The USA PATRIOT Act has generated a great deal of controversy since its enactment.
Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks, believing that there would have been little debate. They view the Act as one that was hurried through the Senate with little change before it was passed. (Senators Patrick Leahy and Russell Feingold proposed amendments to modify the final revision.)
The sheer magnitude of the Act itself was noted by Michael Moore in his controversial film Fahrenheit 9/11. In one of the scenes of the movie, he records Congressman Jim Mc Dermott alleging that no Senator had read the bill and John Conyers, Jr. as saying, “We don’t read most of the bills. Do you really know what that would entail if we read every bill that we passed?” Congressman Conyers then answers his own rhetorical question, asserting that if they did it would “slow down the legislative process”. As a dramatic device, Moore then hired an ice-cream van and drove around Washington, D.C. with a loud speaker, reading out the Act to puzzled passers-by, which included a few Senators.
However, Moore was not the only commentator to notice that not many people had read the Act. When Dahlia Lithwick and Julia Turne for Slate asked, “How bad is PATRIOT, anyway?”, they decided that it was “hard to tell” and stated:
The ACLU, in a new fact sheet challenging the DOJ Web site, wants you to believe that the act threatens our most basic civil liberties. Ashcroft and his roadies call the changes in law “modest and incremental.” Since almost nobody has read the legislation, much of what we think we know about it comes third-hand and spun. Both advocates and opponents are guilty of fear-mongering and distortion in some instances.
One prime example of a controversy of the Patriot Act is shown in the case of Susan Lindauer.
Another is the recent court case United States v. Antoine Jones. A nightclub owner was linked to a drug trafficking stash house via a law enforcement GPS tracking device attached to his car. It was placed there without a warrant, which caused a serious conviction obstacle for federal prosecutors in court. Through the years the case rose all the way to the United States Supreme Court where the conviction was overturned in favor of the defendant. The court found that increased monitoring of suspects caused by such legislation like the Patriot Act directly put the suspects’ Constitutional rights in jeopardy.
The Electronic Privacy Information Center (EPIC) has criticized the law as unconstitutional, especially when “the private communications of law-abiding American citizens might be intercepted incidentally”, while the Electronic Frontier Foundation held that the lower standard applied to wiretaps “gives the FBI a ‘blank check’ to violate the communications privacy of countless innocent Americans”. Others do not find the roving wiretap legislation to be as concerning. Professor David D. Cole of the Georgetown University Law Center, a critic of many of the provisions of the Act, found that though they come at a cost to privacy are a sensible measure while Paul Rosenzweig, a Senior Legal Research Fellow in the Center for Legal and Judicial Studies at the Heritage Foundation, argues that roving wiretaps are just a response to rapidly changing communication technology that is not necessarily fixed to a specific location or device.
The Act also allows access to voicemail through a search warrant rather than through a title III wiretap order. James Dempsey, of the CDT, believes that it unnecessarily overlooks the importance of notice under the Fourth Amendment and under a Title III wiretap, and the EFF criticizes the provision’s lack of notice. However, the EFF’s criticism is more extensive—they believe that the amendment “is in possible violation of the Fourth Amendment to the U.S. Constitution” because previously if the FBI listened to voicemail illegally, it could not use the messages in evidence against the defendant.Others disagree with these assessments. Professor Orin Kerr, of the George Washington University school of law, believes that the ECPA “adopted a rather strange rule to regulate voicemail stored with service providers” because “under ECPA, if the government knew that there was one copy of an unopened private message in a person’s bedroom and another copy on their remotely stored voicemail, it was illegal for the FBI to simply obtain the voicemail; the law actually compelled the police to invade the home and rifle through peoples’ bedrooms so as not to disturb the more private voicemail.” In Professor Kerr’s opinion, this made little sense and the amendment that was made by the USA PATRIOT Act was reasonable and sensible.
The USA PATRIOT Act’s expansion of court jurisdiction to allow the nationwide service of search warrants proved controversial for the EFF. They believe that agencies will be able to “‘shop’ for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, using only those judges least likely to say no—even if the warrant doesn’t satisfy the strict requirements of the Fourth Amendment to the Constitution”, and that it reduces the likelihood that smaller ISPs or phone companies will try to protect the privacy of their clients by challenging the warrant in court—their reasoning is that “a small San Francisco ISP served with such a warrant is unlikely to have the resources to appear before the New York court that issued it.” They believe that this is bad because only the communications provider will be able to challenge the warrant as only they will know about it—many warrants are issued ex parte, which means that the target of the order is not present when the order is issued.
