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The Controversy
The USA PATRIOT Act has generated a great deal of
controversy since its enactment. Opponents of the Act
have been quite vocal in asserting that it was passed
opportunistically after the September 11 terrorist
attacks, believing there to have been little debate.
They view the Act as one that was hurried through the
Senate with little change before it was passed.
(Senators Patrick Leahy and Russell Feingold proposed
amendments to modify the final revision.) The sheer
magnitude of the Act itself was noted by liberal
activist Michael Moore in his controversial film
Fahrenheit 9/11. In one of the scenes of the movie, he
records Congressman Jim McDermott alleging that no
Senator read the bill and John Conyers, Jr. as saying
"We don't really read most of the bills. Do you know
what that would entail if we read every bill that we
passed?" Congressman Conyers then answers his own
rhetorical question, asserting that if they did it would
"slow down the legislative process". As a dramatic
device, Moore then hired an ice-cream van and drove
around Washington, D.C. with a loud speaker, reading out
the Act to puzzled passers-by, which included a few
Senators. However, Moore was not the only commentator to
notice that not many people had read the Act. Dahlia
Lithwick and Julia Turne for Slate asked "How bad is
Patriot, anyway?". They decided that it was "Hard to
tell", and that "The ACLU, in a new fact sheet
challenging the DOJ Web site, wants you to believe that
the act threatens our most basic civil liberties.
Ashcroft and his roadies call the changes in law "modest
and incremental." Since almost nobody has read the
legislation, much of what we think we know about it
comes third-hand and spun. Both advocates and opponents
are guilty of fear-mongering and distortion in some
instances."Some television shows as NCIS, Law & Order:
Special Victims Unit and Las Vegas have been keen to use
the USA PATRIOT Act as a plot device, often for purposes
it was not intended.
EPIC have criticized the law as unconstitutional,
especially when "the private communications of
law-abiding American citizens might be intercepted
incidentally", while the EFF hold that the lower
standard applied to wiretaps "gives the FBI a 'blank
check' to violate the communications privacy of
countless innocent Americans". Others do not find the
roving wiretap legislation to be as concerning.
Professor David D. Cole of the Georgetown University Law
Center, a critic of many of the provisions of the Act,
found that though they come at a cost to privacy are a
sensible measure while Paul Rosenzweig, a Senior Legal
Research Fellow in the Center for Legal and Judicial
Studies at the Heritage Foundation, argues that roving
wiretaps are just a response to rapidly changing
communication technology that is not necessarily fixed
to a specific location or device.
The Act also allows access to voicemail through a search
warrant rather than through a title III wiretap order.
James Dempsey, of the CDT, believes that it
unnecessarily overlooks the importance of notice under
the Fourth Amendment and under a Title III wiretap, and
the EFF criticizes the provision's lack of notice.
However, the EFF's criticism is more extensive — they
believe that the amendment "is in possible violation of
the Fourth Amendment to the U.S. Constitution" because
previously if the FBI listened to voicemail illegally,
it couldn't use the messages in evidence against the
defendant.[202] Others disagree with these assessments.
Professor Orin Kerr, of the George Washington University
school of law, believes that the ECPA "adopted a rather
strange rule to regulate voicemail stored with service
providers" because "under ECPA, if the government knew
that there was one copy of an unopened private message
in a person's bedroom and another copy on their remotely
stored voicemail, it was illegal for the FBI to simply
obtain the voicemail; the law actually compelled the
police to invade the home and rifle through peoples'
bedrooms so as not to disturb the more private
voicemail." In Professor Kerr's opinion, this made
little sense and the amendment that was made by the USA
PATRIOT Act was reasonable and sensible.
The USA PATRIOT Act's expansion of court jurisdiction to
allow the nationwide service of search warrants proved
controversial for the EFF. They believe that agencies
will be able to "'shop' for judges that have
demonstrated a strong bias toward law enforcement with
regard to search warrants, using only those judges least
likely to say no—even if the warrant doesn't satisfy the
strict requirements of the Fourth Amendment to the
Constitution", and that it reduces the likelihood that
smaller ISPs or phone companies will try to protect the
privacy of their clients by challenging the warrant in
court — their reasoning is that "a small San Francisco
ISP served with such a warrant is unlikely to have the
resources to appear before the New York court that
issued it." They believe that this is bad because only
the communications provider will be able to challenge
the warrant as only they will know about it—many
warrants are issued ex parte, which means that the
target of the order is not present when the order is
issued.
For a time, the USA PATRIOT Act allowed for agents to
undertake "sneak and peek" searches. Critics such as
EPIC and the ACLU strongly criticized the law for
violating the Fourth Amendment, with the ACLU going so
far as to release an advertisement condemning it and
calling for it to be repealed. However supporters of the
amendment, such as Heather Mac Donald, a fellow at the
Manhattan Institute and contributing editor to the New
York City Journal, expressed the belief that it was
necessary because the temporary delay in notification of
a search order stops terrorists from tipping off
counterparts who are being investigated. In 2004, FBI
agents used this provision to search and secretly
examine the home of Brandon Mayfield, who was wrongfully
jailed for two weeks on suspicion of involvement in the
Madrid train bombings. While the U.S. Government did
publicly apologize to Mayfield and his family,[ Mayfield
took it further through the courts. On September 26,
2007, judge Ann Aiken found the law was, in fact,
unconstitutional as the search was an unreasonable
imposition on Mayfield and thus violated the Fourth
Amendment.
