Patriot Act and Privacy Rights

Introduction

Background to the Study

The US PATRIOT Act aims at providing the necessary intelligence for helping curb domestic and international terrorist activities that were planned and executed on the US soil. One major claim that was advanced by the top administration of the US in support of the US PATRIOT Act is that it strikes a balance between privacy rights and national security. The Act permits the US security agents to conduct both physical and electronic searches on individuals who are suspected to be involved in acts that may endanger the lives of the American population. It also targets people who coerce the government of the United States to behave in certain ways when addressing issues that relate to mass destruction and kidnapping among others ways. Moreover, it aims at protecting intimidation of the US government to adopt certain policies.

Before the adoption of the US PATRIOT Act, the US law required the police and other security agents to seek issuance of a warrant of search on proof of ‘probable cause’ in any involvement in criminal activities of the person intended to be searched from a judge. The new act only required the police to certify that a search would be conducted for purposes of protection against the likelihood of international and domestic terrorism. This subjective test is much easier to certify than proof of ‘probable cause.’ From this paradigm, this paper proposes a research on whether the US PATRIOT law fosters infringement of people’s rights of privacy.

Problem Statement

Large-scale collection of millions of Americans’ information violates the rights of privacy. Can the US PATRIOT law strike balance between national security and privacy rights by violating the rights of privacy for tangible items and information? The problem with the US PATRIOT Act is that it potentially fails to respect the privacy rights for innocent and law abiding Americans.

Research Aim and Objectives

The aim of the current research is to deploy secondary data that is derived from law journal articles, civil rights publications, books, and other sources to establish the scholarly contention of how the US PATRIOT act infringes the rights of privacy for Americans. The research has two main objectives, which include:

1. Examining literature on how sneak-and-peak rule as provided in section 213 of the US PATRIOT Act contravene privacy rights
2. Examining literature on the impact of ‘gag-rule’ as provided in section 215 of the US PATRIOT Act on privacy rights

Research Questions

1. Does the provision of section 215 in the US PATRIOT Act erode people’s rights to privacy
2. Does section 213 of the US PATRIOT Act erode US people’s right of privacy?

Significance of the Study

Since September 11 attacks, threats of terrorism in America and other nations have been on the rise. According to Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals (2008), this situation makes it difficult for different states to establish a boundary between public rights and individual rights such as the right of privacy. The camouflaging nature of terrorists within the sphere of social rights creates the necessity of putting measures to unearth terrorist activities in a bid to protect the integrity of the people of the United States including the violation of their domestic safety rights. Consequently, availing information on the alignments or misalignments of the US PATRIOT Act with the civil rights can aid significantly to shape the approaches and mechanisms of evaluation of new laws that seek to protect and ensure security of the American people. In this sense, the proposed research will provide a theoretical framework for balancing public rights such as the right to security and private rights such as the right to privacy.

Literature Review

Privacy Rights

Laws and regulations limit persons from violating constitutional rights of others. State laws prevent and/or reduce crime rates. However, such laws need to reflect both legal together with ethical soundness in their application. As one of the constitutional rights, people have the right for protection of their privacy unless a court order justifies such a violation (Peak 2012, p.83). However, terrorist attacks on the US World Trade Centre gave a room for considering balancing of people’s rights of security and privacy. The congress felt that the US government had a constitutional mandate to enhance security of Americans amid the directive to protect the US constitution, which proclaims people’s right such as privacy rights (Wong 2006). The claim here is that the rights of Americans need to be balanced so that one right does not result in the infringement of other rights. For this reason, President Bush enacted the US PATRIOT Act into law in October 2001. However, does it balance the rights of living free from internal and external aggression or harm and privacy right?

Literature on the rights of privacy document little attempt to define the right to privacy. Etzioni (2000, p. 901) defines privacy rights as a ‘freedom to keep a domain around us, which includes all those things that are part of us such as our body, home, property, thoughts, feelings, secret, and identity.’ This definition implies that people have the right or the freedom to choose at an individual level the domains that can be freely accessed by other people. Any forceful attempt to access the disallowed domain amounts to a breach of privacy of an individual. Therefore, privacy rights protect people from infringement of privacy of individuals by restraining parties including the government apart from an individual from accessing personal information and tangible items such as assets (Rubel 2006). In this sense, privacy rights may be loosely interpreted to mean freedom from interference or the right of being left alone.

