Debate on government access to records

The September 11, 2001, terrorist attacks against the United States gave rise to a national debate over the right of the government to inspect personal and business records as a means of countering future terrorist attacks. These records include library circulation records and records kept by Internet service providers of computer usage by individual subscribers. Such inspections were authorized to occur without a court order by the 2001 Patriot Act, which was passed in the weeks following the 9/11 attacks.

The administration of President George W. Bush insisted that the government needed expanded surveillance rights in order to guard against future terrorist attacks. Civil libertarians argued that only in the most extreme cases did officials need to circumvent court warrants, and that existing law provided for immediate action that later could be validated by a judge. The argument continued during the congressional debate over the renewal of the Patriot Act at the end of 2005 and into 2006. Privacy rights advocates, librarians and civil libertarians continue to object to government examining their personal records without a court order.

Understanding the Discussion

Fourth Amendment: The Fourth Amendment to the Constitution states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Internet Service Providers (ISPs): Telecommunications companies that provide consumers with access to the Internet.

National Security Agency (NSA): A federal government organization under the control of the Executive Branch that specializes in high-tech surveillance of international telephone calls and e-mail.

USA Patriot Act: A law passed shortly after the terrorist attacks of September 11, 2001 that gave the government enhanced police powers at a time when there was widespread fear of another terrorist attack.

Probable Cause: A legal standard that defines the level of proof required before a person may be arrested, held for trial, or a search warrant issued. This standard is also used throughout the USA Patriot Act to define when warrantless searches or wiretaps may be authorized without approval of a judge. Generally, probable cause is established when it is more likely than not that a crime was committed and the person sought committed it. In terms of searches and seizures, the standard is met if it is more likely than not that a crime was committed, and the search (or wiretap) will lead to the discovery of admissible (at a trial) evidence.

Search Warrant: An order by a judge that a law enforcement officer is entitled to search a place, person or thing, and seize evidence relevant to a criminal case. It must be specific in scope, both in terms of location, and in terms of items to be seized (for example, if the search warrant is to locate a 5-foot high locked safe, officers may not search through drawers and under furniture, or open envelopes).

History

Shortly after the Constitution was adopted in 1789, a set of ten amendments called the Bill of Rights was added, guaranteeing the rights of individuals, by placing limits on the actions of government. The First Amendment, for example, stated that the government could not make any laws interfering with the freedom of speech. The Fourth Amendment declared that the government could not make "unreasonable" searches and seizures. It specifically states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The phrase "to be secure" has been interpreted to mean that individuals have an expectation of privacy in private means of communications. As technology has advanced, courts have matched pace, with telephone, and now electronic means of communication covered under the umbrella of the Fourth Amendment's prohibition of unreasonable searches and seizures.

It is important to note that records and other physical objects do not implicate the Fifth Amendment privilege against compelled self-incrimination, as those protections apply only to spoken testimony, despite the fact that documents can be just as incriminating.

After the September 11, 2001, terrorist attacks on New York City and Washington, DC, however, many people became afraid that terrorists might strike inside the United States again. These fears were exacerbated when police learned that most of the hijackers had lived in the US for months and had even taken lessons to learn how to fly planes like the ones that were hijacked. In the modern age, it has become much easier for terrorists to use technology to plan and execute attacks in secret, hiding their communications from those seeking to detect and prevent them.

In this climate, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, also known as the USA PATRIOT Act, or simply the Patriot Act. It was signed into law by President George W. Bush on October 21, 2001, having passed the Senate with just one "no" vote, and the House of Representatives with 66 "no" votes. The administration, which strongly supported the bill, insisted that the enhanced police powers it authorized were necessary to fight the war on terror in the United States and abroad. But because legislators recognized that the bill was being rushed into law, several provisions of the act were set to expire after four years --in 2005. In spring 2006, after a prolonged and sometimes bitter debate, most provisions of the Patriot Act were renewed.

The most controversial provisions of the Patriot Act involve the government's right to examine personal and business records without a warrant. Among business records, books borrowed from public libraries are included. Another provision gives the FBI the right to inspect customer records of Internet providers, essentially monitoring which websites people visit. To critics, these provisions seem to circumvent the Fourth Amendment and give the government greatly enhanced powers of surveillance, alarming civil libertarians and other groups.

These provisions of the Patriot Act were defended by President Bush and then-Attorney General John Ashcroft, who said the country needed protection against another attack by the terrorist organization al Qaeda. Proponents of the Patriot Act feared that terrorists were already inside the United States, using the Internet to communicate and to conduct research related to other attacks. They argued that innocent Americans would have nothing to fear if the FBI or the National Security Agency happened to look at their phone records, email, financial transactions, or library records. However, most anti-terrorism operations are conducted in secret and reports related to who is investigated are not made public. The Bush administration consistently held that the Patriot Act was instrumental in preventing terrorist activity, but critics claim there is no way to verify this.

In 2004, a federal district court judge ruled that Section 505 of the Patriot Act was unconstitutional. Section 505 allowed the government to demand, without a search warrant, records of customer activity from Internet providers, and barred ISPs from revealing that such searches had taken place. The judge ruled that this provision of the Patriot Act violated the First Amendment (freedom of speech, religion, press, etc.) and the Fourth Amendment (no unreasonable searches and seizures).

