Government response was swift in the aftermath of the 9/11 terrorist attacks. Shortly after the attacks, the President signed the USA Patriot Act into law in October, 2001. The overarching purpose of the USA Patriot Act was to provide new tools and resources for law enforcement agencies and personnel to better detect and prevent terrorism (The USA PATRIOT Act: Preserving Life and Liberty). The Patriot Act made dramatic changes to existing laws relating to government surveillance (Savage, 2009). It equipped various law enforcement agencies with the legal authority and ability to be more proactive in detecting and preventing terrorist attacks before they occur (The USA PATRIOT Act: Preserving Life and Liberty). One of the sweeping changes that the Patriot Act brought about was the expansion of the Federal Bureau of Investigation’s authority to seize documents and records and to monitor phone calls related to a counterterrorism investigation (Savage, 2009).
Arguably, the most controversial program under the USA Patriot Act is the wiretapping program. It expands the instances in which the Foreign Intelligence Surveillance Act (FISA) issues foreign intelligence surveillance orders (Copeland, 2004, p. 19). The Patriot Act augments the definitions under FISA to permit searches of not only pen registers and trap and trace devices, but also to encompass anything “dialing, routing, addressing, or signaling information” (Copeland, 2004, p. 19). In addition, the Patriot Act extended the length of time foreign intelligence surveillance orders are valid (Copeland, 2004, p. 19).
Civil rights groups have brought a number of challenges to various provisions of the USA Patriot Act. Section 215 of the Patriot Act had previously permitted the government to obtain a court order requiring third party telephone companies to hand over records or other “tangible thing” if this information was deemed to be “relevant” to an investigation (USA Patriot Act, 2001, § 215). Under this program, the National Security Agency (NSA) was collecting bulk meta data from all phone calls in the United States. This program was challenged for exceeding the scope of the statutory language. In ACLU v. Clapper, the Court of Appeals for the Second Circuit held that collection of bulk meta data was not permitted under section 215 and struck down this portion of the program (ACLU v. Clapper, 2014).
There are two different approaches to analyzing the USA Patriot Act. Under the first approach, the Patriot Act gives law enforcement the legal instruments and devices needed to effectively combat terrorism. Counterterrorism efforts must detect terroristic threats before they occur. Thus, it is necessary to give law enforcement the ability to closely monitor and eavesdrop on suspected terrorists to gather important information. Although the Patriot Act does expand the government’s reach into personal privacy, it is a small price to pay for thwarting and preventing impending terrorists and terrorist attacks. The number one goal of counterterrorism intelligence gathering is to prevent an attack like 9/11 from ever happening again. Because terrorism poses unique challenges to law enforcement, logistically, prosecutorial, and geographically, the government needs a robust arsenal of tools to combat terrorism.
Under the second approach, the USA Patriot Act infringes on the personal liberties and privacy rights of ordinary Americans. The idea that the government monitors and collects bulk meta-data from all phone calls in the nation is troubling. The Patriot Act raises a number of potential Fourth Amendment questions. Some argue that the Patriot Act is a slippery slope to eroding constitutional rights. Even in a “War on terror,” these constitutional rights still need to be respected. There is such a thing as giving the government too much authority and power to pry into people’s lives and invade their privacy.
References
ACLU v. Clapper, 785 F.3d 787 (2nd Cir. 2015).
Copeland, R.A. (2004). War on terrorism or war on constitutional rights? Blurring the
lines of intelligence gathering in post-september 11 america. Texas tech Law
Review, 1-31.
Savage, C. (2009, Sep. 19). Battle looms over the patriot act. The New York Times.
Retrieved from http://www.nytimes.com/2009/09/20/us/politics/20patriot.html?_r=0
The USA PATRIOT Act: Preserving Life and Liberty. (2001). Department of Justice.
Retrieved from
https://www.justice.gov/archive/ll/what_is_the_patriot_act.pdf
USA Patriot Act, 2001, § 215.
