The US Patriot Act and Privacy Rights

Introduction

Background of the Study

The US government (under the Bush administration) passed the USA PATRIOT Act into law after the 9/11 attacks. The Act aimed to improve the quality of counterterrorism investigations by giving law enforcement officers immense powers to search and survey terrorism suspects (Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals 2008).

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However, this Act has caused widespread controversies because it potentially undermines the rights and freedoms of the American public (New York Bill of Rights Defence Campaign 2013). For example, the law eliminated many checks and balances that gave Americans the right to seek legal redress for the abuse of their civil rights (New York Bill of Rights Defence Campaign 2013). Therefore, the elimination of these safeguards has affected the basic fundamental rights and freedoms of the American people.

Warwick (2005) believes the controversy surrounding the PATRIOT Act stems from the government’s ignorance of the legislation’s complexity and its infringement on individual liberties. Particularly, he says that the controversies surrounding the information sharing clause, roving wiretaps clause, access to records clause, “sneak and peak” warrants, and material support clause (among others) stem from the infringements on privacy rights (Warwick 2005).

Although civil libertarians have cited several potential infringements of the PATRIOT Act on the civil liberties of Americans, this paper proposes research to understand how the PATRIOT Act infringes on the privacy rights of US citizens. Therefore, this paper does not intend to discuss the entire law, or all the controversies surrounding it; instead, it only aims to analyze specific sections of the law, which threaten the privacy rights of Americans.

Problem Statement

Many civil rights crusaders agree that the PATRIOT Act threatens the rights and freedoms of the American public (New York Bill of Rights Defence Campaign 2013). In fact, most of them support this view because the Fourth Amendment guarantees the right to privacy. However, Maillet (2013) suggests that the history of the Fourth Amendment makes it difficult to understand how the PATRIOT Act threatens the right to privacy.

For example, the Fourth Amendment does not openly protect people’s right to privacy; instead, it protects personal materials, such as houses, cars, books and other personal effects (Hudson 2009). Therefore, a literal interpretation of the Fourth Amendment makes it difficult to understand how the amendment protects private information, or conversations, as argued by civil libertarians (Smith 2010). From this background, Maillet (2013) says, possibly, one could argue that the Fourth Amendment does not protect Americans from electronic surveillance (as argued by civil libertarians).

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Despite the credibility (or lack of it) of the above arguments, civil rights groups have cited the “sneak-and-peak” and business records “gag-rule” provisions of the PATRIOT Act as the most contentious clauses of the law (Rubel 2006). The “sneak-and-peak” provision gives immense powers to law enforcement authorities to conduct searches on unsuspecting citizens, without informing them about such operations (New York Bill of Rights Defence Campaign 2013).

Similarly, the business records “gag-rule” gives law enforcement agencies the power to subpoena business records, without the consent of the business owners (Rubel 2006). Without delving further into the details of how the PATRIOT Act affects the right to privacy, the proposed study aims to investigate how the “sneak-and-peak” provision (outlined in section 213) and the business records “gag-rule” (outlined in section 215) affect the right to privacy.

Research Aim

To establish if the PATRIOT Act infringes on the right to privacy

Research Questions

  • Does section 213 of the PATRIOT act contravene the right to privacy?
  • Does section 215 of the PATRIOT act contravene the right to privacy?

Research Objectives

  • To establish if section 213 of the PATRIOT Act (“sneak-and-peak” provision) infringes on the right to privacy
  • To find out if section 215 of the PATRIOT Act (“gag-rule”) infringes on the right to privacy

Significance of Study

In today’s world of sophisticated terrorism threats, it is increasingly difficult for the state to draw the line between private and public rights (Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals 2008). The sophisticated nature of terrorism and its tendency to camouflage within ordinary social rights/activities draws attention to the need to find a balance between private and public rights (Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals 2008).

Understanding how the provisions of the PATRIOT Act align (or conflict) with existing freedoms and rights of the American people confers a lot of meaning to how America should perceive new laws that (seem to) threaten existing freedoms and liberties. Particularly, the proposed study should provide a framework for balancing private and public rights. Furthermore, since the PATRIOT Act is not only controversial for its potential infringement on privacy rights, the proposed study would help to guide future analyses that aim to understand how the PATRIOT Act potentially infringes on other rights, such as the right to free speech, right to due process, and freedom from being held without charge (among other unalienable rights).

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Literature Review

What are Civil Rights?

Cornell Law (2014) explains a civil right as an enforceable action that can cause injury if infringed on. Comparatively, Fine Law (2013) defines civil rights as the rights of people to receive fair treatment in different social and economic sectors, such as education, healthcare, and employment (among others). Through this definition, Cornell Law (2014) explains that civil rights may include the freedom of speech, freedom of association, and right to privacy (among other rights). Infringing on any of the above rights may result in discrimination.

What it means to Erode Civil Liberties – a Case of the Fourth Amendment and Privacy Concerns

America has a long history of privacy infringements. For example, Maillet (2013) says, among the first privacy measures from electronic surveillance emerged in 1967, in the Katz V United States case. This case emerged from an increase of cases where government prosecutors used information from electronic surveillance as evidence in courts of law (Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals 2008).