For a time, the USA PATRIOT Act allowed for agents to undertake “sneak and peek” searches. Critics such as EPIC and the ACLU strongly criticized the law for violating the Fourth Amendment, with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed.
However supporters of the amendment, such as Heather Mac Donald, a fellow at the Manhattan Institute and contributing editor to the New York City Journal, expressed the belief that it was necessary because the temporary delay in notification of a search order stops terrorists from tipping off counterparts who are being investigated.
In 2004, FBI agents used this provision to search and secretly examine the home of Brandon Mayfield, who was wrongfully jailed for two weeks on suspicion of involvement in the Madrid train bombings. While the U.S. Government did publicly apologize to Mayfield and his family, Mayfield took it further through the courts. On September 26, 2007, Judge Ann Aiken found the law was, in fact, unconstitutional as the search was an unreasonable imposition on Mayfield and thus violated the Fourth Amendment.
Laws governing the material support of terrorism proved contentious. It was criticized by the EFF for infringement of freedom of association. The EFF argues that had this law been enacted during Apartheid, U.S. citizens would not have been able to support the African National Congress (ANC) as the EFF believe the ANC would have been classed as a terrorist organization. They also used the example of a humanitarian social worker being unable to train Hamas members how to care for civilian children orphaned in the conflict between Israelis and Palestinians, a lawyer being unable to teach IRA members about international law, and peace workers being unable to offer training in effective peace negotiations or how to petition the United Nations regarding human rights abuses.
Another group, the Humanitarian Law Project, also objected to the provision prohibiting “expert advise and assistance” to terrorists and filed a suit against the U.S. government to have it declared unconstitutional. They succeeded, and a Federal Court found that the law was vague enough to cause a reasonable person to guess whether they were breaking the law or not. Thus they found it violated the First Amendment rights of U.S. citizens, and struck it down.
Perhaps one of the biggest controversies involved the use of National Security Letters (NSLs) by the FBI. Because they allow the FBI to search telephone, email, and financial records without a court order, they were criticized by many parties, including the American Civil Liberties Union. Although FBI officials have a series of internal “checks and balances” that must be met before the issue of an NSL, Federal Judge Victor Marrero ruled the NSL provisions unconstitutional.In November 2005, Business Week reported that the FBI had issued tens of thousands of NSLs and had obtained one million financial, credit, employment, and in some cases, health records from the customers of targeted Las Vegas businesses. Selected businesses included casinos, storage warehouses and car rental agencies. An anonymous Justice official claimed that such requests were permitted under section 505 of the USA PATRIOT Act and despite the volume of requests insisted “We are not inclined to ask courts to endorse fishing expeditions”. Before this was revealed, however, the ACLU challenged the constitutionality of NSLs in court. In April 2004, they filed suit against the government on behalf of an unknown Internet Service Provider who had been issued an NSL, for reasons unknown. In ACLU v. DoJ, the ACLU argued that the NSL violated the First and Fourth Amendments of the U.S. Constitution because the USA PATRIOT Act failed to spell out any legal process whereby a telephone or Internet company could try to oppose an NSL subpoena in court. The court agreed, and found that because the recipient of the subpoena could not challenge it in court it was unconstitutional.Congress later tried to remedy this in a re-authorization Act, but because they did not remove the non-disclosure provision a Federal court again found NSLs to be unconstitutional because they prevented courts from engaging in meaningful judicial review.
Another provision of the USA PATRIOT Act has caused a great deal of consternation among librarians. Section 215 allows the FBI to apply for an order to produce materials that assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities. Among the “tangible things” that could be targeted, it includes “books, records, papers, documents, and other items”.
Supporters of the provision point out that these records are held by third parties, and therefore are exempt from a citizen’s reasonable expectations of privacy and also maintain that the FBI has not abused the provision. As proof, then Attorney General John Ashcroft released information in 2003 that showed that section 215 orders had never been used.
However, despite protestations to the contrary, the American Library Association strongly objected to the provision, believing that library records are fundamentally different from ordinary business records, and that the provision would have a chilling effect on free speech. The association became so concerned that they formed a resolution condemning the USA PATRIOT Act, and which urged members to defend free speech and protect patrons’ privacy.
They urged librarians to seek legal advice before complying with a search order and advised their members to only keeping records for as long as was legally needed.
