The duration of my studies at (INSERT NAME OF UNIVERISTY HERE) has been a captivating, engaging and invaluable experience due to a number of individuals that have made it unforgettable and as such I would like to acknowledge their contributions to my scholastic achievement. First and foremost I would like to extend my utmost gratitude to (INSERT NAME OF SUPERVISER HERE) for his patience, direction and encouragement throughout the research and development of this dissertation. Without his help and guidance this dissertation would not have been possible and as such I would like to thank him for his invaluable assistance.
Furthermore, for the stimulating lectures, interesting perspectives and captivating lessons I would like to thank the following professors (INSERT NAMES HERE) to whom I owe my enriching University experience. Their wealth of knowledge has been transformative to say the least and as such I owe much of my current academic progress to their help and assistance.
Executive Summary
The US government, under the Bush administration, passed the US PATRIOT Act into law after the September 11 attacks. The PATRIOT Act was aimed at improving the quality of counterterrorist investigations by giving law enforcement officers immense powers to search and survey terrorists. However, the PATRIOT 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. Section 213 has been dubbed the “sneak and peak” section given its use in allowing law enforcement officials to examine the possessions, items and records of a suspect without giving them prior notice regarding the investigation. Under section 213, law enforcement officials are allowed to delay the notice of execution involving criminal searches on a person’s property or records. Prior to the introduction of section 213, standard procedures involving the an examination of a suspect’s property usually involved the use of a court mandated warrant at which point law enforcement personnel visited the premises of the suspect and conducted a search of the property for evidence in relation to the case that is being investigated. Under section 213, a search can be conducted without the knowledge of the suspect wherein law enforcement personnel can “sneak” onto the property or investigate that individual’s records without immediately notifying them. Section 215 of the PATRIOT Act on the other hand greatly increased the capacity of law enforcement agencies within the United States to seize business and third party records of individuals that they suspect of being complicit in domestic terrorist activities. Under the original 1978 Act, the FBI needed to obtain permission from a Foreign Intelligence Surveillance Court in order to seize the business records of local businesses within the U.S. that were suspected as being utilised by foreign agents. This process normally involved a court approved order to seize the actual records of the business itself section 215 of the PATRIOT Act significantly expanded the scope and power of the law enforcement agencies wherein the limitations that were put in place by FISA in relation to the type of entities whose records could be seized were eliminated. This in effect allowed the FBI and other law enforcement entities within the U.S. to seize business records and information from entities such as internet service providers, phone companies, as well as an assortment of other enterprises. It is the assumption of this paper that sections 213 and 215 are in need of considerable revision given the sheer potential for the abuse of public privacy that they could bring about.
Introduction
Background of the Study
The main crux of the debate involving the PATRIOT Act and privacy rights is the lack of due process which creates the potential for abuse by law enforcement agencies. One clear example of this can be seen in the files that were released by former NSA contractor Edward Snowden. It was revealed that under the PATRIOT Act, a vast programme of domestic surveillance was being conducted by the government; the NSA (National Security Agency) was shown to have recorded and stored the phone calls and emails of millions of Americans despite the fact that it is unlikely that a majority of them would be involved in activities that could classified as domestic or international terrorism.
Before the adoption of the PATRIOT Act, US law required that the police and other security agents seek the issuance of a warrant of search from a judge on proof of ‘probable cause’ in any involvement in criminal activities of the person intended to be searched (Casey 2007). 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 (Casey 2007).
While the PATRIOT Act was formed as a direct result of the events leading up to 9/11 (i.e. terrorists training to take over planes within the U.S. who then subsequently used such skills to commit acts of terror), the fact remains that the term “international and domestic terrorism” can apply to a broad range of possible factors and events (Matz 2008). Ordinarily, this may not seem to be a big issue given the broad scope of potential terrorist activities (ex: environmental terrorism by local environmentalists, mass shootings by gunmen against citizens within the country, etc.), however, by giving law enforcement agencies such broad discretion over what can be defined as terrorism, this leads to instances where the use of the PATRIOT Act can be implemented by justifying search and seizure operations under the guise of a domestic terrorism issue when in reality such cases fall under the jurisdiction of normal criminal cases. This circumvents proper due process wherein sufficient presentation of probable cause is necessary in order to issue warrants of arrests, observation, seizure, etc (Matz 2008).
As stated earlier, the potential for abuse under such a method is massive and as evidenced by the NSA’s PRISM programme (a government programme specifically created to mine and monitor digital data in order to track and monitor the actions of possible threats to the U.S. government both domestic and abroad), the aforementioned “potential” has manifested into a real and actual threat to privacy wherein broad discretionary powers accorded to the government through the PATRIOT Act has resulted in the collective monitoring of the private communications of millions of Americans (Lee 2003). When examining this particular precedence in privacy violation under the guise of domestic protection, it becomes immediately obvious that a far more concise definition of domestic terrorism as well as a limitation of powers related to the PATRIOT Act is necessary in order to safeguard the lives and privacy of the American people (Cowles 2004).
One of the current definitions for domestic terrorism can be seen under the failed Violent Radicalisation and Home Grown Terrorism Prevention Act of 2007 which defines domestic terrorism as:
“………the use, planned use, or threatened use of force or violence by a group or individual born, raised, or based and operating primarily within the United States or any possession of the United States to intimidate or coerce the United States government, the civilian population of the United States, or any segment thereof, in furtherance of political or social objectives.” (Moynihan 2013)
From this definition, it can be seen that terrorism is utilised as a means to an end through which an individual or a group of people are seeking the implementation of a particular objective. Examples of this can be seen in the manifestos created by domestic terrorists such as Anders Behring Breivik, a Norwegian domestic terrorist responsible for the 2011 Norway attacks wherein 77 people were killed with several hundred others being injured (Moynihan 2013). Classified as an act of domestic terrorism, the purpose behind these attacks was due to his negative view regarding Muslim immigration into Europe and how the Islamic religion was at the source of many of the world’s problems at the present (Moynihan 2013).
Similarly, the “Unabomber” (Theodore John “Ted” Kaczynski) was responsible for several acts of domestic terrorism within the U.S. wherein he mailed homemade bombs to people resulting in the deaths of 3 individuals and injuring 23 others (Sarasohn 2003). This was done due to his view that industrialism and the progress of modern technology has in effect eroded human freedom resulting in the need to bring greater awareness to what has become, in his eyes, a deterioration of modern human society (Sarasohn 2003). Lastly, the 9/11 attack on several prominent targets within the U.S. (the Pentagon, the World Trade Centre, etc.) were all conducted via agents of the terrorist organisation Al Qaeda in order to sow chaos in the U.S. in retaliation for what they believed was unjust interference of the U.S. in the affairs and culture of several countries in the Middle East (Sarasohn 2003).
