Balance of privacy vs. security: a historical perspective of the USA PATRIOT Act.

• Author: Soma, John T.

1. INTRODUCTION II. SURVEILLANCE AND COUNTER-TERRORISM AT HOME AND ABROAD BEFORE THE USA PATRIOT ACT A. United States B. Survey of Select Western Democracies III. THE USA PATRIOT ACT A. Passage of the Act B. Key Provisions of the Act and Their Implications IV. POST USA PATRIOT ACT DEVELOPMENTS A. Judicial 1. Criminal Cases 2. Freedom of Information Act Cases 3. Civil Cases B. Future Areas of Litigation and Legislation C. Administration's Response to Criticism of the USA PATRIOT Act V. ANALYSIS OF THE BALANCE BETWEEN PRIVACY AND SECURITY VI. CONCLUDING OBSERVATIONS A. Historical Return to Equilibrium B. Technology's Impact on the Frequency of Oscillations Between Privacy and Security C. Global Privacy/Security Convergence in Democracies INTRODUCTION

As the frequency of threats to U.S. national security has increased since the late 1700s, the balance between privacy and security has become ever more volatile. Several factors have contributed to this volatility: 1) changing technologies increase the ease with which terrorist groups can commit violent acts against society, while also increasing the severity of the ensuing harm; 2) as a result of popular pressure to provide more security, the U.S. government has had to increase the speed and severity with which it responds to these threats; 3) as the U.S. government increases the magnitude of its response, infringements on personal privacy have also increased. Surveillance has advanced from static telephone wiretaps to interception by filtration software of any given e-mail sent, received, or merely directed through a particular router and eventually, as technology advances, to real-time automated surveillance of voice-over-internet communications and continuous tracking of individuals by their own cellular phones.

This response to terrorism has led to increased oscillation between privacy and security interests producing cognitive dissonance in the population at large. This dissonance is seen in the contrast between people's support for strong national security and their desire to continue a strong legacy of personal privacy. Yet historically, a return to equilibrium has occurred as the initial threat dissipates and is better understood and defended against. Privacy issues have arisen and appropriate changes in legislation, regulation and judicial opinions have brought the privacy and security balance back to its equilibrium. This oscillation is also documented in Canada and the United Kingdom. In these nations, which share similar legal and political cultures with the United States, it appears that despite terrorist threats challenging these countries, there has been a return to their historical privacy/security equilibrium.

With the adoption of the Internet as a universally accepted mode of communication, the potential for "Big Brother" to be watching is at an all time high, especially following the devastating terrorist attacks of September 11, 2001 ("9/11"). The Bush administration, in reaction to those events, obtained passage of the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) (1) so as to loosen perceived restraints on obtaining information about suspected terrorists and future attacks.

Proponents of the PATRIOT Act claim that if earlier proposed legislation had been enacted prior to the tragic events of 9/11, then the disaster could have been prevented. The advocates of this position typically argue that the Act itself does not and will not significantly affect the liberties and privacy of law-abiding citizens and that security should be the overriding consideration. (2) Assuming that this is true, the concern remains not that the Act will overtly violate the Constitutional rights of U.S. citizens, but that the balance between privacy and security will be imperiled. It has been announced that domestic counter-terrorism efforts by the Federal Bureau of Investigations (FBI) and other law enforcement agencies are as important as the use of military force abroad. (3) The use of roving wiretaps, enhanced electronic surveillance and other measures as provided in the Act has been referred to as a fair compromise with traditional privacy concerns given the potential threat the United States faces from future terrorist attacks. (4) Yet apprehension over the relaxation of restraints on governmental investigatory abilities cannot be dismissed out of hand.

SURVEILLANCE AND COUNTER-TERRORISM AT HOME AND ABROAD BEFORE THE USA PATRIOT ACT

1. THE UNITED STATES

   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 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 (paper-based) 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) 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 [section] 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, substance, 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 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...