The question of whether the US constitution makes a declaration for privacy rights attracts a heated debate in legal practice. Hudson (2009, p. 107) asserts, ‘The US constitution contains no express right to privacy.’ However, the bill of rights makes various provisions for the protection of individual privacy. The first amendment of the bill of human rights provides for privacy of people’s beliefs. The fourth amendment makes the provision for protection of individuals against unlawful or unreasonable searches while the fifth amendment makes the provision for protection of privacy of people’s information (Maillet 2013, p. 3). These provisions fail to justify any attempt to conduct a search on people’s property. The provision of the ninth amendment raises questions in terms of the applicability of these amendments. ‘Enumeration of certain rights in the Bill of Rights will not be construed to deny or disparage other rights retained by the people’ (Hudson 2009, p.128). This context implies that the preservation of privacy rights should not allow one to have the capacity to engage privately in acts that deprive people of their other rights. Can this case justify the application of the US PATRIOT Act to ensure that people do not house items that may cause mass destruction to other citizens?

Features that Guarantee Privacy Rights

Civil rights prevent the infringement of people’s freedom by privately established organisations, other people, or even the government. Such rights need to apply without discrimination on the grounds of gender, race, religion, disability, or sexual orientations. Individual rights such as privacy rights also fall under civil rights (Rubel 2006; Cornell Law 2014). The features of privacy rights essentially comprise the fundamental freedom with regard to personal possessions and information. Privacy implies that only the owners or custodians of information and property should have access to it. Where a third party acquires such access, privacy right is infringed. However, when the access is acquired through consent, the owner or the custodian of the information and property cannot complain of infringement of privacy right.

A fundamental feature for privacy right constitutes the freedom of unauthenticated access to personal belongings and property such as houses. The application of this principle is evident in some judicial precedence. On March 18 last year, a US district court presided over a case challenging the constitutionality of the ‘stop and frisk’ law that was applied by the New York Police Department (NYPD). The case, Floyd v. City of New York, was a class-action suit against breaking into privacy of minority communities without possessing the necessary legal documents such as a court’s warrant of search. The plaintiff in the case, Clarkson, Dennis, Ourlicht, and Floyd, were all black people alleging violation of their rights by the NYPD through stoppage in search of weapons and dangerous substances. They claimed that the stoppage Act violated their privacy as a basic right that is provided for in the fourth amendment of the US constitution. The presiding judge granted the case by ruling that NYPD policy for ‘stop and frisk’ amounted to violation of fundamental right for privacy for the Hispanics and black Americans. The plaintiff claimed that ‘appearing suspicious’ is not a sufficient ground for stopping people to breach their rights to privacy without proof of ‘probable cause.’

The above example reflects the need to seek consent for accessing people’s property as an essential feature for respecting privacy rights (Find Law 2013). The same concept applies to people’s information resources. The right of privacy, in relation to information, is infringed when an individual, organisation, or the government forcefully uses data-mining programmes to access information from another individual or organisations without consent, either from the party under search or from a court of law. In this context, privacy rights imply confidentiality of information resources. Cole and Dempsey (2002, p. 56) assert that federal communications privacy law protects ‘the confidentiality of private telephone, face-to-face, and computer communications while enabling authorities to identify and intercept criminal communications.’ The omnibus crime and safe street Act of 1968 established an essential feature for guaranteeing privacy rights with respect to interceptions of information flow. It prohibits any form of eavesdropping through cellular phone, personally, computers, and any other form of communication that is effected electronically. However, it also provides a room for electronic surveillance in the effort to curb criminal acts.

Under the provisions of the Act, privacy rights are guaranteed when the searching authorities seek consent from the persons under search or warrant of search. Essential features for guaranteeing privacy uphold the freedom of possessing property and information resources, or moving around with them, without compulsion to expose them in public domain (Cornell Law 2014). The US PATRIOT Act gave room for amendment to the rules that guard these essential features of the right to privacy. The next section discusses the extent to which the Act led to infringement of the features.

