoted Lord Camden as stating:
Every invasion of private property, be it ever so minute, is a trespass . . . Papers are the owner’s
goods and chattels; they are his dearest property; . . . It is not the breaking of his doors, and
rummaging of his drawers, that constitutes the essence of the offense; but it is the *290 invasion of
his indefeasible right of personal security, personal liberty and private property . . .11
Thus, the Court took the position that it is not only inappropriate to trespass in a person’s home; but
it is also inappropriate to trespass upon that person’s liberty through inspection of his private (paperbased) communications.
In 1928, the Court was asked to consider the constitutionality of what would now be termed
electronic surveillance in the case of Olmstead v. United States.12 The question presented was
whether the use of evidence gained from a wiretap of a private telephone conversation violated the
Fourth (and Fifth) Amendments.13 Here the Court reasoned that “[t]he well known historical
purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to
prevent the use of governmental force to search a man’s house, his person, his papers and his effects,
and to prevent their seizure against his will.”14 Therefore, the Court held that wiretapping was not
an invasion of privacy and thus the act of wiretapping did not violate the Fourth Amendment.15
Justice Brandeis presented a vigorous dissent to the Court’s ruling. He stated that “[d]iscovery
and invention have made it possible for the Government, by means far more effective than stretching
upon the rack, to obtain disclosure in court of what is whispered in the closet.”16 He went on to
predict:
The progress of science in furnishing the Government with means of espionage is not likely to stop
with wiretapping. Ways may some day be developed by which the Government, without removing
papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose
to a jury the most intimate occurrences of the home.17 *291 Indeed, Justice Brandeis explained,
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of
happiness . . . . They conferred, as against the Government, the right to be let alone - the most
comprehensive of rights and the right most valued by civilized men.”18 He warned that
“[e]xperience should teach us to be most on guard to protect liberty when the Government’s
purposes are beneficent.”19
Following the Court’s decision in Olmstead, Congress passed the Communications Act of
1934.20 The pertinent part of § 605 states:
[n]o person not being authorized by the sender shall intercept any radio communication and divulge
or publish the existence, contents, substance, purport, effect or meaning of such intercepted
communication to any person . . . . No person having received such intercepted radio communication
or having become acquainted with the contents, sub-stance, purport, effect or meaning of such
communication (or any part thereof) knowing that such information was intercepted, shall divulge or
publish the existence, contents, substance, purport, effect, or meaning of such information (or any
part thereof) or use such communication (or any information therein contained) for his own benefit
or for the benefit of another not entitled thereto.21
However, in the 1942 case Goldman v. United States, the Court held that the use of a
“detectaphone”22 was not a violation of the Communications Act and thus not a violation of the
Fourth Amendment as, “there was neither a ‘communication’ nor an ‘interception’ within the
meaning of the [Communications] Act.”23
In Silverman v. United States, the Court construed the concept of trespass to conclude the
government’s use of a “spike mike” was unconstitutional because it penetrated into the subject’s
house in *292 order to make contact with a heating duct, whereby the duct would serve as a
conductor of sounds within the house.24 This decision was later expanded in Berger v. New York,
where the Court struck down a New York statute authorizing electronic eavesdropping by law
enforcement agencies that were investigating certain crimes.25 The Court stated that in addition to
meeting the Fourth Amendment requirement of “particularity,” law enforcement officials would be
required to delineate in the warrant specific details regarding the person, place or thing to be seized,
as well as the nature of the crime in question and the type of conversation that police sought to
obtain.26 Importantly, the Court reasoned that there should be “precise and discriminate” procedures
in place to minimize the unauthorized interception of conversations that were unconnected to the
crime that was under investigation.27 In addition, the Court held that there must be a showing of
“exigent circumstances” to overcome a defect of failing to provide prior notice for a search.28
In the 1965 case Griswold v. Connecticut, the Court reaffirmed the fact that the right to
privacy can be found in the “penumbras,” emanating from the express guarantees found in the First,
Fourth, Fifth and Ninth Amendments, and that these various guarantees create identifiable zones of
privacy.29 This decision provided the foundation for the significant evolution in privacy
jurisprudence that would be announced in the forthcoming case of Katz v. United States.30
In Katz, the Court ruled that when a government agent listened to and recorded the
defendant’s conversation that occurred in a public telephone booth, this violated the privacy norms
upon which the defendant relied.31 Therefore, the Court held that the government had committed an
unconstitutional “search and seizure” under the *293 Fourth Amendment.32
The Court stated, “[f]or the Fourth Amendment protects people, not places.”33 It was deemed
irrelevant that the defendant was in a public location and that the government’s listening device did
not penetrate into the telephone booth.34 The key rationale for the Court’s decision was that the
defendant had a “reasonable expectation of privacy” while in the booth.35
Thus, the Court moved from utilizing a bright-line test of physical trespass (the concept used in both
Olmstead and Goldman) to a test that relied on judicial interpretation of social norms in defining
Fourth Amendment rights. In essence, the Court vindicated the position that Justice Brandeis laid out
39 years earlier in his dissent in Olmstead. The Court also proceeded to reconfirm the decision in
Berger, noting that “searches conducted outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable under the Fourth Amendment.”36 In summary, the Court
articulated a two step requirement for one to be afforded the presumption of having the protection of
privacy: “first that a person have exhibited an actual (subjective) expectation of privacy and,
second, that the expectation be one that society is prepared to recognize as ‘reasonable.”’37
ANALYSIS OF THE BALANCE BETWEEN PRIVACY AND SECURITY
The terrorist events of 9/11 have caused the U.S. government - and in fact, much of the world
- to re-evaluate how to balance the need for security against their citizen’s need for privacy. As this
is not the first time that this has occurred within the United States, it may be instructive to look to the
past to better predict the future.