Consequently, reports started filtering in that librarians were shredding records to avoid having to comply with such orders.
In 2005, Library Connection, a nonprofit consortium of 27 libraries in Connecticut, known as the Connecticut Four worked with the ACLU to lift a gag order for library records, challenging the government’s power under Section 505 to silence four citizens who wished to contribute to public debate on the PATRIOT Act. This case became known as Doe v. Gonzales. In May 2006, the government finally gave up its legal battle to maintain the gag order. In a summary of the actions of the Connecticut Four and their challenge to the USA PATRIOT Act, Jones (2009: 223) notes: “Librarians need to understand their country’s legal balance between the protection of freedom of expression and the protection of national security. Many librarians believe that the interests of national security, important as they are, have become an excuse for chilling the freedom to read.”
Another controversial aspect of the USA PATRIOT Act is the immigration provisions that allow for the indefinite detention of any alien who the Attorney General believes may cause a terrorist act.Before the USA PATRIOT Act was passed, Anita Ramasastry, an associate professor of law and a director of the Shidler Center for Law, Commerce, & Technology at the University of Washington School of Law in Seattle, Washington, accused the Act of depriving basic rights for immigrants to America, including legal permanent residents. She warned that “Indefinite detention upon secret evidence—which the USA PATRIOT Act allows—sounds more like Taliban justice than ours. Our claim that we are attempting to build an international coalition against terrorism will be severely undermined if we pass legislation allowing even citizens of our allies to be incarcerated without basic U.S. guarantees of fairness and justice.” Many other parties have also been strongly critical of the provision. Russell Feingold, in a Senate floor statement, claimed that the provision “falls short of meeting even basic constitutional standards of due process and fairness [as it] continues to allow the Attorney General to detain persons based on mere suspicion”.The University of California passed a resolution condemning (among other things) the indefinite detention provisions of the Act, while the ACLU has accused the Act of giving the Attorney General “unprecedented new power to determine the fate of immigrants … Worse, if the foreigner does not have a country that will accept them, they can be detained indefinitely without trial.”
Another controversial aspect of the USA PATRIOT Act is its effect on the privacy of Canadians living in the province of British Columbia (B.C.). British Columbia’s privacy commissioner raises concerns that the USA PATRIOT Act will allow the United States government to access Canadians’ private information, such as personal medical records, that are outsourced to American companies. Although the government of B.C. has taken measures to prevent United States authorities from obtaining information, the widespread powers of the USA PATRIOT Act could overcome legislation that is passed in Canada. B.C. Privacy Commissioner David Loukidelis stated in a report on the consequences of the USA PATRIOT Act, “once information is sent across borders, it’s difficult, if not impossible, to control”.
In an effort to maintain their privacy, British Columbia placed amendments on the Freedom of Information and Protection of Privacy Act (FOIPPA), which was enacted as law on October 21, 2004. These amendments aim to place more firm limitations on “storing, accessing, and disclosing of B.C. public sector data by service providers.” These laws only pertain to public sector data and do not cover trans-border or private sector data in Canada. The public sector establishments include an estimated 2,000 “government ministries, hospitals, boards of health, universities and colleges, school boards, municipal governments and certain Crown corporations and agencies.”In response to these laws, many companies are now specifically opting to host their sensitive data outside the United States.
Legal action has been taken in Nova Scotia to protect the province from the USA PATRIOT Act’s data collecting methods. On November 15, 2007 the government of Nova Scotia passed a legislation aimed to protect Nova Scotians’ personal information from being brought forward by the USA PATRIOT Act. The act was entitled “The new Personal Information International Disclosure Protection Act”. The goal of the act is to establish requirements to protect personal information from being revealed, as well as punishments for failing to do so. Justice Minister Murray Scott stated, “This legislation will help ensure that Nova Scotians’ personal information will be protected. The act outlines the responsibilities of public bodies, municipalities and service providers and the consequences if these responsibilities are not fulfilled.”In the 1980s, the Bank of Nova Scotia was the center of an early, pre-Internet data-access case that led to the disclosure of banking records.
After suspected abuses of the USA PATRIOT Act were brought to light in June 2013 with articles about collection of American call records by the NSA and the PRISM program (see 2013 mass surveillance disclosures), Representative Jim Sensenbrenner, Republican of Wisconsin, who introduced the Patriot Act in 2001, said that the National Security Agency overstepped its bounds. He released a statement saying “While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses.” He added: “Seizing phone records of millions of innocent people is excessive and un-American.”
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