USA Patriot Act Essay
The USA Patriot Act
After the World Trade Center and U.S. pentagon were attacked, Congress enacted the Patriot Act on October 26th, 2001. Its central purpose was to give FBI agents more jurisdiction in intercepting and investigating possible terrorist threats or attacks. It is these changes in surveillance capabilities in particular that have created tension with civil libertarians.
Authorization of Roving Surveillance
Law enforcement agencies now have the ability to engage in roving surveillance, which means conducting surveillance without a showing of probable cause. Prior to the enactment of the Patriot Act, the government could only use wiretaps (monitoring phone lines) on condition that they present sufficient proof to a court, that the target to be monitored is using the line to be tapped. Now, under section 206 of the Patriot Act, the FBI or CIA no longer needs judiciary consent or proof that the target to be monitored is using the line. As stated by the EFF (Electronic Frontier Foundation), an organization devoted to protecting rights in the digital world, "The government need not make any showing to a court that the particular information or communication to be acquired is relevant to a criminal investigation."[6] EFF also establishes that the "FBI and CIA can now go from phone to phone, computer to computer without demonstrating that each is even being used by a suspect or target of an order." [6] Roving Surveillance is highly criticized by civil activitists who believe this form of surveillance violates Amendment IV, of the Bill of Rights, which established constitutional protection for "the right of the people to be secure in their persons, houses, papers, and effects, but upon probable cause, supported by oath or affirmation." [19] Engaging in roving surveillance requires no such need for a court showing or "probable cause", and this is why the amendment, authorizing such procedures, has experienced a great deal of public backlash.
After the World Trade Center and U.S. pentagon were attacked, Congress enacted the Patriot Act on October 26th, 2001. Its central purpose was to give FBI agents more jurisdiction in intercepting and investigating possible terrorist threats or attacks. It is these changes in surveillance capabilities in particular that have created tension with civil libertarians.
Authorization of Roving Surveillance
Law enforcement agencies now have the ability to engage in roving surveillance, which means conducting surveillance without a showing of probable cause. Prior to the enactment of the Patriot Act, the government could only use wiretaps (monitoring phone lines) on condition that they present sufficient proof to a court, that the target to be monitored is using the line to be tapped. Now, under section 206 of the Patriot Act, the FBI or CIA no longer needs judiciary consent or proof that the target to be monitored is using the line. As stated by the EFF (Electronic Frontier Foundation), an organization devoted to protecting rights in the digital world, "The government need not make any showing to a court that the particular information or communication to be acquired is relevant to a criminal investigation."[6] EFF also establishes that the "FBI and CIA can now go from phone to phone, computer to computer without demonstrating that each is even being used by a suspect or target of an order." [6] Roving Surveillance is highly criticized by civil activitists who believe this form of surveillance violates Amendment IV, of the Bill of Rights, which established constitutional protection for "the right of the people to be secure in their persons, houses, papers, and effects, but upon probable cause, supported by oath or affirmation." [19] Engaging in roving surveillance requires no such need for a court showing or "probable cause", and this is why the amendment, authorizing such procedures, has experienced a great deal of public backlash.
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Pen Registers & Trap and Trace Devices now apply to both wire and electronic communications
Another legislative change brought about by the Patriot Act allows pen registers and trap/trace devices to be used in both wire and electronic (e.g. internet) communication. Pen Registers are devices that capture the phone numbers dialed on outgoing telephone calls, whereas trap and trace devices capture numbers which identify incoming calls. These devices do not monitor the content of a conversation. Prior to the enactment of the Patriot Act, Pen/Trap statutes applied only to wire communication (e.g phonelines) [1]. More specifically, these devices merely monitored numbers dialed into a telephone. The new statutory definition of a pen register reads: "a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted." [1] Expanding the scope under which these surveillance tools can be used has raised concern among privacy advocates who fear that "routing, addressing and signalling" information could potentially reveal much more than mere digits dialed on a telephone. This information could identify the names of file transactions, email recipients and URL links, all of which contain more information in their headings than a set of unique phone numbers. For instance, the URL http://www.eff.org/Privacy/Surveillance/Terrorism/ is much more content revealing than 432 - 6578.