Based on the various cases of domestic and international terrorism that have been presented thus far, it can be seen that there is no single defining social or political objective that can be attributed to terrorists as a whole. It is due to this that what can be attributed as a case of possible domestic terrorism can also shift based on a myriad of possible interpretations (Swartz 2004). For instance, in 2013 police Texas teenager Justin Carter was arrested on charges that he was threatening to emulate the incident that occurred in Sandy Hook Elementary where he would go on a shooting spree. While Carter was able to show that he was merely kidding, the fact remains that he was jailed as a direct result of his actions due to what the police defined as a “potential domestic terrorist threat” (Ritchey, Paez, McGregor & Sendra 2013).
Expounding on this case, researchers such as Dewey (2013) have noted that there has been a shift in the type of “terminology” utilised by law enforcement authorities wherein they have been utilizing terms such as: “domestic threat”, “potential terror suspect”, “national security threat”, and “threat to public safety”. While this may not seem significant, Dewey (2013) explains that changes in terminology when conducting official law enforcement activities is actually considerably significant in light of the PATRIOT Act. By labelling a person a national security threat or a potential terror suspect, this results in a different method of categorisation wherein aspects related to the PATRIOT Act can be implemented during the investigation (Dewey 2013).
Dewey (2013) explains that the problem with this is that the upsurge in the application of the aforementioned terminology, which did not appear as often prior to 2001 (i.e. 9/11), has been increasingly utilised to describe even ordinary incidents of crime. Since what can be defined as domestic terrorism can overlap with can be defined as violent crime or even non-violent crime (as seen in the 2013 Carter vs. The State of Texas case), this results in law enforcement officials unilaterally employing its use in a wide variety of cases when proper due process and standard methods of investigation should have been implemented instead.
An example of this can be seen in statements by law enforcement officials wherein they say that the implementation of the PATRIOT Act has in effect eroded the supposed bureaucratic and legal “wall” that was in place when it came to intelligence gathering and criminal investigation procedures. They even go so far as to state that it was this same “wall” that hampered the capability of law enforcement officials prior to 9/11 which may have contributed towards the success of the terrorist attack (Courtney 2013). However, it should be noted that despite the successes associated with the PATRIOT Act (39 terrorist acts have supposedly been prevented since its creation), the supposed “wall” that was removed is actually the various methods of due process and legal assessment that were put in place to limit the powers of law enforcement agencies and ensure that they were under proper judicial oversight (Courtney 2013).
Garlinger (2009) delves more into the role of judicial oversight by explaining that while it is the role of the police to protect the general public, there is always the potential for “overreaching actions” to occur in relation to the role of public guardianship. In other words, without sufficient preventive measures in place, there is the potential for an abuse of power to occur. The Latin phrase “Quis custodiet ipsos custodes” (who watches the watchmen) is rather apt when it comes to showcasing the role of proper judicial oversight since through such a process, proper regulation of law enforcement activities can be done. Oversight through the judicial system can be thought of as an aspect of the checks and balances system that is in place in the democratic system utilised within the U.S. government wherein power is not overly concentrated into government agency (Garlinger 2009). This helps to prevent abusive actions which could curtail the tenets of democracy which were established within the U.S. in order to “resist tyranny” as described by the founding fathers of the country (Garlinger 2009). It is based on this that when examining the PATRIOT Act and how it has enabled law enforcement agencies to proceed with operations without sufficient oversight, this creates a worrying concentration of power into a single sector of the government which can actually be described as going against the checks and balances system that was originally put in place to prevent such an outcome from occurring.
Going back to the issue of preventing terrorist activities, the US PATRIOT Act aims at providing the necessary intelligence for helping to curb domestic and international terrorist activities that are 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 (Tigar 2006). The Act permits 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 (Tigar 2006). 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 (Kranich 2004). Additionally, this Act limits the coercing power of influential individuals on the government. The inherent issue though is that while the act is successful in all the aforementioned preventive actions to ensure national security against domestic and international terrorist threats, it does so through the use of operations that lacks sufficient judicial oversight (Kranich 2004). The end result, as evidenced by NSA’s PRISM programme, is the potential widespread violation of the privacy rights of ordinary American citizens.
It is based on this that this paper proposes to determine whether the US PATRIOT law fosters infringement of people’s rights of privacy, which the US constitution guarantees to every individual in the country. Each citizen has the right to maintain this right. People who infringe the privacy rights of others are liable to punishment as dictated by the law.
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.
Theoretical Framework for Analysis
This section elaborates on the use of grounded theory as the primary guiding framework for analysis that will be utilised by the researcher in order to examine the various literary sources that will be included in this study. Grounded theory focuses on developing assumptions based on the data that has been presented via academic sources or through data collection methods utilised by the researcher. By following grounded theory, the research will be able to determine where significant problems exist in relation to privacy violations and what can be done in order to address such issues.
Grounded Theory
Ground theory does not start with an immediate assumption regarding a particular case (i.e. in this instance, privacy rights violations). Instead, the theory focuses on the creation of an assumption while the research is proceeding. This process is particularly helpful when it comes to investigating issues where there is no clear cut answer to the issue given (ex: the animal testing versus human safety, privacy rights versus potential domestic terrorist threats, etc.).
Ground theory utilizes the following framework for examination:
- What is going on?
- What is the main problem within the organisation for those involved?
- What is currently being done to resolve this issue?
- Are there possible alternatives to the current solution?
This particular technique is useful in helping to conceptualise the research data in such a way that logical conclusions can be derived from the data. By utilizing the framework shown above, the researcher will be able to adequately examine the various issues in relation to the balance between privacy violations and the prevention of domestic terrorism.
Research Strategy
The proposed research strategy will adopt 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. The secondary sources of data will mainly be articles that relate to the topic. These sources will be selected based on the contents, the duration, and relevance to this study.
The first step in the research will be the determination of the key words that will be used to search for the relevant articles. For the purpose of this particular research, the key words that will be selected include the US PATRIOT Act, privacy rights, and security threats. The next step in the research will be the selection of an appropriate database that will provide relevant results while searching the key words. Many databases can provide results for the searched word. These databases will be selected based on the type of literature that each holds. A search of the above key words will provide several results, and hence the need for a criterion to determine which of the search results is appropriate for the study.
Apart from the use of research that has been done on the topic, the other important aspect to be used in the analysis of whether the US PATRIOT Act is interfering with the privacy rights of individuals will determine the number of cases on the same. A decision in this research will be made based on the number of these cases, with correlations between the number of these cases and the Act being used as evidence.
Study Limitations
The proposed research aimed 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.
The research has several limitations. The determination of the right articles and cases to be used to assess the relationship between the Act and the privacy rights requires time and resources. The other limitation is in the accuracy of the findings. No research shows that the number of cases emerging from an Act determines the relationship of a particular Act to certain freedoms such as those discussed above. These limitations are likely to influence the research. However, the results will not be altered.