The US PATRIOT Act and Infringement of Features that Guarantee Privacy Rights

President Bush signed the US PATRIOT Act into law immediately after September 11 attacks, which claimed the lives of more than 3000 Americans. The provisions of section 213 and 215 of the Act attract many controversies from legal scholars and advocates of human rights. Civil rights activists contend that the US PATRIOT Act infringes people’s rights to privacy (New York Bill of Rights Defence Campaign 2013). This contention emanates from the promulgation of privacy rights in the fourth amendment. However, Maillet (2013) believes that the history of the amendment introduces difficulties in the determination of the extent to which the US PATRIOT Act erodes privacy rights. The fourth amendment fails to protect directly the rights to privacy. It only protects personal effects such as books, houses, and vehicles among others. Thus, interpreting the fourth amendment literally makes it impossible to determine how it protects information and conversation privacy rights, as civil rights advocates contend.

The legal implication of the fourth amendment in terms of protection of information and conversation is perhaps clear upon consideration of judicial precedence. In 1970s, the US Supreme Court ruled that the fourth amendment failed to offer protection to information entrusted to other parties. This exposition implies that financial information, medical records, and educational records did not receive protection from the fourth amendment (Smith 2010). The principle provides the ground for seeking information from phone companies on the numbers dialled from a certain phone or addresses keyed in by an individual from an internet service provider organisation since such companies are the custodians of private conversations. However, the intents of section 215 remain questionable as the section prohibits parties, which are served by the orders of the section to disclose to any other party that security agents searched their details.

With or without evidence, civil rights advocates cite specifically section 213 and 215 of the US PATRIOT Act as their major concern in the capacity of the Act to breach civil rights (Rubel 2006). Sneak-and-peak provisions, as enumerated in section 213 of the Act, guarantee much powers to law enforcement agents to conduct searches in premises of unsuspecting US citizens without having to inform them priory in the effort to mitigate challenges of destruction or hiding of evidence (Cole & Dempsey 2002, p.83). On the other hand, the ‘gag-rule’ provided for in section 215 of the Act. It gives law enforcement agencies the power to subpoena business records without the consent of the business owners (Rubel 2006). This suggests that the two rules do not make provisions for civilians and organisations to authenticate searches within their premises or information systems.

In her study on the applicability of the US PATRIOT Act in curbing terrorism, Van Bergen discusses the case of the indictment of Professor Al-Arian. Through sneaking and peaking into the information of the Al-Arian, purported money transfers to various accounts that were later utilised in funding terrorist acts was possible to prove. She asserts, ‘The allegations contained in the conspiracy indictment were based largely on authorised electronic surveillance pursuant to FISA and conducted prior to the US PATRIOT Act’ (Van Bergen 2003, p.122). This finding provides evidence on the applicability of the US PATRIOT Act in balancing the rights of security for the Americans and the rights for ensuring privacy of their information. Her research methodology that involved the use of case studies of successful application of the US PATRIOT is particularly effective in providing reliable evidence on the extent to which the Act does not amount to violation of the privacy rights of the US citizens.

Principles of democracy advocate that people have the right to make choices of their course of actions. However, this does not imply that they should break the democratic rights of others while preserving their democratic rights’ discourses (Isakhan & Stockwell 2011). Theories of democracy such as pluralist, protective, and the performance democracy uphold the principle, ‘democratic citizens are expected to be free in several important respects…they must be free regarding such matters as speech, assembly, and conscience’ (Sen 2004, p.9). This suggests that the freedom of conversing and sharing information freely with one’s party of choice is fundamental to any democratic government.

In a democratic government whose policies are informed by democratic theory of equal participation, people also preserve their right of security from internal and external inversion (Halperin, Siegle & Weinstein 2005). Indeed, it is an obligation of any democratic government to provide control for infringement of people’s rights while exercising other rights such as the rights of privacy. In this context, the US PATRIOT Act does no harm people’s privacy in the extent that it can help in balancing the right of privacy and security of the Americans. This situation is only possible when a subjective test is applied while issuing warrants of search to ensure the existence of precision of allegation of the likely involvement of people who are scheduled for search in criminal or terrorist activities. However, Wong’s (2006) research on the consideration of the US PATRIOT Act while arriving at the decision to issue a warrant of search proves the ease at which a judge may issue warrant of search without demonstration of connectivity between request for search and the victim party’s involvement in terrorist acts.

