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The Impact Of The United States Patriot Act

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Action Research Paper

The USA PATRIOT Act was passed in October 2001, 45 days after the September 11th attacks against New York City and Washington D.C. . The statute’s primary goal is to provide U.S. law enforcement with enhanced tools to combat terrorism. Numerous social and political associations, including the American civil Liberties Union (ACLU), view the Act as unconstitutional and believe that its provisions can be used to violate civil rights. The following are questions which will guide my argument: “Is the Patriot Act unconstitutional?”, “Has the Patriot Act been used to violate the rights of U.S. citizens?”, and “Has the Patriot Act been effective in preventing terrorism?”

Section 1: Problem Definition

Of the many controversies surrounding the Patriot Act, most prominent is over the accusation that the Act violates the first and fourth amendments to the U.S. Constitution. The First Amendment protects free exercise of religion, freedom of speech, freedom of the press, and the freedom of peaceable assembly. Opponents of the Act claim that certain components specifically infringe freedom of speech and freedom of the press. Because the Patriot Act is designed to help law-enforcement agents identify potential terrorists, any civilian is susceptible to scrutiny under its authority. Section 215 of the Patriot Act enables the FBI to initiate investigations based on expressions protected under the First Amendment, including: websites viewed, books read, and emails sent. While this does not constitute a direct violation of the first amendment, it discourages individual expression, while encouraging profiling based on political and religious interests. Another instance in which freedoms were challenged involved the use of national security letters (NSL). An NSL is a subpoena issued by the FBI to gather information on terrorist activity. In 2005, several library officials were served NSLs and issued nondisclosure orders (gag orders). Recipients of NSLs must comply immediately and may not reveal to anyone that he/she has received an NSL, however the library officials enlisted support of the ACLU. When the case was brought to court the presiding Judge Hall declared the portion of the Patriot Act which included the gag order unconstitutional, writing: ” The potential for abuse is written into the statute; the very people who might have information regarding investigative abuses and overreaching are preemptively prevented from sharing that information with the public.” Between 2001 and 2007, more than 140,000 NSLs were issued, about 2,000 without authorization. Each national security letter delivered could yield massive amounts of personal data on innocent U.S. citizens’ lives. Many argue that gathering this information threatens the ‘Freedom of beliefs’ protected by the First Amendment.

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More glaring are the potential violations of the Fourth Amendment. The Fourth Amendment guarantees the right of people against unreasonable searches and seizures. Searches must also be made with a warrant and probable cause. The Patriot Act designated ‘sneak and peek’ searches as standard investigative procedure. A ‘sneak and peek’ search warrant is used to covertly break and enter onto private premises without the owner’s knowledge. This technique has been criticized because it is applied to ordinary criminal investigations, not only terror cases. This can fundamentally change the way that searches are carried out. By not notifying occupants of searches, law-enforcement removes a check on its power. According to the ACLU, delayed-notice warrant numbers will increase while the Patriot Act remains law. Concern over the Patriot Act’s interference with First and Fourth amendment rights has made in unpopular among a number of civil liberties advocacy organizations. Even the Patriot Act’s author, Congressman Jim Sensenbrenner (R-Wisconsin), has expressed his concerns over the NSA’s use of the legislation: ” I stand by the Patriot Act and support the specific targeting of terrorists by our government, but the proper balance has not been struck between civil rights and American security,”.

Another effect of the Patriot Act that has been challenged is the violation of a perceived ‘Right to Privacy’. Though the U.S. constitution provides no explicit right to privacy, over time federal courts have interpreted Amendments from the bill of rights to protect the privacy of individuals. The First Amendment is said to protect ‘Privacy of Beliefs’ while the Fourth amendment protects ‘Privacy of the Person and Possessions”. The Ninth Amendment, which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”, has been used to argue for a constitutional right to privacy. Section 215 of the Patriot Act essentially authorizes warrantless wiretapping and mass surveillance of records held by third parties (Such as internet and phone-service providers). While much of this information is disorganized metadata, agents can track individual web usage or mine massive amounts of data from millions of people. Until 2005, the FBI’s secret Carnivore program was used to monitor and asses the web-use of individuals. Promoted as a counterterrorism tool, Carnivore was criticized by libertarians and internet users who found its tactics ‘Orwellian’. When the program was shelved in 2005, it was replaced by more complex, modern software which continues the work of its predecessor. The full extent of the NSA’s domestic spying efforts were revealed in 2010 by NSA whistleblower and former NSA consultant, Edward Snowden, who claimed that ” The bottom line is that terrorism has always been what we in the intelligence world would call a cover for action. Terrorism is something that provokes an emotional response that allows people to rationalize authorizing powers and programs that they wouldn’t give otherwise.” While a right to privacy may not be guaranteed in the Constitution, it is a freedom valued by millions of Americans and citizens of international democracies.

Unfortunately few Americans have access to unbiased information about the USA PATRIOT Act and similar legislation. Even fewer have read the Act themselves. Consequently, many Americans form opinions based on spun information provided by popular media. Blind support or opposition of any issue is dangerous, especially when concerning national security. In the worst cases, individuals base their opinions on fear and bigotry, in place of reason and principle. Such is the case with author D.A. Hänks. His book, Patriot Act: a Novel of Resistance, is, in essence, a modernized interpretation of The Turner Diaries.

Section 2: The Argument for Change

In dealing with issues presented by the Patriot Act, a certain consideration must be applied. Direct suppression of the Patriot could leave Law-enforcement unequipped in fighting terrorism, but a delayed nullification of the law is not a preferable alternative. Enter rep. Jim Sensenbrenner .His proposed bill, H.R. 3361 (USA FREEDOM Act), would restrict government eavesdropping, data mining and internet monitoring, but leave the remainder of the USA PATRIOT Act intact. The Act already passed in the House by a wide majority and is now in the hands of the Senate, however Amnesty International, The Electronic Frontier Foundation, And a coalition of the largest U.S. technology companies including Google and Microsoft, all withdrew support from the bill after it was secretly gutted before consideration by the House. In its modified form, the bill still “bans bulk collection, includes important privacy provisions, and sends a clear message to the NSA: We are watching you.”(Sensenbrenner) The revised bill also fails to fully protect the privacy of non-U.S. persons and has a relatively minor impact on NSA spying as an institution. In fact, a bipartisan group of legislators who had originally supported the measure, opposed its passage, fearing that it would

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