The first criterion in the search is that all the articles should be in English. The databases for filtering the search results will be set to provide articles that are written in English only. Articles in any other language will be rejected and discarded from the search results. The results that fulfil the selected criterion will be analysed further to ensure that they are relevant to the topic under discussion. Their references will also be analysed to find out whether they could be useful to the study. The final number of selected articles will be used for the analysis in the study. The analysis to be performed on the results of the search will help determine the relationship between the US PATRIOT Act and the privacy of the American citizens.
The research questions will be answered through the assessment of the results of the data analysis. The first question of whether the provision of section 2215 in the US PATRIOT Act erodes people’s rights to privacy will be answered by comparing the literature results that argue for and/or against these two requirements of the law. The second question of whether section 213 of the US PATRIOT Act erodes the US people’s right of privacy will also be evaluated through assessing the section of the Act and the research that has been done against this section. The question of whether the provisions of the Act erode people’s privacy rights will be answered through the analysis of the literature findings. The analysis will utilise the cases and judgements delivered since the enactment of the US PATRIOT Act in October 2001. These cases will be used to obtain qualitative data for further analysis of the Act and the privacy rights.
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.
Methodology
Introduction
This section aims to provide information on how the study will be conducted and the rationale behind employing the discussed methodologies and techniques toward augmenting the study’s validity. In addition to describing the research design that will be used in this study, this section will also elaborate on instrumentation and data-collection techniques, validity and reliability, data analysis, and pertinent ethical issues that may emerge in the course of undertaking this study.
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:
- Examining literature on how sneak-and-peak rule as provided in section 213 of the US PATRIOT Act contravene privacy rights
- Examining literature on the impact of ‘gag-rule’ as provided in section 2215 of the US PATRIOT Act on privacy rights
Research Questions
- Does the provision of section 215 in the US PATRIOT Act erode people’s rights to privacy?
- Does section 213 of the US PATRIOT Act erode US people’s right of privacy?
Research Design
Qualitative Research Design
The book “Qualitative Research: A Guide to Design and Implementation” explains that:
“…….qualitative research is a type of exploratory research in that it tries to examine and explain particular aspects of a scenario through an in-depth method of examination” (Merriam 2009, 3-6).
It is due to this that qualitative research is normally applied to studies which attempt to develop an understanding of phenomena within an appropriate context which in this case involves the PATRIOT Act how it could act as a means of unilateral privacy violation (Merriam 2009, 26-21).
This research will deploy secondary data to achieve its aim. It will draw its data from law journals, books, and complied cases involving alleged participation in acts that result in the erosion of privacy rights of Americans. Quantitative data on the number of such cases since the enactment of the US PATRIOT Act in October 2001 will be gathered for further analysis. Related qualitative information such as race, religious inclination, and ethnicity of the accused persons will also be compiled.
Study Approach
Document Analysis
Document analysis is primarily focused on an examination of academic texts in order to draw conclusions on a particular topic (Merriam 2009, pp 139). Utilizing this approach in this study was seemed as the best course of action when it comes to the type of research needed when examining the attitudes and perspectives of the general public regarding the Patriot Act and Privacy violations. Since document based research utilizes the views and opinions from other researchers in order to create a succinct evaluation regarding a particular case being examined, it was decided that this would be the best method analysis (Merriam 2009, pp 135-165). In comparison, survey based approaches or even narrative analysis was deemed as “inappropriate” since the focus of the research is violation of privacy rights and not the perception of a select group of individuals (i.e. recruited research subjects) regarding their perception of privacy rights versus domestic security. In the case of document analysis, the researcher can examine numerous perspectives from other researchers to see if there is some sort of common theme in their evaluation of the Patriot Act and privacy rights which can be used as the basis behind the concluding views of this study.
As explained by Merriam (2009):
“…….. a research study that relies almost entirely on academic literature without other methods of external data collection runs the risk of being confined primarily to the results exhibited by the research studies utilised “(Merriam 2009, pp 135-139).
This is the drawback when it comes to utilizing document analysis as the primary method of data collection since the data sources are severely constrained to work already done by other researchers. On the other hand, relying purely on academic literature does have certain advantages:
- It reduces the amount of time need during the initial stages of preliminary research (Merriam 2009, pp 139- 141).
- Document analysis is far easier to do due to the plethora of resources that are available through the University library.
- It enables the research to more effectively justify the results since the data has already been succinctly presented (Merriam 2009, pp 139- 141).
- Data has already been verified by previous researchers (Merriam 2009, pp 139- 141).
Taking into consideration the needs of the study on the Patriot Act and privacy rights, this particular qualitative research method seems to be the most appealing given that the method of data collection is simple, effective as well as efficient while at the same time staying with the necessary level expected from a PHD level study.
Data Collection
The proposed study will collect 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. Therefore, the data will be gathered from secondary sources, which will be selected from the appropriate databases and presented using graphs and tables.
Secondary research uses information from other studies. The proposed study will collect 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. Therefore, the data will be gathered from secondary sources, which will be selected from the appropriate databases and presented using graphs and tables.
Literature Review
Introduction to Literature
This section reviews and evaluates literature and theories on the PATRIOT Act, the privacy rights of American citizens, cases involving privacy violations and an assortment of details pertaining to the main research of objectives of this paper. This section thus discusses various aspects related to law enforcement practices, the impact of the PATRIOT Act on the safety and security of the American people, current views that are either for or against privacy in lieu of safety and security as well as other such topics that have been determined by the researcher as being necessary for the study.