The standard under which Pen/trap orders can be obtained is lower
The standard under which pen registers and trap/trace devices can be obtained is now much lower. Prior to the enactment of the Patriot Act, only federal agencies were allowed to request Pen/Trap orders within the jurisdiction of a particular court. Under Title II, of Section 216, the Patriot Act changed legislation so that any law enforcement officer, whether a federal agent or local deputy, could obtain a pen/trap order. Moreover, this order is applicable nation-wide whereas in the past an investigator might have to travel from jurisdiction to jurisdiction, obtaining unique pen/trap orders, in hope of following a hacker's trail [2]. Sen Patrick Leahy, Chairmen of the Senate Judiciary Committee, who is an opponent of the lowered standard, dissented with critics of the legislation stating, "I have heard the suggestion that anybody can go in, and anytime some local sheriff wants to, he can tap a computer. That is unmitigated bull." [2] Leahy's comments however fail to acknowledge that if government is going to grant greater power to invade privacy to lesser-ranked authorities, there must be proper judicial review and oversight.
Patriot Act II
The Bush administration is trying to rally support for additional amendments to the original Patriot Act, which is being dubbed "Patriot Act II." Congress seeks to make three central changes. Patriot Act II would make it easier for the government to obtain documents and force testimony without a court order, it would expand the use of the death penalty, and make it more difficult to be released on bail [11]. A growing number of civil rights activists oppose these changes, arguing that they have nothing to do with fighting terrorism. In an article posted September 22nd, 2003, published by the New York Times, the editor states, "The most troubling part of the new plan is the call for expanding government access to private data, allowing federal agents to issue subpoenas for private medical, financial and other records, without a court order." [11] Without proper judiciary oversight, the potential for government misconduct in handling private data, is at greater risk.
Another legislative change brought about by the Patriot Act allows pen registers and trap/trace devices to be used in both wire and electronic (e.g. internet) communication. Pen Registers are devices that capture the phone numbers dialed on outgoing telephone calls, whereas trap and trace devices capture numbers which identify incoming calls. These devices do not monitor the content of a conversation. Prior to the enactment of the Patriot Act, Pen/Trap statutes applied only to wire communication (e.g phonelines) [1]. More specifically, these devices merely monitored numbers dialed into a telephone. The new statutory definition of a pen register reads: "a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted." [1] Expanding the scope under which these surveillance tools can be used has raised concern among privacy advocates who fear that "routing, addressing and signalling" information could potentially reveal much more than mere digits dialed on a telephone. This information could identify the names of file transactions, email recipients and URL links, all of which contain more information in their headings than a set of unique phone numbers. For instance, the URL http://www.eff.org/Privacy/Surveillance/Terrorism/ is much more content revealing than 432 - 6578.
The standard under which Pen/trap orders can be obtained is lower
The standard under which pen registers and trap/trace devices can be obtained is now much lower. Prior to the enactment of the Patriot Act, only federal agencies were allowed to request Pen/Trap orders within the jurisdiction of a particular court. Under Title II, of Section 216, the Patriot Act changed legislation so that any law enforcement officer, whether a federal agent or local deputy, could obtain a pen/trap order. Moreover, this order is applicable nation-wide whereas in the past an investigator might have to travel from jurisdiction to jurisdiction, obtaining unique pen/trap orders, in hope of following a hacker's trail [2]. Sen Patrick Leahy, Chairmen of the Senate Judiciary Committee, who is an opponent of the lowered standard, dissented with critics of the legislation stating, "I have heard the suggestion that anybody can go in, and anytime some local sheriff wants to, he can tap a computer. That is unmitigated bull." [2] Leahy's comments however fail to acknowledge that if government is going to grant greater power to invade privacy to lesser-ranked authorities, there must be proper judicial review and oversight.
Patriot Act II
The Bush administration is trying to rally support for additional amendments to the original Patriot Act, which is being dubbed "Patriot Act II." Congress seeks to make three central changes. Patriot Act II would make it easier for the government to obtain documents and force testimony without a court order, it would expand the use of the death penalty, and make it more difficult to be released on bail [11]. A growing number of civil rights activists oppose these changes, arguing that they have nothing to do with fighting terrorism. In an article posted September 22nd, 2003, published by the New York Times, the editor states, "The most troubling part of the new plan is the call for expanding government access to private data, allowing federal agents to issue subpoenas for private medical, financial and other records, without a court order." [11] Without proper judiciary oversight, the potential for government misconduct in handling private data, is at greater risk.
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