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Wednesday, October 22, 2008

The Patriot Act: Eroding Privacy and Constitutional Rights

The Constitution of the United States was written over two hundred thirty years ago, in a time when technology was far from what it is today. Personal records were written on pieces of paper and computers were far from existence. Here in the early twenty-first century, most important data is kept in computer filing systems: financial information, health records, and even communication reports including web-browsing history. Since the terrorist attacks of September 11, 2001, it has been questioned if the government has the authority to compile all of this information on U.S. citizens. The passing of the USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) has greatly expanded the limits to which the government is able to search personal information while looking for potential terrorist suspects (Gorham-Oscilowski 626). Even though the motive behind this investigation is for the common good, this does push the boundary of the rights of unreasonable search and seizure from the Fourth Amendment and the freedoms listed in the First Amendment listed in the Bill of Rights. Pursuit of suspected terrorists is needed to protect society, but a line must be drawn to protect individuals’ civil rights and privacy; the answer is in the form of modernized laws governing the protection of personal privacy.

Prior to the terrorist attacks of 2001, the Federal Bureau of Investigation (FBI) used National Security Letters (NSLs) to access financial and communication information from the respective providers. The NSLs were originally created in 1988 through the Right to Financial Privacy Act (RFPA) and the Electronic Communications Privacy Act (ECPA), but have been expanded by various acts of congress to include information on subscribers, billing records, and consumer identifying information. “In order to obtain the requested information, the FBI had to certify that 1) the information was “relevant to an authorized foreign counterintelligence investigation,” and 2) there were specific and articulable facts giving reason to believe that the person or entity to whom the information pertains was a foreign power or an agent of a foreign power” (Gorham-Oscilowski 626-7). After the passing of the Patriot Act in 2001, the FBI has greatly expanded authority to request NSLs for any relevant cause related to preventing terrorism or intercepting foreign intelligence. This Act was created in an effort to issue NSLs in a quicker manner, so that terror related suspects could be detained prior to any acts of violence against the United States. In doing this, the Patriot Act opened the door for relaxed justification for investigations by the FBI, and allowed government to perform searches and seizures in personal information databases and surveillance procedures (627-9).

This Act has an effect on the everyday citizen in the United States. During FBI searches, much information is obtained about people that have no affiliation with terrorism acts or terrorism-related people. If someone looks suspicious, it is no problem to obtain an NSL, investigate that person’s information, and track his or her travels. There are many questions raised as to whether or not the Patriot Act violates the rights listed in the Fourth Amendment:

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.

The Amendment states that a search of a person’s property must be justified by accompanying evidence, with enough validity to accuse the offender and give good reason for a search warrant (Schmidt, et al 69). With the protection from the Fourth Amendment, citizens have the protection against unwarranted searches, and should have privacy of personal information respected by the government.

The Patriot Act continues to violate the freedoms and rights listed in the Bills of Rights, including the freedoms mentioned in the First Amendment of the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting, the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Schmidt, et al 69)

The freedoms of speech and assembly are common practice in society, and the courts often uphold these rights. The Patriot Act challenges this freedom by allowing searches of information simply for the suspicion of a person’s activities or contacts.

The government is intended to do what it believes is best within its power to protect the citizens of the United States, by using its means to search for terrorist activity. Some may question how many rights and freedoms Americans are willing to give up for safety from foreign powers. There is a tradeoff between freedom and safety, and the key is to find where that line is. As Lawrence Lessig introduces in his essay, “Privacy as Property,” Americans must decide whether the information like social security numbers and financial account numbers is considered personal property (126-7).

A special investigation from Frontline introduced the power that the Patriot Act has given the federal and local governments to conduct searches of information and tracking of peoples’ movements. The story covers an investigation of the FBI in Las Vegas over a New Year’s holiday when terrorist activity is suspected. The FBI conducted a search of customer information from local casinos, hotels, and businesses in order to cross-reference the data to indicate if any terrorist suspects were in the area. There were people that had all of their financial information analyzed and their movements tracked throughout the city, and had no idea this was happening (“Spying”). It is a startling to think the government has the right to conduct such extensive investigations without the public’s knowledge.

As technology advances, and more personal-information is used in web browsing, it becomes more difficult to restrict what happens to that information. The laws that govern this country must keep current with this ever-changing society and its development in the new technology era. The laws that were made in the 1700s still stand to protect citizens’ rights and freedoms, and the lawmakers today must keep these initial laws in consideration when developing new laws to govern the nation. The USA Patriot Act has taken great steps toward protecting Americans from foreign terrorist powers, but the law must not stand in the way of the Bill of Rights or the Constitution.