Evaluation of Section 215 of the PATRIOT Act
Section 215 of the PATRIOT Act greatly increases the capacity of law enforcement agencies within the United States to seize business and third party records of individuals that they suspect of being complicit in domestic terrorist activities (Sturdevant 2011). First and foremost, it should be noted that Section 215 has its origins in the U.S. Foreign Intelligence Surveillance Act of 1978 which specifically outlines procedures in relation to the search and seizure of information belonging to foreign intelligence agencies or agents of foreign powers that are in operation within the U.S. Under the original 1978 Act, the FBI needed to obtain permission from a Foreign Intelligence Surveillance Court in order to seize the business records of local businesses within the U.S. that were suspected as being utilised by foreign agents (Henning, Bazan, Doyle & Liu 2010). This process normally involved a court approved order to seize the actual records of the business itself or to utilize a variety of physical or electronic methods of surveillance in order to monitor the suspected foreign agents or foreign criminal enterprises. While FISA (Foreign Intelligence Surveillance Act) limited the process of information seizure and gathering to businesses such as hotels, car and truck rental agencies, storage and rental enterprises and motels (as well as other similar enterprises deemed appropriate), section 215 of the PATRIOT Act significantly expanded the scope and power of the law enforcement agencies wherein the limitations that were put in place by FISA in relation to the type of entities whose records could be seized were eliminated. This in effect allowed the FBI and other law enforcement entities within the U.S. to seize business records and information from entities such as internet service providers, phone companies, as well as an assortment of other enterprises (Lucas 2012). Not only that, the expansive powers associated within section 215 also authorised the FBI and other law enforcement agencies to obtain information associated with the term “records”. What this meant was that any tangible elements related to “records” could be seized by local law enforcement (Lucas 2012). This information could include, but is not limited to, phone records, paper documents, recorded conversations, emails, books, and other similar pieces of recorded information. Furthermore, section 215 also states that the entities whose records have been seized are to disclose that the FBI has actually sought their records due to the possibility of it adversely impacting the investigation (Kenny 2003). If the provisions related to section 215 seem familiar, this is due to the fact that they have been cited as the primary means by which the NSA (National Security Agency) of the U.S. justified its PRISM programme which obtained the email, online activity and phone records of millions of Americans over a period of 5 – 6 years since its inception during the latter half of the Bush administration (Kenny 2003). In order to better understand how data was collected and stored it is important to note that individual telephone and internet service providers within the U.S. keep detailed computer records of phone conversations, texts, voicemails, IP addresses and a variety of personally identifying information on their company servers as a means of keeping track of billing requirements (Thur 2009). Other services given by these companies in relation to email and text servers run on an independent network that is utilised to store client information (i.e. the information people see in their inbox) until it is subsequently deleted by the customer. IP addresses are utilised as a method of accessing the service provider’s network and are a unique identifying “key” so as to prevent unauthorised access (i.e. people that do not pay to utilize the service) (Thur 2009). In certain cases, the internet activity of a certain consumer can be tracked via their IP address and its subsequent connection to the company. Every month, most of these records are normally purged from the system in order to make way for new records with the exception of emails and texts (Thur 2009). However, when it came to the PRISM programme, instead of these records being purged, they were subsequently collected by the NSA in order to search for identifying “markers” and terminology in relation to potential domestic terrorist activity. One of the current mistakes in relation to the debate versus the PATRIOT Act and privacy rights is the assumption that the personal privacy of millions of Americans has in effect been violated since all their personal and intimate conversations have been read and observed (Vaidhyanathan 2014). This is actually fallacious when taking into consideration the sheer amount of daily emails, voicemails, texts and associated methods of communication that goes through a phone company on a monthly basis. The PRISM programme would have to hire millions of people in order to shift through every single email and conversation sent and even then such a method of examination would be highly inefficient. Instead, the PRISM programme works through the use of a computer algorithm that searches for specific phrases, wording, and associated terminologies that are normally related to individuals that are planning some form of domestic terrorist attack on U.S. soil (Vaidhyanathan 2014). For instance, it was seen in the case of the 9/11 hijackers that a majority of the planning and communication of the terrorist attack was conducted through email and text messaging. As such, in combination with an examination of associated terminologies the PRISM programme also focused specifically on communication between parties in the U.S. and those in countries that harboured known affiliates of various terrorist networks (Stevens & Doyle 2009). From this particular perspective, it can be seen that while it may be true that individual records of American citizens were recorded, the fact remains that no in-depth examination (i.e. someone actually physically listening in, read the text or email, etc.) was conducted and that computer programmes merely searched for phrases that indicated an individual was associated with a known terrorist group and it was only those individuals that were thoroughly investigated by the government (Stevens & Doyle 2009). This is not to justify the actions of the PRISM programme as wholly being in the right, however, when taking into consideration the fact that the recorded conversations and interactions of American citizens were not wholly read and examined and were merely scanned via a computer programme, it does show that at least some semblance of privacy was kept (Stevens & Doyle 2009).
Going into the issue of the ease of obtaining records, it was mentioned in the background section of this study that one of the worrying aspects of the PATRIOT Act was the lack of sufficient government oversight in the collection and investigation proceedings conducted by law enforcement under the act. As seen in the case of Section 215, the requirements for obtaining an order from the court in order to seize business records have been substantially eased (Mell 2002). For instance, prior to the establishment of the PATRIOT Act, it was necessary for law enforcement agencies such as the FBI to present “specific and valid facts” to the FISA showcasing sufficient probable cause that a particular person or organisation was part of a foreign power or foreign organisation in order to warrant investigation via record seizure. Due to provisions enacted through section 215, all law enforcement officials would need to do to get a court mandate is indicate that the records or materials being sought are in relation to an investigation of a person or organisation related to possible terrorist or subversive foreign intelligence threat against the U.S. (Mell 2002). As a result of the new provision, the judge in question has little in the way of sufficient discretion when reviewing the application and merely checks to see if the application meets the requirements outline by section 215 when it comes to investigations involving possible domestic terrorist threats. If the application meets all the necessary requirements, the judge must issue an order fulfilling the request of the law enforcement agency. The problem with section 215 in this particular case is that it takes away the requirement that an investigation by a law enforcement agency must prove that a person is part of a subversive foreign power or organisation prior to gaining approval for record seizure. This means that while in the past FISA specifically mandated a focus on disruptive foreign agents within the country and granted powers based on this focus, the present however is far different wherein section 215 of the PATRIOT Act in effect expanded the focus to include ordinary American citizens (Warwick 2013).