However, subsequent applications of this principle failed to live up to its spirit. For example, in a 1979 case, the court allowed prosecutors to use information obtained from electronic surveillance as evidence in court (Maillet 2013). Here, the court ruled that wiretapping did not amount to a search, as protected by the Fourth Amendment (Maillet 2013).

Despite the above developments, Maillet (2013) believes that the Fourth amendment significantly protects private belongings and information. However, he warns that the law does not protect private information that becomes public knowledge (Maillet 2013). In fact, in the 1970s, the Supreme Court ruled that the Fourth Amendment does not protect private information entrusted to other people (Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals 2008).

This ruling significantly affected criminal proceedings because it meant that financial information, medical records, and educational records did not receive protection from the Fourth amendment. The same principle applies to wiretaps because phone companies are the custodians of private conversations. Therefore, Maillet (2013) says the courts considered such information as unprotected by the Fourth amendment.

However, subsequent rulings by the Supreme Court clarified that private phone calls (only) become private when they disclose a person’s information when they were in their houses (Maillet 2013). Consequently, existing statutory laws have affirmed this provision by requiring phone companies (custodians of private information) to account for the privacy of their clients (Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals 2008).

Based on the above applications of the Fourth Amendment, Maillet (2013) says most of the privacy rights enjoyed by Americans do not stem from the amendment, but its interpretation. For example, the “right to private space” is a recent interpretation of the Fourth amendment. Similarly, the legal requirement for law enforcement officers to announce themselves when executing a warrant is a recent interpretation of the Fourth amendment.

What does the Right to Privacy Entail?

In America, the right to privacy is a legally enforceable legislative piece that allows citizens to bring a lawsuit against a person, or government agency, for interfering with their private affairs. Here, citizens may bring a lawsuit if they are wrongfully publicized (in an unfair light), used for personal gain, or had their private issues revealed to the public without their consent (Maillet 2013). Therefore, privacy invasion could provide enough legal ground for a person to claim damages in a court of law. In the context of this paper, the Fourth Amendment right is highly important in understanding the right to privacy (within the provisions of the PATRIOT Act) because it protects people from unwarranted search and seizure.

The Fourth Amendment right says,

“The right of the people to be secure in their persons, houses, papers, and other personal effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (Maillet 2013, p. 3).

From the above statement, many scholars argue that the Fourth amendment guarantees the privacy of Americans. Therefore, considering the provisions of the PATRIOT Act, possibly, someone can understand how the PATRIOT Act could threaten some of the privacy rights guaranteed by the constitution.

The Extent which the PATRIOT Act Erodes the Right to Privacy “Sneak-and-Peak” Provision (Section 213)

The Fourth amendment stipulates that American citizens have a right to enjoy their private properties without any unwarranted seizures, or searches, by law enforcement officers. The Fourth Amendment requires that the authorities should produce a search warrant (based upon probable cause) if they want to search personal properties (Rubel 2006). This provision also requires that the security agents should give notice to property holders if they want to conduct any search.

Probable cause is an important requirement for such searches. However, section 213 of the PATRIOT Act eliminates the need for law enforcement officers to show probable cause if they want to conduct a search (New York Bill of Rights Defence Campaign 2013). Instead, the authorities only have to prove that a search would serve a “significant purpose” in their investigations. Therefore, section 213 of the PATRIOT Act has widened the scope for searches and seizures. In fact, Rubel (2006) says the Act gives power to law enforcement officers to search private property, even when they are undertaking ordinary law enforcement procedures. The same provision gives power to law enforcers to monitor emails, internet records, and any website that a person visits.

Concerning electronic surveillance, investigative agencies have always complained about the legal restrictions of using information obtained from technology devices, such as cell phones and computers, during prosecutions (for terrorism suspects) (Abramson & Godoy 2014). However, the “sneak-and-peak” provision of the PATRIOT Act gives legal support for intelligence agencies to mount wiretaps on unsuspecting citizens.

Abramson & Godoy (2014) say the government has often argued that this provision is necessary for investigating technologically well-informed criminals. However, civil libertarians say this provision contravenes privacy rights for anybody that may innocently interact with a suspected terrorist. Based on this concern, proponents of privacy rights say the law should clearly outline the types of technological concerns that are open to tapping (Etzioni 2004). Furthermore, they say the law should provide a clear guideline of the characteristics of a “suspected” terrorist. Without such clarifications, civil rights groups say the existing provisions of section 213 threaten the privacy rights of American citizens (New York Bill of Rights Defence Campaign 2013).

“Gag Rule” Principle (Section 215)

Section 215 of the PATRIOT Act changes the procedures for authorities to conduct intelligence surveillance on American citizens. Particularly, this provision changes the procedures for the Federal Intelligence Surveillance Act (FISA), which outlines how law enforcement agencies should conduct intelligence surveillance (Rubel 2006). Ordinarily, FISA manages a special court that examines requests to conduct intelligence surveillance. The PATRIOT Act does not change the structure of this court, but it “coerces” the court to grant any subpoena that the Federal Bureau of Investigations (FBI) requests to conduct intelligence surveillance (Rubel 2006).

