The Usa Patriot Act: a New Way of Thinking, an Old Way of Reacting, Higher Education Responds

• Publication year: 2003

David Lombard Harrison⁰

I. introduction

On October 26, 2001, only six weeks after the unfathomable horror of September 11, President Bush signed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("PATRIOT Act").¹ The bill was more than 340 pages long, had significant changes in its final days, and affects more than fifteen already existing statutes.² In response to the crisis of September 11, the legislation passed 98 to 1 in the Senate and 357 to 66 in the House of Representatives without hearings and with little debate or discussion. Yet, the debate is increasingly being heard above the din of crisis, with members of the higher education community deeply involved;³ even members of Congress have questioned their own actions voting for the Act.⁴ Essential to this growing debate is the frank realization that the PATRIOT Act was implemented in response to a national security crisis, rather than an unfolding legislative action. Similar responses to actual or perceived security crises resulted in The Alien and Sedition Acts of 1798, President Lincoln's suspension of habeas corpus during the Civil War, the Espionage Act of 1917, the internment of Japanese-Americans after Pearl Harbor, and the Smith and McCarren Acts, during the McCarthy years.⁵ Historical perspective, however, reveals these to have been reactions, rather than responses, and none of these reactions is defensible today; most must be viewed as reprehensible and unjustified reactions to perceptions of the need for expediency in the face of perceived threats to national security.

The core of the debate is one central to the fundamental American struggle: freedom versus security and individual will versus the public good.⁶ The tensions that are inherent in the debate between surveillance needs and the preservation of civil liberties have their roots in the fundamental struggle of community interests versus individual interests—a struggle that has defined much of the history of the United States, from the Declaration of Independence through the Constitution, Bill of Rights, and the statutes and judicial interpretations that have followed. Because of the nature of the American tension between individual and community interests, the provisions of the PATRIOT Act are certain to be challenged, modified, and supported by more acts of Congress, interpretations by the judiciary, and orders from the executive branch. In fact, the Bush Administration and Congress have already strengthened the surveillance powers of the PATRIOT Act.⁷

It is certainly naive to reject surveillance as a necessary national tool,⁸ and critics blamed the naivety in rules for intelligence gathering as a reason for the devastating success of the September 11 operation.⁹ However, the toll on civil liberties in times of war and crisis has been high. As United States Supreme Court Justice William J. Brennan, Jr. acknowledged:

When I think of the progress we have made over the last thirty years, I look upon our system of civil liberties with some satisfaction, and a certain pride. There is considerably less to be proud about, and a good deal to be embarrassed about, when one reflects on the shabby treatment civil liberties have received in the United States during times of war and perceived threats to its national security. For as adamant as my country has been about civil liberties during peacetime, it has a long history of failing to preserve civil liberties when it perceived its national security threatened. This series of failures is particularly frustrating in that it appears to result not from informed and rational decisions that protecting civil liberties would expose the United States to unacceptable security risks, but rather from the episodic nature of our security crises. . . .

The sudden national fervor causes people to exaggerate the security risks posed by allowing individuals to exercise their civil liberties and to become willing "temporarily" to sacrifice liberties as part of the war effort.¹⁰

It is this historical context and philosophical uneasiness that must add fuel to the emerging debate surrounding the PATRIOT Act.

Title II of the PATRIOT Act was meant to be a solution to one of the first questions everyone asked on September 11: How could this have happened without the FBI and CIA knowing about it?¹¹ However, Title II's solution, which broadens the powers of law enforcement and national security agencies to conduct surveillance, has had a significant impact on the use of surveillance technologies and will arguably affect the privacy interests of everyone, not just the "terrorists" who are the intended targets. The message from the Department of Justice is that there is a need for more tools in the fight against terrorism: "The Patriot Act gives us the technological tools to anticipate, adapt, and outthink our terrorist enemy. To abandon these tools would senselessly imperil American lives and American liberty, and it would ignore the lessons of September 11."¹² But are we being asked to give up essential liberty in the name of a little temporary security?¹³

Title II of the PATRIOT Act has received the most attention because of the provisions concerning "roving wiretaps," "sneak-and-peek" warrants, Carnivore applications, lowered standards for gaining surveillance authority, and other technical issues. However, it's less obvious result is a fundamental removal of the walls that once existed between the FBI and national security agencies, and a removal of the internal wall in the FBI that segregated intelligence gathering from criminal investigation.¹⁴

"We are going to have to get used to a new way of thinking," Assistant Attorney General Michael Chertoff, who is in charge of [investigating] the Sept. 11 attacks, said in an interview. "What we are going to have is a Federal Bureau of Investigation that combines intelligence with effective law enforcement."¹⁵ This new way of thinking is the abandonment of post-Watergate policy decisions to separate intelligence and law enforcements functions to prevent abuses by the FBI and national security agencies.¹⁶ To many, this is the real concern with the PATRIOT Act. Roving wiretaps, sneak-and-peek searches, and the host of "tools" allowed by the Act are already in limited use, but the rearrangement of law enforcement and national security agencies is a return to an old way.

Colleges and universities must also get used to a new way of thinking because they have an unmatched intersection of high technology and foreign nationals—the explicit primary concerns of the PATRIOT Act. Moreover, institutions of higher learning are microcosms of the struggle between individual rights and the public good, and are, by nature, forums for the most difficult debates, with members of the higher education community often at the forefront of the issues. The question is whether higher education will be part of the response or part of the reaction.

This article first recognizes the tension between individual freedom versus the community good in surveillance activities, the unjustified reactions taken in times of security crises, and Title II of the PATRIOT Act's creation of a new way of thinking after September 11. The article then examines the means and methods of surveillance, and the significant changes made to existing surveillance laws by Title II. The article also examines how section 215 of Title II generated a debate between librarians and the Justice Department that revealed the need for and importance of that debate in determining whether the PATRIOT Act is a reaction or a response to a perceived security crisis. The article then examines provisions outside Title II, which have a significant effect on institutions of higher education. The article concludes by accepting higher education's duty to advance the debate between individual freedom and the community good, and also higher education's need to respond with practical solutions.

II. Methods of Surveillance and Information Gathering

For many concerned with the PATRIOT Act, the starting point is the Fourth Amendment,¹⁷ and its first mandate that the government cannot intrude when one has a reasonable expectation of privacy; and its second mandate that permitted intrusions are to be regulated and open.¹⁸ In response to the September 11 attacks, the PATRIOT Act thrusts the Fourth Amendment back to the forefront of the national consciousness. Title II fundamentally changes the relationship of a communications provider to those it serves and increases the power of law enforcement to perform surveillance and to retrieve information.¹⁹ These changes are seen by many, on all sides of the political and civil liberties spectrum, as significantly altering the privacy landscape in the United States of America.²⁰

A. Types of Communication

The methods of surveillance and information gathering have paralleled the advance of technology, but the laws have not. Many of the changes enacted by Title II of the PATRIOT Act are a reply to those advances in technology and infrastructure, and the inconsistencies in the ways different technologies were treated. The methods themselves range from decades-old telephone wire technology to, as yet, unconfirmed worldwide systems which sweep and sort every byte of data from every source.²¹ The surveillance laws specify three basic types of communication that can be gathered: oral, wire, and electronic communications. Oral communication is a human utterance made when the speaker reasonably expects that the utterance will not be intercepted. It does not include an electronic communication.²² Wire communication is a human utterance transmitted in whole or in part over wire, cable, or similar connection furnished by a telecommunications facility; it did not include the portion of a communication transmitted by a cordless telephone until 1994.²³ Electronic communication means any transfer of...