Throughout the early 2000s, other provisions of the Patriot Act generated opposition. Eight states (Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana, and Vermont) passed resolutions denouncing the act as a violation of civil liberties. Several hundred cities and towns passed similar resolutions.

At the end of 2005, with provisions of the Patriot Act about to expire, Congress could not reach agreement on renewing the entire act. Instead, the act was renewed temporarily until a final law passed in March 2006. This act limited renewal of two provisions--the government's right to conduct so-called "roving" surveillance (tapping several phones as a suspect moved from one to the next, for example) and the right to seize business records--to four years.

Government Access to Records Today

In August 2006, the American Civil Liberties Union (ACLU) reported what it thought to be the first occurrence of the FBI demanding library records as part of an investigation. Prior to this report, officials of the Bush administration had said the provision providing access to library records had never been used.

Public opinion polls by Gallup showed a steady decline in public support for expanded government search powers. In the meantime, there were new reports that the National Security Agency had used its technology to monitor phone calls made to locations overseas by numerous Americans. The law specifically bans the NSA from operating inside the United States, but the calls were allegedly tracked at locations outside the US.

In January 2007, the New York Times reported that the Pentagon had been exercising its power to monitor the financial information of hundreds of American citizens suspected of activities related to terrorism. This was widely regarded as an expansion of intelligence gathering, since it involved the military rather than civilian police agencies like the FBI.

President Barack Obama extended several provisions of the Patriot Act for a period of one year in February 2010. However, a bipartisan group of congresspersons voted against extending several other Patriot Act provisions when the matter came up for a vote again in February 2011. In 2014, a number of members of Congress, from both parties, stated that they planned to vote against an extension of Section 215 of the Patriot Act, which governed the collection of phone records, when it came up for renewal in the summer of 2015. Rep. Jim Sensenbrenner (R-Wis.), who introduced the Patriot Act, was among those opposed to the renewal of Section 215.

Section 215 expired in June 2015 after Senate failed to vote in favor of a renewal. Shortly afterward, Congress passed the USA Freedom Act, which put stricter limitations on the NSA’s phone data collection. As a result, not only did the NSA no longer have the authority to conduct dragnet phone surveillance, but it was also required to purge phone records and other metadata previously collected under Section 215, following a six-month transitional period. The act also increased transparency surrounding government data requests. However, the act still allows the government to collect call records of anyone within two degrees of contact with a suspected terrorist, and some privacy advocates, such as the Electronic Frontier Foundation, still feel that the act does not go far enough to protect people’s rights.

These essays and any opinions, information or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Publishing.

Bibliography

Books

Cole, David and James X. Dempsey. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. New York: New P, 2006. Print.

Periodicals

Farrell, Michael. "Obama Signs Patriot Act Extension Without Reforms." Christian Science Monitor. Christian Science Monitor, 1 Mar. 2010. Web. 9 Nov. 2015. http://www.csmonitor.com/USA/Politics/2010/0301/Obama-signs-Patriot-Act-extension-without-reforms.

Hattem, Julian. “Lawmakers to NSA: Reform It or We’ll Kill It.” Hill 5 Feb. 2014: 1+. Print.

Kelly, Erin. “Here’s What Happens Now that the Patriot Act Provisions Expired.” USA Today. Gannett, 1 June 2015. Web. 9 Nov. 2015. http://www.usatoday.com/story/news/nation/2015/05/31/patriot-act-expires-senate-stalemate/28260905/.

Klein, Alyson. "Role of Privacy Laws Scrutinized in Report on Va. Tech Tragedy." Education Week 27.3 (2007): 7. Print.

Kravets, David. "Obama Backs Extending Patriot Act Spy Provisions." Wired. Condé Nast, 15 Sept. 2009. Web. 9 Nov. 2015. http://www.wired.com/2009/09/obama-backs-expiring-patriot-act-spy-provisions/.

Martorella, Georgina. "Libraries in the Aftermath of 9/11." Reference Librarian 45.94 (2006): 109–37. Print.

Paye, Jean-Claude. “Merging the Law of War with Criminal Law.” Monthly Review: An Independent Socialist Magazine 66.3 (2014): 128–135. Print.

Perez, Evan. "Tea Party Unlikely to Derail Patriot Act Renewal." Wall Street Journal. Dow Jones, 4 Feb. 2011. Web. 9 Nov. 2015. http://online.wsj.com/article/SB10001424052748704376104576121960881420264.html.

Pilger, John. "You Are All Suspects Now. What Are You Going To Do About It?." New Statesman 141.5104 (2012): 20. Print.

Scheppler, Bill. "The USA Patriot Act: Antiterror Legislation in Response to 9/11." Library Media Connection 25.1 (2006): 88. Print.

Suderman, Peter. “Spy Games.” Reason 45.9 (2014): 14. Print.

Walker, Lauren. “NSA to Destroy Data Collected from Mass Phone Surveillance.” Newsweek. Newsweek, 27 July 2015. Web. 9 Nov. 2015. http://www.newsweek.com/nsa-destroy-data-collected-mass-phone-surveillance-357500.

Websites “USA Freedom Act.” United States House of Representatives Judiciary Committee. Judiciary Committee, 2 June 2015. Web. 9 Nov. 2015. http://judiciary.house.gov/index.cfm/usa-freedom-act.