During the history of this country, there have been several occasions where this balance was
heavily tilted in the direction of security. Some examples of these periods include: 1) the passage of
the Alien and Sedition Acts in 1798 in response to concerns about infiltration of the United States by
French Jacobin subversives;265 2) the American Civil War, during which President Lincoln
declared a state of emergency and suspended all rights (most notably Habeas Corpus) in certain key
border states;266 3) The Red Scare after World War I, which saw the Supreme Court authorize
limitations on freedom of speech with the "Clear and Present Danger" Test, (Meizys) 4) the
internment of Japanese-Americans during World War II,267 wherein the United States arrested and
incarcerated 110,000 people of Japanese decent, many of them American citizens,268 based solely
upon the person’s *330 race;269 5) the McCarthyism period during the early Cold War,270 which
saw Congress pass legislation to criminalize membership in a communist organizations and
expressions of sympathy towards communist positions;271 6) the passage of the Foreign Intelligence
Surveillance Act of 1978,272 which formalized a lower threshold for court supervision of
surveillance activities when they were distinguishable from criminal investigations;273 7) the 1996
Antiterrorism Act,274 under which one could be found guilty by mere association with a
“terrorist”;275 and most recently 8) the USA PATRIOT Act276 which is the government’s latest
initiative to fight terrorism - unfortunately at a significant cost to one’s civil rights.
While the above mentioned acts were all undertaken in response to what were perceived as
legitimate threats, each act also had significant unintended consequences. History teaches that once
the immediate threat has passed (e.g., the end of the American Civil War, the end of World War II,
the end of the Cold War, etc.) the balance between security and personal privacy has returned to a
more rational equilibrium. In the past, it has been up to Congress or the Supreme Court to re-strike
the balance of power in our government. Historically, Presidents have been very reluctant to give up
the powers they gain in times of crisis. So, the question remains: When does a return to personal
rights and civil liberties occur when we are waging a "War on Terror?" (Meizys)
The Patriot Act and Civil Liberties
Mr. Meizys - US History II
1. Define civil liberties.
2. What problem prior to 9/11 is the information sharing provision of the Patriot Act supposed
to address? What do the critics say about information sharing?
3. What is a "roving wiretap?" What right may this practice violate? How might innocent
people have their rights violated with roving wiretaps?
4. What does the "record sharing" provision of section 215 of the Patriot Act require
librarians and the owners of bookstores to do? What does the "gag rule" of provision 215
mean?
5. How does the Foreign Intelligence Wiretap section of the Patriot Act "lower the bar" for
searches of people's homes in the United States?
Look at the ACLU graphic to answer questions 6-11.
6. What is a NSL? What does it do?
7. Between 2003 and 2006, the FBI issued how many NSL's? How many terrorist were
convicted in that time period? Could the conviction have happened without the Patriot Act?
8. How long can the government keep the information obtained in NSL's?
9. What is a "sneak and peak" search?
10. In 2010, how many sneak and peak searches were conducted? What percentage were
terrorist related? What percentage were drug related?
11. What Amendment to the Constitution do the sneak and peak searches violate?
Use the internet to research to questions 12 and 13.
12. What was the Oklahoma City bombing?
13. Who was responsible for the Oklahoma City bombing? What were the motives for the
bombing?
14. What law was passed in 1996 in the aftermath of the Oklahoma City bombing? How did
the Patriot Act expand the 1996 law?
15. What is the "lone wolf" provision of the Patriot Act?
16. Are the words "the right to privacy" in the US Constitution?
17. What 1886 case was the first to interpret a right to privacy in the Fourth Amendment?
18. In 1928, what right does Justice Brandeis' dissenting opinion (an opinion that disagrees
with the majority) say is 'the most comprehensive and the right most valued by civilized
men?"
19. How does the decision in Berger v. New York imply a "right to privacy." Provide a quote
from the case.
20. What case said there are "identifiable zones of privacy" in the Bill of Rights? In what
Amendments are those zones of privacy (penumbras) found?
21. In what case did the Supreme Court say that the Fourth Amendment "protects people, not
places?" What was the Court's key rationale for its decision? Use a quote.
22. Name three other historical eras in which civil liberties were threatened.
23. Civil liberties are most often sacrificed in times of _________________. (Fill in the blank)
24. Which branch of government sees its power increase in times of crisis? In other times of
crisis, what institutions have checked this increased authority?
25. Why might it be more difficult to strike a balance of power again and restore civil liberties
in the war on terror than in previous wars?
26, 27 & 28. Find THREE quotes from Supreme Court cases that could be used to overturn the
Patriot Act.
29 and 30. Give TWO examples from the World War I era that relate to the Patriot Act. In
other words, explain how the two era are similar.