This provision gives the FBI a lot of power to conduct intelligence surveillance by seizing business records, or any financial information that they consider “sought for” in their counterterrorism investigations. Furthermore, the “gag-rule” provision does not require law enforcement officers to prove a terrorist link to conduct such searches. Therefore, they can conduct intelligence surveys on anyone (or business) they consider “suspicious” (Rubel 2006).

Methodology

Research Design

The proposed study would use the political discourse design. This research design focuses on political actors, institutions, and organizations as the main influences on legal and societal reform (Fairclough & Fairclough 2013). Indeed, the PATRIOT Act and its contentious clauses are products of political activities (started by political actors – politicians). Halperin & Heath (2012) say the main weakness of the political discourse analysis is its nihilistic relativism.

Furthermore, Halperin & Heath (2012) say that if there is no interpretation or validity exercise undertaken to understand how the outcomes of the research design apply to the practical world, the political discourse analysis becomes an academic exercise. Nonetheless, the greatest strength for adopting political discourse analysis is its ability to explain the research topic using complex power structures. Stated differently, this approach constructs the research process using political power as an omnipresent feature of modern societies (tackling modern political problems)

Data Collection

The proposed study would use secondary data as the main data collection technique. Secondary research uses information from other studies. Mainly, the proposed study would collect this information from government publications, legal journals/books, and civil rights websites. The main reason for using the secondary data collection method is its unobtrusive nature. Moreover, it is relatively easier, cheaper, and faster to collect secondary information (compared to primary data).

Research Strategy

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

Data Analysis

The data analysis process would involve four elaborate steps for systematic and professional political discourse analysis

  • Step 1: The first step of the data analysis process would establish the context of the source materials. Similarly, this step would ascertain the publication history of the sources used in the study. This process would help to understand how the chosen sources fit into the scope of the research topic.
  • Step 2: The second step involves coding the research materials. Here, the researcher would assign attributes to every unit of research material (such as paragraphs). Particularly, the researcher will categorize the research materials into themes and discourse strands. Each discourse strand should have a code for analysis.
  • Step 3: The third process would examine text structures. By analyzing the structural features of every text, sections of the research data that align with one discourse emerge. Here, investigations concerning how the identified discourses overlap with one another occur. Lastly, this stage involves an analysis of how every header of the research process guides the emerging arguments.
  • Step 4: The fourth step of the data analysis process involves examining discursive statements. This process involves collecting all discursive statements and establishing the truth behind every discourse. This step should identify the macro-features of the analysis and prepare them for the construction of the study’s findings.

Ethical Considerations

The UK Ethics Guide Book (2013) says, unlike primary research (particularly those that use human subjects) secondary researches often raise few (or no) ethical issues. However, two ethical issues will guide the proposed study

  • Intellectual property: Since this paper will mainly rely on information obtained from other researchers, the main ethical issue in the study will be the possible infringement of intellectual property rights. The proposed study avoids this unethical practice by giving credit to the authors of the materials used.
  • Anonymity: Most research studies use anonymous participants. However, the UK Ethics Guide Book (2013) warns that using such studies as secondary information may reveal a participant’s identity, thereby infringing on their privacy rights. The proposed study will safeguard the participants’ anonymity throughout the research process (if such a requirement previously existed).

Research Duration

Design and testing of the questionnaire One week
Conducting interviews Two weeks
Compiling questionnaires and data analysis Three weeks
Production of draft analysis One week
Reporting findings Two weeks
Presentation of final research product(s) One week

References

Abramson, L & Godoy, M 2014, The PATRIOT Act: Key Controversies. Web.

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

Cornell Law 2014, Civil Rights. Web.

Etzioni, 2004, How PATRIOTIC is the PATRIOT Act?: Freedom Versus Security in the Age of Terrorism, Routledge, New York.

Fairclough, I & Fairclough, N 2013, Political Discourse Analysis: A Method for Advanced Students, Routledge, London.

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

Halperin, S & Heath, O 2012, Political Research: Methods and Practical Skills, Oxford University Press, Oxford.

Hudson, D 2009, The Right to Privacy, Infobase Publishing, New York.

Smith, R 2010, Fourth Amendment: The Right to Privacy, ABDO, New York.

Maillet, J 2013, The Controversy over the USA PATRIOT Act. Web.

Mangal, S & Mangal, S 2013, Research Methodology in Behavioural Sciences, PHI Learning Pvt. Ltd., New Delhi.

New York Bill of Rights Defence Campaign 2013. Rights and Freedoms We Have Needlessly Lost In The Name Of National Security. Web.

Rubel, 2006, Privacy and the USA PATRIOT Act: Rights, the Value of Rights, and Autonomy, University of Wisconsin, Madison.

UK Ethics Guide Book 2013, Secondary Analysis. Web.

Warwick, S 2005, ‘Will the academy survive 9/11? Scholarship, security, and United States government policy’, Government Information Quarterly, vol. 22. no. 1, pp. 573-593.

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