Warwick (2013) delves more into to this issue which is related to the shift in the use of law enforcement terminologies that was mentioned in the background section of this paper. Warwick (2013) explains that within the past few years the PATRIOT Act has increasingly been utilised in investigative procedures where it is used in non-terrorist alleged crimes. In laymen’s terms, this means that the PATRIOT Act has been utilised by law enforcement agencies in order to investigate crimes that are not in any way related to terrorist activities. Examples range from investigating drug traffickers, copyright infringers, to information in relation to tax evaders. The analysis of Lee & Newton (2014) shows that section 215 of the PATRIOT Act was often utilised in order to seize records and validate the actions of the law enforcement agencies involved in such cases. The means of justification that was utilised was through a shift in terminology wherein in order to bypass the normal procedure of due process during an investigation, the law enforcement agency conducting the investigation simply labelled the suspects as “potential domestic terrorist threats” or “subversive elements against U.S. interests”. Despite the fact that the people being examined were for all intents and purposes American citizens, the change in terminological classification resulted in them being categorized under the same category as terrorists which enabled law enforcement agencies to conduct search and seizure operations (Lee & Newton 2014). This normally would require substantial evidence proving the necessity of such an act, however, as explained earlier regarding the changes brought about by section 215, this in effect removed the necessity of providing evidence by simply presenting sufficient suspicion. The mere fact that only suspicion is necessarily in order to obtain records shows how thin the barrier is between the government and your personal information. Wills (2002) discusses more about this issue by stating that barriers to information are similar in scope to present day 4th Amendment to the Constitution which focuses on the privacy of the person and possession within their own home unless sufficient probable cause with a warrant has been issued which deems it necessary to search their premises. While it may be true that at the present, the U.S. Constitution and the Bill of Rights is insufficiently expansive to the point that it has encompassed the privacy of information, Doherty (2010) states that personal information should also be considered as a form of possession. From the perspective of Doherty, an individual’s private and personal information can be considered as a form of possession that they have control over. As personally identifiable information becomes a valued resource at the present that needs to be safeguarded (ex: Social Security number and credit card numbers), it should thus be regarded as a private and personal possession and should have the same barriers to appropriation without sufficient consent. While there are methods currently in place to protect information that can be regarded as assets (ex: Social Security number and credit card numbers), there far too few barriers in place to protect personal information in the form of written correspondence, email as well as recorded conversations. Present day barriers come in the form of self-imposed protective measures (i.e. the use of online service providers and passwords), should an outside organisation gain access to this information, then this can be considered as a violation of personal privacy (Wills 2002). However, the violation of personal private information has little in the way of sufficient legal repercussion within the U.S. when it comes to criminal investigation. The fact of the matter is, it is this lack of repercussion when it comes to investigation that enabled law enforcement agencies to abuse section 215 of the PATRIOT Act for their own advantage. Galison (2010) explains that a lack of limitation combined with a lack of repercussion creates an environment that is ripe for abuse. As evidenced by the fact that a simple change in terminology has enabled law enforcement agencies to target ordinary Americans for the sort of investigation that is normally reserved for terrorists or subversive foreign agents shows just how easy it would be for privacy rights to be unilaterally violated (Galison 2010). The problem in this case is that there are far too many opportunities for privacy rights to be violated that it would not be surprising if they were violated. The NSA PRISM programme and the current actions involving law enforcement agencies and changes to their investigative terminologies in order to acquire information via section 215 of the PATRIOT Act is evidence enough of how expansive the privacy violations the law promotes are. This is not to say though that all citizens within the U.S. are being investigated and observed, this would be a mistaken assumption given that not even all the law enforcement agencies in the U.S. combined could observe and track every single person and find out every facet of their personal life (Resolution in support of whistleblower Edward Snowden 2013). A more correct assumption regarding the problem of privacy and section 215 is that if a person is placed under suspicion, their personal information should not be immediately subject to automatic retrieval by the government in a way that does not showcase sufficient articulable facts that indicate they have been acting in way that is against the law (Xhelili & Crowne 2012). With the current methodology of information retrieval surrounding section 215 in place, suspicion is all that is needed to get information. Xhelili & Crowne argues that suspicion alone is not a sufficient basis behind what many deem to be a violation of a person’s human right to privacy. Tangible fact that is gained through proper due process and showcases sufficient doubt regarding the current demeanour of the individual being investigated is a necessity since not only does this ensure that police investigations are done properly but it helps to place a barrier between the general public and unilateral seizure of their private information.
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 to 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 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).
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 from accessing personal information and tangible items such as assets from an individual (Rubel 2006). In this sense, privacy rights may be loosely interpreted to mean freedom from interference or the right to 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.
Features that Guarantee Privacy Rights
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, 2013, 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 the 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 (Isakhan & Stockwell 2011). The presiding judge granted the case by ruling that NYPD policy ‘stop and frisk’ amounted to the 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’(Find Law 2013).
The above example reflects the need to seek consent for accessing people’s property as an essential feature for respecting privacy rights. 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 programmemes 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.
Evaluation of Section 213 of the PATRIOT Act
In the current debate over the PATRIOT Act, one of the most highly contested provisions is section 213 which has been dubbed the “sneak and peak” section given its use in allowing law enforcement officials to examine the possessions, items and records of a suspect without giving them prior notice regarding the investigation. Under section 213, law enforcement officials are allowed to delay the notice of execution involving criminal searches on a person’s property or records. Prior to the introduction of section 213, standard procedures involving the an examination of a suspect’s property usually involved the use of a court mandated warrant at which point law enforcement personnel visited the premises of the suspect and conducted a search of the property for evidence in relation to the case that is being investigated (Campaign Calls for Patriot Act Reforms 2013). Under section 213, a search can be conducted without the knowledge of the suspect wherein law enforcement personnel can “sneak” onto the property or investigate that individual’s records without immediately notifying them. This is not to say that no notification will be given, rather, what is done is a process of delayed notification wherein a warrant indicating a search and investigation involving the suspect is in question is given at a later date (Wheeler 2005). Do note though that the precise date and time in which the notice is given is subject to a considerable amount of leeway and could take weeks if not months to actually reach the suspect. Under the analysis of Wheeler (2005), the sneak and peak section of the PATRIOT Act is actually justifiable to a certain degree given the nature of particular investigations. One way in which the act can be justified can be seen in instances where an FBI agent is investigating a suspect’s connection to an international terrorist ring. For instance, if a worker from the Middle East that has migrated to the U.S. has been slated as being “suspicious” given his prior connections to terrorist organisations in the Middle East, it would ruin the investigation if he/she was informed beforehand that they have been placed under suspicion and that an examination of their premises and records via their laptop will be conducted. Under this particular scenario, the FBI agent in question could find absolutely nothing since the suspect could have utilised alternative methods of communication and will most likely be far more careful regarding his/her activities in the near future. Not only that, if this individual is in the likely event an actual agent of a foreign terrorist organisation, they would find a way to inform their counterparts that they are being observed and an alternate terrorist agent could be sent which the FBI would not know about. In order to achieve the best possible outcome in this type of scenario it would be more effective to simply gather information on the suspect without them knowing. This can be done via investigating their phone records, examining their computer and placing in a key logger as well as examining any documents they have in their home. By doing so discretely and without the suspect knowing about it, law enforcement personnel are able to get far more information from which they can coordinate with other branches of law enforcement abroad so as to catch all members of the terror network at the same time. This ensures that all members are accounted for and this prevents other potential suspects from entering the U.S. that law enforcement officials are not aware of. When examining this particular tactic in the face of potential domestic terrorist threats, it actually makes plenty of sense since a potential suspect is least likely to be careless about information if they know that they are under suspicion and that they are actively being watched by the government (Bendix & Quirk 2009). However, despite the fact that this particular provision of the PATRIOT Act makes sense from a law enforcement perspective, various critics are against this particular section since in their eyes the government should never act in secret when it comes to criminal cases. Bendix & Quirk (2009) delves more into this issue by explaining that government transparency in operations is a necessary aspect of good governance since a lack of transparency can often lead to corruption and abuse, this is especially true when it comes to law enforcement operations. The fact that section 213 of the PATRIOT Act allows searches without the suspect even knowing about it can create a worrying precedent wherein unilateral searches can be conducted on the premises of ordinary Americans (Doyle 2009). Though, it should be noted that unlike section 215, section 213 requires a considerable probable cause before a “sneak and peek” action can be allowed by the judge. This leverages a considerable degree of protection when it comes to “sneak and peak” operations to the point that such acts would normally be conducted only on individuals that have been sufficiently vetted as being potential threats to the general safety of the public (Doyle 2009).
