USA Patriot Act, the fourth amendment, and paranoia: can they read this while I'm typing?

• Author: Kollar, Justin F.
• Position: Law overview - Report

They that can give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. (1)

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society. (2)

1. INTRODUCTION

   We cherish our Fourth Amendment privacy rights during times of peace and security, but they suffer greatly during times of perceived peril. (3) On October 26, 2001, President George W. Bush, himself the son of a wartime president, signed the lugubriously-named USA PATRIOT Act (USAPA) into law. (4) The Act is massive in scope and reach, and has quickly become a flashpoint of controversy in the contemporary civil liberties lexicon. (5) Congress assembled and passed USAPA with a quickness uncharacteristic of the federal government, in a mere six weeks following the unprecedented terrorist attacks of September 11, 2001. (6)

   President Bush and his Attorney General, John Ashcroft, awash in a rising tide of public hysteria, succeeded in enacting legislation criticized by many as an attempt to consolidate too much power in the executive branch of the Federal government. (7) Critics rightly recognize that parts of the Act may seriously compromise the Fourth Amendment and the fundamental right of privacy by expanding the ability of executive branch law enforcement agencies to conduct electronic surveillance and wiretapping on suspected criminals. (8) The USAPA furthers this objective by using ex parte proceedings in secret courts exercising a greatly reduced standard of review over surveillance applications made by the Attorney General. (9) The term "Patriot Act" is now shorthand for a growing polarization in American politics, and has already raised serious questions concerning abuses by those it newly empowers. (10)

   USAPA effectively gives the Attorney General the power to conduct electronic surveillance over almost anybody alleged to bear any tenuous connection to a group that advocates violence. (11) Civil libertarians accuse the President and Attorney General of making a power grab, asserting that the USAPA violates Fourth Amendment privacy safeguards. (12) While certain provisions are very intrusive, the Act and its subsequent reading by the Foreign Intelligence Surveillance Court of Review does reflect the historic tendency of the judiciary to defer to the Executive, in cyberspace or otherwise, particularly during wartime. (13)

   What troubles many about the Act is the perceived marginalizing of the judiciary and the relaxing of the standards to be met by prosecutors seeking to gather evidence. (14) Civil libertarians point to the Supreme Court's own jurisprudence in highlighting the fact that the intersection of free speech and law enforcement is particularly volatile. (15) USAPA so quickly changed the American political landscape that it is difficult to prospectively assess its impact, although some argue the Act is simply a manifestation of the cyclical expansions and contractions of civil liberties not unusual in American history. (16)

   A historical analysis of the Fourth Amendment provides this context, specifically in regard to the warrant requirement for electronic surveillance. (17) Prior to USAPA, the level of judicial oversight required for any particular intelligence-gathering endeavor hinged on whether the intelligence sought was "foreign intelligence" or a more straightforward criminal investigation. (18) Where this semantic line is drawn determines the necessity, or lack thereof, for a warrant. (19) This distinction determines who will grant the authority for the surveillance, and USAPA redraws its boundaries in dramatic fashion. (20) Analysis of Fourth Amendment history, and its bearing on issues of electronic surveillance and national security, elicits a better understanding of the changes USAPA works on contemporary privacy interests. (21) This paper discusses the origin and evolution of the Fourth Amendment's protections against warrantless wiretapping, and includes a selective overview of various portions of USAPA affecting those protections.

2. THE FOURTH AMENDMENT & THE AMERICAN RIGHT TO PRIVACY

   The Fourth Amendment to the U.S. Constitution reads:

   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. (22) The framers of the Constitution did not envision modern telecommunications, and thus the Fourth Amendment on its face seems to limit a protected area of a purely physical nature. (23) While the founding fathers could not have envisioned the degree to which high-tech terrorists in the twenty-first century could instill fear, they deliberately created a living document based on simple principles that is capable of dealing with almost any set of circumstances. (24)

   Historically, and as a result of this Constitutional elasticity, whenever national security is threatened, privacy protections are accordingly reduced. (25) Serious threats result in public hysteria and a consequent pressure on the executive to act in a manner the public perceives as strong and decisive. (26) The courts are charged to read the Constitution as tolerant of these intermittent and limited intrusions into civil liberties. (27) In the period just after September 11th 2001, in keeping with historical trends, an unsettled public willingly placed greater power in the hands of receptive federal law enforcement agencies. (28) Despite the dire nature of the circumstances, many erstwhile statesmen and others criticized USAPA for its breadth and dramatic scope, positing that by diminishing judicial oversight, reducing operational barriers and widening the scope of what is searchable, the Act abrogates the Fourth Amendment. (29)

   The Fourth Amendment right to privacy is rooted in the English common law, as is most of our revered Constitutional jurisprudence. (30) The need for protection against unlawful search and seizure arose out of colonial frustration with the British occupiers' arbitrary imposition of justice. (31) The invention of the telephone and rapid technological improvements occurring in the late nineteenth and early twentieth century raised novel issues of interpretation not seen in the first century or so of American political history and reopened the once-settled question of where to draw the line between public and private. (32)

   The Fourth Amendment provides that in the absence of special circumstances, law enforcement must obtain the approval of a neutral judicial officer before any search or seizure happens in a place subject to a reasonable expectation of privacy. (33) Specifically, requests for search warrants must satisfy three conditions. (34) First, the search must be "reasonable"--the courts have long struggled to define the parameters of this reasonableness. (35) Second, the warrant must specify with particularity the subject matter of the search. (36) Finally, a neutral magistrate must be imposed between the law enforcement official and the object of the search. (37)

   The test of reasonableness is elastic and requires both a liberal construction and broad application. (38) In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. (39) Courts must consider the scope of the particular intrusion, the manner in which it occurs, the justification for initiating it, and the place it happens. (40) Therefore, this malleable notion of "reasonableness" lies at the center of a fluid doctrine governing the standards applied by the courts in the areas of search and seizure. (41) This fluid standard of reasonableness permits doctrinal shift. (42)

   In our complex society the right to privacy has grown to encompass more than mere property rights. (43) As a result of this shift, which occurred between the industrial revolution and the passage of USAPA, the Fourth Amendment today is more like an umbrella, moving to protect a mobile person, than a roof protecting a house. (44) From 1978 until very recently, analysis of the Fourth Amendment's general prohibition of warrantless wiretapping centered on the dichotomy between surveillance of foreign powers (and their agents) and surveillance of ordinary people for criminal purposes. (45) The timely nature of the threat posed by terrorism to U.S. security interests and continued doctrinal shift in the U.S. Federal Courts has resulted in a move away from Fourth Amendment protections not atypical in a time of war, and there is now emerging an understanding that the use of warrantless electronic surveillance is likely to expand considerably and will be held Constitutional. (46)

3. THE SCOPE OF USAPA IS FAR BEYOND THE TRADITIONAL NOTION OF NATIONAL SECURITY

   USAPA consists of 156 individual sections grouped under ten Titles. (47) Title II of the Act is entitled "Enhanced Surveillance Procedures" and contains 25 sections that concern Titles 18 and 50 of the United States Code and Rules 6 and 41 of the Federal Rules of Criminal Procedure. (48) Seven sections of Title II concern the Foreign Intelligence Surveillance Act alone. (49) Most of the Act will "sunset" in five years, but nine of the most contentious of the twenty five sections in Title II are exempt and shall not expire. (50)

   Many of USAPA's provisions are relatively insipid, like its generic, one-sentence condemnation of religious hatred. (51) USAPA sweeps widely, however, encompassing the esoteric as well. (52) Furthermore, in addition to the electronic surveillance provisions of the Act...