In his analysis of the section 213 of the US PATRIOT Act, Wong (2006) informs that the US security agents need to only to prove ‘significant purpose’ in the search of private property or information systems for organisations holding private information. Thus, the proof of probable cause does not apply in the application of section 213. Hence, it widens the scope of search and seizures. The legal provisions on electronic surveillance attract high concerns from investigative agencies. Abramson and Godoy (2014) reveal that the agencies have always complained about the legal restrictions of using information obtained from technology devices such as cell phones and computers during prosecutions. Sneak-and-peak rule provides solutions to these complaints. The rule gives legal support for intelligence agencies to mount wiretaps on unsuspecting citizens. While the rule may be important during investigations of highly technologically informed terrorists, the privacy of innocent Americans who may be conversing with terrorists unknowingly is subjected to jeopardy.

Wong and Gruberg’s (2006) study on the impacts of the US PATRIOT Act on civil rights relies on data collected through direct interviews. Drawing from the data, they report, ‘Non-citizens with no connection to terrorists have been rounded up seemingly on the basis of their religion or ethnicity, held for months without charges, and in some cases physically abused’ (Wong & Gruberg 2006, p.15). They claim that about 57 percent of Muslims with American citizenship have encountered discrimination together with biasness in terms of violation of their privacy rights in search of information linking them to terrorism. Based on these findings, Wong and Gruberg (2006) insist that the US PATRIOT Act has led to the erosion of democratic rights of Muslim American population such as equal and fair treatment to other citizens in its implementation.

In terms of its application from the domain of the general American population, Wong and Gruberg (2006) assert that the US PATRIOT Act, especially the provision of section 215, changes the procedures for the Federal Intelligence Surveillance Act (FISA). The procedures outline how law enforcement agencies should conduct intelligence surveillance. Rubel (2006) agrees with this claim by adding that the ‘gag-rule’ provision does not require law enforcement officers to prove a terrorist link to conduct searches. The research by Wong and Gruberg (2006) relies on interview to make its inferences on the impacts of the US PATRIOT Act on certain groups of the American citizens. However, it fails to consider reliable information derived from cases settled in courts of law, which are prosecuted using information garnered through the application of section 213 and 215 of the Act. This proposal seeks to close this gap in the effort to determine the segregation in the application of the US PATRIOT Act among the American population.

Methodology

Research Design

This research deploys secondary data to achieve its aim. It draws its data from law journals, books, and complied cases involving alleged participation in acts that are likely to expose the security of the Americans to the danger of terrorism. Quantitative data on the number of such cases since the enactment of the US PATRIOT Act in October 2001 is gathered for further analysis. Related qualitative information such as race, religious inclination, and ethnicity of the accused persons is also compiled.

Data Collection

Secondary research uses information from other studies. The proposed study will collect this information mainly from government publications, legal journals/books, and civil right websites. The main reason for using the secondary data collection method is its unobtrusive nature. It is also relatively easier, cheaper, and faster to collect secondary information in comparison with primary data.

Research Strategy

The proposed research strategy adopts a non-experimental approach to answer the research questions. This means that there will be no manipulation during the collection, analysis, or presentation of findings (Mangal & Mangal 2013; Halperin, & Heath 2012). Overall, this strategy will include the analysis of case studies, review of analytical views, and the review of archived information concerning the research topic.

Conclusion

The US government, under the Bush administration, passed the US PATRIOT Act into law after the September 11 attacks. The Act aimed at improving the quality of counterterrorist investigations by giving law enforcement officers immense powers to search and survey terrorists. However, the Act has caused widespread controversies. It potentially undermines the rights and freedoms of the Americans. For example, the law eliminated many checks and balances that gave Americans the right to seek legal redress in case of abuse of their civil rights. The proposed research aims at examining the extent to which sections 213 and 215 erode the privacy rights of the American population through studying the evident segregation in the application of the US PATRIOT Act among the American citizens.

References

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Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals 2008, Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment, National Academies Press, Washington, DC.

Cornell Law 2014, Civil Rights, Web.

Etzioni, A 2000, ‘A communitarian perspective on privacy’, Connecticut Law Review, vol.32 no.3, pp. 897-905.

Find Law 2013, What Are Civil Rights?, Web.

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Van Bergen, J 2003, ‘In the Absence of Democracy: The Designation and Material Support Provisions of the Anti-Terrorism Laws’, Law Policy & Ethics Journal, vol. 2 no. 107, pp. 109-159.

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