On the other end of the spectrum, it should be noted that there is actually a considerable level of legal precedence when it comes to delayed notices. Shaw (2004) explains that for several decades federal courts within the U.S. have actually allowed delayed notices to suspects when it comes to cases involving drug searches, child pornography and even various instances that include organized criminal syndicates operating within the U.S. As stated in the previous section, federal courts realised the necessity of a delay option when it comes to the presentation of search warrants due to the likelihood that evidence would be destroyed, criminals could be warned and the end result is a deadlocked investigation wherein due to the search warrant being served and a lack of evidence at the crime scene, it is more likely for an individual or an organisation to get away with a crime. From the perspective of Jones (2006), the delay option when it comes to criminal can be considered as a recognized necessity given various issues surrounding domestic terrorist threats. A person normally would not keep several hundred pounds of explosives right next to where they sleep and the same applies to incriminating evidence. While it may be true that people can sometimes become careless, law enforcement authorities simply cannot rely on carelessness as a means of procuring evidence and stopping a terror plot from occurring. From a privacy protection standpoint, section 213 of the PATRIOT Act stands on shaky ground. While it may be true that there has been a considerable amount of legal precedence of “sneak and peek” actions prior to the establishment of the PATRIOT Act, there is still much to be understood regarding the possible future repercussions of allowing such a method of search and seizure to go un-vetted without adding some considerable limitations to its use (Doctors outraged at Patriot Act’s potential to seize medical records 2006). One of the common themes in anti-section 213 rhetoric is how critics state that the government could potentially sneak into a person’s home, download their files and get various personal records without them ever knowing about it (Smith, Seifert, McLoughlin & Moteff 2002). Such a concern is valid since that is the purpose of section 213 and can be considered a serious violation of a person’s privacy. On the other hand, unlike section 215, there is the necessity of providing sufficient probable cause when it comes to section 213 and, as such, law enforcement agencies cannot simply conduct a unilateral search without a proper warrant from a judge. If they tried it would be labelled as breaking and entering and would be a serious violation of the 4th Amendment rights of the suspect being investigated. Overall, while section 213 could potentially be considered as a major source of privacy rights violations, the fact remains that when examining its various contexts and how they apply to privacy violations as a whole; it seems unlikely that the American people would need to worry about this particular provision (Resolution on the Need for Reforms for the Intelligence Community to Support Privacy, Open Government, Government Transparency, and Accountability 2013). The fact that it requires judicial oversight and proper due process before a search and seizure operation is authorised helps to ensure that unilateral search operations are prevented in favour of 4th Amendment rights.
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.
With or without evidence, civil rights advocates cite specifically section 213 and 2215 of the US PATRIOT Act as their major concern in the capacity of the Act to breach civil rights (Rubel 2006; Smith 2010). Sneak-and-peak provisions, as enumerated in section 213 of the Act, guarantee much power 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 2215 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 a study on the applicability of the US PATRIOT Act in curbing terrorism, Van Bergen (2003) discusses the case of an 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 the violation of the privacy rights of the US citizens.
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 a 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 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 (Rubel 2006; Cornell Law 2014; Sen 2004). 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.
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.
Results and Discussion
Introduction
This section examines the results of the data collection process accomplished by the researcher. As such, a comparison will be created between the assumptions of the researcher involving the PATRIOT Act and the various facts and arguments presented within the literature review section in order to find any significant correlations or divergences in the viewpoints given.
Defining What Constitutes a Breach of Privacy
To determine what constitutes a breach of privacy, article 12 of the United Nation’s Universal Declaration of Human Rights shall be utilized. The article basically states that:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” (Hiranandani 2011, 1980)
To understand the concept of arbitrary interference and how it impacts privacy rights, the work of Hiranandani (2011) shall be utilized which delves into the issue of personal privacy in the current digital age. Hiranandani explains that arbitrary interference refers to a means of privacy violation that is not subject to sufficient restraint or is done out of random choice rather than through the use of sufficient systems of justification or lawful reasoning. In other words, privacy violation done through arbitrary interference is done simply for the purpose of observation rather than there being a sufficiently justified reason behind the act. One example that Hiranandani points to is the novel Nineteen Eighty-Four by George Orwell which delves into the various methods utilized by the government in monitoring and controlling the civilian population. Hiranandani explains that devices such as hidden cameras and microphones that are ubiquitous in the setting of the book are a good way of showcasing arbitrary interference when it comes to personal privacy violations since they encompass a vast majority of the population without sufficient mandates that limit their use to individuals that should be monitored (i.e. criminals). In the book, everyone is treated as a potential criminal and terrorist and, as such, their personal privacy is limited in favour of protecting the safety of the entirety of the population. From this example, it can be seen that there are parallels between the activities done by the government in the book and the U.S. government in the NSA’s PRISM program. The all encompassing nature of the monitoring program done by PRISM that is done not on specific individuals but on a large portion of the population without restraint and through random choice can be classified as arbitrary interference since all of the activities done “fit” the description of the term (Hiranandani 2011, 1106).
Criterion Utilized for Evaluation
The criterion that is being utilized to evaluate section 213 and section 215 is article 12 of the Universal Declaration of Human rights. While it may be true that the U.S. constitution does not specifically protect against the methods of observation implemented by the PATRIOT ACT, the fact remains that based on article 12, the PATRIOT ACT can be considered an infringement on a person’s human right to privacy. From the perspective of Baghai (2012), there are two statements that explain how the PATRIOT ACT can be considered as a human rights violation. The first is the statement “innocent until proven guilty”, this phrase is often at the crux of lawful methods of judgement and arbitration wherein proving the innocence of a person is at the forefront of an investigation. Yet, when taking into consideration the methods that came about through the PATRIOT ACT, namely the PRISM program that observed the private correspondence of millions of Americans, it seems fallacious to assume that millions of Americans would be guilty of seditious acts against the government (O’Rourke 2005). Further supporting this perspective is the second statement utilized by Baghai, namely:
“Everyone has the right to the protection of the law against such interference or attacks.”
The fact that the PATRIOT ACT actually promotes rather than protects people against arbitrary interference of their privacy is another clear indicator of how the act can be considered a violation of a person’s right to privacy. Baghai explains that observation of a potential suspect that supersedes the rights given to them under article 12 can only be done if it is accomplished through lawful means that can be justified under the pretext of sufficient evidence to showcase that such an individual or group of individuals is guilty of a crime or of committing a potential crime (Baghai 2012, 954). The necessity of evidence to justify the act of observation is essential and, as such, becomes one of the methods by which an evaluation of section 213 and 215 will be evaluated in the succeeding sections. By utilizing article 12 as the criterion for evaluation, it is expected that a sufficient analysis can be conducted involving sections 213 and 215 and whether or not they erode the right to privacy.
Does Section 213 Erode the Right to Privacy?
After examining section 213 and the “sneak and peek” tactics associated with the provision, it would normally be the case that one would agree that its implementation would seemingly violate the privacy rights of the American people. The fact that the government could just enter into your home and collect information about you without you ever knowing is a definite concern and a direct violation of an individual’s 4th Amendment rights. However, before making a decision, it is important to take into consideration several factors. The first factor is that section 213 is specifically focused on individuals that are considered to be a threat to the general public. Meaning that the reason why a sneak and peek operation is necessary is to ensure that the individual in question is not “tipped off” when it comes to the police investigation circling him (Mance 2009). This ensures that information is not destroyed and that they are able to catch all of that person’s accomplices thus leading to a safer situation for the general public. This shows that the section 213 does have a certain means of justifying its current existence. Secondly, there has been a considerable about legal precedence involving delayed warrants and sneak and peek tactics in various types of federal investigations involving individuals that are suspected of being part of organized crime rings or are agents of subversive foreign powers. This means that the current argument that section 213 is an unjust broadening of government powers is somewhat false since it has been in use for quite some time. Thirdly, unlike section 215 wherein record seizure can be done simply under apparent “suspicion”, section 213 requires a considerable level of due process where the police must provide sufficient “reasonable cause” to justify the sneak and peek tactic in question. This means that there is a considerable level of judicial oversight over the actions of the law enforcement agency in question which can act as an effective means of overly abusive behaviour when it comes to search and seizure operations. Since sufficient judicial oversight is in play, this means that the privacy rights for a vast majority of Americans can be protected. It should also be noted that given the sheer volume of the current U.S. population, it would be impossible for the government to conduct a sneak and peek search on everyone. From an objective perspective, it can be deemed that the sneak and peek provision of the PATRIOT Act is actually quite valuable in certain criminal cases. Further analysis of the 4th Amendment in order to see if other violations are at play revealed that when it comes to criminal cases, a search and examination of a suspect’s home is justified in order to prove their innocence or guilt. Without such tactics, guilt can be presumed by the general public in relation to such an individual. From a domestic terrorism prevention perspective, by conducting an investigation discretely and without the suspect knowing about it, law enforcement personnel are able to get far more information from which they can coordinate with other branches of law enforcement abroad so as to catch all members of the terror network at the same time. This ensures that all members are accounted for and this prevents other potential suspects from entering the U.S. that law enforcement officials are not aware of. Based on what has been mentioned so far, it becomes clear that section 213 is not a direct violation of privacy rights and its use can be even be justified in the constitution to a certain degree.
Does Section 215 Violate Privacy Rights?
After conducting an examination of section 215 of the PATRIOT Act, the research showed that it was often utilised in order to seize records and validate the actions of the law enforcement agencies involved in various criminal investigation cases. The means of justification that was utilised was through a shift in terminology wherein in order to bypass the normal procedure of due process during an investigation, the law enforcement agency conducting the investigation simply labelled the suspects as “potential domestic terrorist threats” or “subversive elements against U.S. interests”. Normally, such a process involved a court approved order to seize the actual records of the business itself or to utilize a variety of physical or electronic methods of surveillance in order to monitor the suspected foreign agents or foreign criminal enterprises. While FISA (Foreign Intelligence Surveillance Act) limited the process of information seizure and gathering to businesses such as hotels, car and truck rental agencies, storage and rental enterprises and motels (as well as other similar enterprises deemed appropriate), section 215 of the PATRIOT Act significantly expanded the scope and power of the law enforcement agencies. Not only that, the expansive powers associated within section 215 also authorised the FBI and other law enforcement agencies to obtain information associated with the term “records”. What this meant was that any tangible elements related to “records” could be seized by local law enforcement. This information could include, but is not limited to, phone records, paper documents, recorded conversations, emails, books, and other similar pieces of recorded information. Why this presents itself as a significant violation of privacy rights can be seen in the present day shift in what can be deemed as personal information. Due to achievements in modern day technology, a vast majority of communication today is often conducted via email, text, internet chatting, etc. Basically, most of our means of communication is done online and the various conversations we have with people constitutes our personal information in the sense that it is a private series of conversations that we have with other individuals that we would normally want to keep private. This is due to an assortment of information that we would normally share with these people that we trust thus. It is due to this current situation that a large percentage of our personal and private information is now in digital format and is connected to both the internet/telephone service provider that we utilize as well as our online presence. Due to provisions enacted through section 215, all law enforcement officials would need to do to get a court mandate is indicate that the records or materials being sought are in relation to an investigation of a person or organisation related to possible terrorist or subversive foreign intelligence threat against the U.S. As a result of the new provision, the judge in question has little in the way of sufficient discretion when reviewing the application and merely checks to see if the application meets the requirements outline by section 215 when it comes to investigations involving possible domestic terrorist threats. If the application meets all the necessary requirements, the judge must issue an order fulfilling the request of the law enforcement agency. The problem with section 215 in this particular case is that it takes away the requirement that an investigation by a law enforcement agency must prove that a person is part of a subversive foreign power or organisation prior to gaining approval for record seizure. This has led to abuse in the case of the NSA as seen in their PRISM programme that unilaterally collected data on millions of Americans without them ever knowing about it and did so under the guise of national security. The fact that there is little in the way of sufficient judicial oversight when it comes to section 215 means that this act has little in the way of preventive measures when it comes to possible abuse.
Implications of Analysis
Based on what has been revealed in this analysis of section 213 and 215, it is immediately apparent that changes need to be implemented when it comes to the PATRIOT ACT. This encompasses the scale and scope of the act as well as the means by which investigations into potential terrorist threats should be conducted. A broader recommendation regarding the changes that should be implemented will be discussed in the next section.
Conclusion
The main crux of the debate involving the PATRIOT Act and privacy rights is the lack of due process which creates the potential for abuse by law enforcement agencies. One clear example of this can be seen in the files that were released by former NSA contractor Edward Snowden. It was revealed that under the PATRIOT Act, a vast programme of domestic surveillance was being conducted by the government; the NSA (National Security Agency) was shown to have recorded and stored the phone calls and emails of millions of Americans despite the fact that it is unlikely that a majority of them would be involved in activities that could classified as domestic or international terrorism.
Based on an evaluation of the various research elements that were examined in this study, it has been determined that section 215 is a far larger breach of personal privacy as compared to section 213. Though it should be noted that both section are in need of considerable revision given how they can be utilised as a sufficient method of precedence for future laws involving investigation and privacy rights. First and foremost,
while the FISA (Foreign Intelligence Surveillance Act) limited the process of information seizure and gathering to businesses such as hotels, car and truck rental agencies, storage and rental enterprises and motels (as well as other similar enterprises deemed appropriate), section 215 of the PATRIOT Act significantly expanded the scope and power of the law enforcement agencies wherein the limitations that were put in place by FISA in relation to the type of entities whose records could be seized were eliminated. This in effect allowed the FBI and other law enforcement entities within the U.S. to seize business records and information from entities such as internet service providers, phone companies, as well as an assortment of other enterprises. It was determined by this study that it was this precise expansion of towers that is at the heart of the problem involving section 215. While it may be true that possible foreign agents that are part of terrorist organisations may utilize other services for communication and collaboration, the fact remains that allowing the government to unilaterally acquire information based on suspicion alone could undermine the current justice system. What must be understood is that “due process” is a necessary system utilised to ensure that despite a person being categorized as a suspect in a crime; their rights should still be protected.
Without such protections in place, it would be easy to simply jail a person for a crime that they did not commit without sufficient evidence to prove that this person is guilty. On the other hand, it is true that section 15 does act as an effective tool in the arsenal of law enforcement agencies when it comes to investigating criminal cases. The expansive powers associated within section 215 also authorise the FBI and other law enforcement agencies to obtain information associated with the term “records”. What this meant was that any tangible elements related to “records” could be seized by local law enforcement (Lucas 2012). This information could include, but is not limited to, phone records, paper documents, recorded conversations, emails, books, and other similar pieces of recorded information.
From a criminal investigation standpoint, these powers could enable members of law enforcement agencies to read the emails of suspected terrorists and prevent them from committing all sorts of potentially dangerous acts against citizens of the United States. However, the fact remains that allowing section 215 to remain in its current iteration is far from ideal since as seen in the NSA’s PRISM programme, it entails far too much potential abuse on the part of various law enforcement agencies. It is based on this that this paper recommends that section 215 have added constraints in relation to more judicial oversight wherein more criteria for proper investigation should be implemented. On the top of the list of possible changes is a limitation on the number of suspects that can be investigated at any one time utilizing record seizure. While many law enforcement departments around the U.S. may investigate more than a dozen possible cases of domestic terrorism at any one time, it is unlikely that they would need to investigate nearly a million people at once which was seen in the case of the PRISM programme wherein it examined the data of millions of Americans over several years. A set limit to roughly a dozen people per case submitted by each law enforcement agency with special exceptions being given for the investigation of large organisations should be put in place. Such a strategy would be a welcome alternative to what is currently present since it ensures that the FBI and other law enforcement agencies are focusing their operations on potential domestic terrorist threats and examining the private online records of nearly every single American within the country.
Going back to the issue of preventing terrorist activities, the US PATRIOT Act aims at providing the necessary intelligence for helping to curb domestic and international terrorist activities that are planned and executed on the US soil. The inherent issue though is that while the act is successful in all the aforementioned preventive actions to ensure national security against domestic and international terrorist threats, it does so through the use of operations that lacks sufficient judicial oversight. The end result, as evidenced by NSA’s PRISM programme, is the potential widespread violation of the privacy rights of ordinary American citizens. Once proper oversight is implemented in the case of the PATRIOT Act, then it becomes a far more viable means of protecting the American people instead of its current iteration wherein it seemingly allows law enforcement officials to label everyone as a potential terrorist suspect so that they can be investigated.
For instance, prior to the introduction of section 213, standard procedures involving the an examination of a suspect’s property usually involved the use of a court mandated warrant at which point law enforcement personnel visited the premises of the suspect and conducted a search of the property for evidence in relation to the case that is being investigated (Campaign Calls for Patriot Act Reforms 2013). Under section 213, a search can be conducted without the knowledge of the suspect wherein law enforcement personnel can “sneak” onto the property or investigate that individual’s records without immediately notifying them. While such a provision under the PATRIOT Act may seem to be in direct violation of the 4th Amendment rights of American citizens, what must be understood is that unlike section 215, section 213 has a considerable amount of judicial oversight wherein suspicion is not a sufficient enough motive in order to for a search and examination procedure to be approved. In this particular case, supportive evidence is necessary in order to for law enforcement agencies to obtain a warrant. This is why it is the observation of this study that section 213 is not a violation of privacy rights since it is used as a means of criminal investigation with proper judicial approval. Law enforcement officials cannot simply break into a person’s home under this provision without sufficient oversight. It is the concept of proper oversight that is at the heart of the privacy debate involving the PATRIOT act since without external oversight this is when the abuse of privacy occurs. What must be understood is that while people have a right to privacy they are still subject to local laws involving criminal investigation and, as such, should understand that in order to protect the rest of the community it is at times necessary to have one’s privacy undermined in order for an individual’s innocence or guilt to be proven.
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. It is based on this that this study recommends that the various revisions involving section 215 be implemented as a well as few limitations be added onto section 213 as well. Other potential changes entail an overview of the current means by which law enforcement agencies change terminologies to change the manner in which investigations are categorized under potential terrorist activities under investigation when in reality they are ordinary crimes. Such a practice should be stopped in favour of implementing proper due process when it comes to investigating cases.
Opportunities for further Examination
Other possible opportunities for further study along the same lines as this paper could possibly delve into a comparison of the various methods of national security utilised by other countries in comparison to the U.S. and how and examination of the variances could create a potentially better method of preventing domestic terrorism without necessarily compromising the privacy rights of local citizens. Such a comparison was not conducted in this study since the primary concern was investigating the PATRIOT Act and privacy rights within the U.S. alone, however, future researchers could possibly delve into such a topic since it is quite relevant given the various acts of global terrorism that continue to occur around the world and the need to protect a country’s citizens.
Reflection
Based on everything that I have gone over in this paper, I have come to the conclusion that when it comes to implementing any form of privacy protection, it is necessary to employ methods of government transparency in operations. For example,
the Freedom of Information Act that puts into effect the lawful release of full/partial information that has been controlled by the United States government after a period of time and mandatory disclosure procedures detail that such information can be released to the general public. While this particular law enables a certain degree of transparency in the government operations (which is a good thing) at times the information released may contain information which could potentially result in adverse consequences for particular citizens (as seen in the case of the release of previous census data results). As such, while I agree with this law in principle it should contain provisions that prevent particular types of private data from being released in order to ensure that no citizen’s private information can be utilised for self-serving purposes by malicious individuals or corporations. Despite its pitfalls, the fact that there is transparency in operations helps to prevent general suspicion regarding the activities being conducted which is one of the reasons behind the problems surrounding the PATRIOT Act. I have come to believe that transparency is a necessary aspect of government operations since without it, this creates a considerable level of suspicion on the part of local citizens and can also result in the government acting in a manner that would validate such suspicions (ex: the NSA PRISM Programme). I believe that one of the reasons why PATRIOT Act got out of hand and became a means of monitoring the private conversations of Americans was due to the lack of government transparency involving particular aspects of its operations in relation to how it impacts the American people.
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