Laws
governing the material support of terrorism proved
contentious. It was criticized by the EFF for
infringement of freedom of association. The EFF argues
that had this law been enacted during Apartheid, U.S.
citizens would not have been able to support the African
National Congress (ANC) as the EFF believe the ANC would
have been classed as a terrorist organization. They also
used the example of a humanitarian social worker being
unable to train Hamas members how to care for civilian
children orphaned in the conflict between Israelis and
Palestinians, a lawyer being unable to teach IRA members
about international law, and peace workers being unable
to offer training in effective peace negotiations or how
to petition the United Nations regarding human rights
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Another group, the Humanitarian Law
Project, also objected to the provision
prohibiting "expert advise and assistance" to
terrorists and filed a suit against the U.S.
government to have it declared unconstitutional.
They succeeded, and a Federal Court found that
the law was vague enough to cause a reasonable
person to guess whether they were breaking the
law or not. Thus they found it violated the
First Amendment rights of U.S. citizens, and
struck it down.
Perhaps one of the biggest controversies
involved the use of NSLs by the FBI. Because
they allow the FBI to search telephone, email,
and financial records without a court order they
were criticized by many parties. In November
2005, BusinessWeek reported that the FBI had
issued tens of thousands of NSLs and had
obtained one million financial, credit,
employment, and in some cases, health records
from the customers of targeted Las Vegas
businesses. Selected businesses included
casinos, storage warehouses and car rental
agencies. An anonymous Justice official claimed
that such requests were permitted under section
505 of the USA PATRIOT Act and despite the
volume of requests insisted "We are not inclined
to ask courts to endorse fishing expeditions".
Before this was revealed, however, the ACLU
challenged the constitutionality of NSLs in
court. In April 2004, they filed suit against
the government on behalf of an unknown Internet
Service Provider who had been issued an NSL, for
reasons unknown. In ACLU v. DoJ, the ACLU argued
that the NSL violated the First and Fourth
Amendments of the U.S. Constitution because the
USA PATRIOT Act failed to spell out any legal
process whereby a telephone or Internet company
could try to oppose an NSL subpoena in court.
The court agreed, and found that because the
recipient of the subpoena could not challenge it
in court it was unconstitutional. Congress later
tried to remedy this in a reauthorization Act,
but because they did not remove the
non-disclosure provision a Federal court again
found NSLs to be unconstitutional because they
prevented courts from engaging in meaningful
judicial review.
Another provision of the USA PATRIOT Act brought
a great deal of consternation amongst
librarians. Section 215 allows the FBI to apply
for an order to produce materials that assist in
an investigation undertaken to protect against
international terrorism or clandestine
intelligence activities. Amongst the "tangible
things" that could be targeted, it includes
"books, records, papers, documents, and other
items". Supporters of the provision point out
that these records are held by third-parties,
and therefore are exempt from a citizen's
reasonable expectations of privacy and also
maintain that the FBI has not abused the
provision. As proof, then Attorney General John
Ashcroft released information in 2003 that
showed that section 215 orders had never been
used. However, despite protestations to the
contrary, the American Library Association
strongly objected to the provision, believing
that library records are fundamentally different
to ordinary business records, and that the
provision would have a chilling effect on free
speech. The association became so concerned that
they formed a resolution condemning the USA
PATRIOT Act, and which urged members to defend
free speech and protect patrons' privacy. They
urged librarians to seek legal advice before
complying with a search order and advised their
members to only keeping records for as long as
was legally needed. Consequently, reports
started filtering in that librarians were
shredding records to avoid having to comply with
such orders.
Another controversial aspect of the USA PATRIOT
Act is the immigration provisions that allow for
the indefinite detention of any alien whom the
Attorney General believes may cause a terrorist
act. Before the USA PATRIOT Act was passed,
Anita Ramasastry, an associate professor of law
and a director of the Shidler Center for Law,
Commerce, & Technology at the University of
Washington School of Law in Seattle, Washington,
accused the Act of depriving basic rights for
immigrants to America, including legal permanent
residents. She warned that "Indefinite detention
upon secret evidence — which the USA PATRIOT Act
allows — sounds more like Taliban justice than
ours. Our claim that we are attempting to build
an international coalition against terrorism
will be severely undermined if we pass
legislation allowing even citizens of our allies
to be incarcerated without basic U.S. guarantees
of fairness and justice. "Many other parties
have also been strongly critical of the
provision. Russell Feingold, in a Senate floor
statement, claimed that the provision "falls
short of meeting even basic constitutional
standards of due process and fairness [as it]
continues to allow the Attorney General to
detain persons based on mere suspicion". The
University of California passed a resolution
condemning (amongst other things) the indefinite
detention provisions of the Act, while the ACLU
has accused the Act of giving the Attorney
General "unprecedented new power to determine
the fate of immigrants... Worse, if the
foreigner does not have a country that will
accept them, they can be detained indefinitely
without trial."
Another controversial aspect of the USA PATRIOT
Act is its effect on the privacy of British
Columbian citizens. British Columbia’s privacy
commissioner raises concerns that the USA
PATRIOT Act will allow the United States
government to access Canadians' private
information, such as personal medical records,
that are outsourced to American companies.
Although the government of British Columbia has
taken measures to prevent United States
authorities from obtaining information, the
widespread powers of the USA PATRIOT Act could
overcome legislation that is passed in Canada.
B.C. Privacy Commissioner David Loukidelis
stated in a report on the consequences of the
USA PATRIOT Act, “once information is sent
across borders, it’s difficult, if not
impossible, to control”.
In an effort to maintain their privacy, British
Columbia placed amendments on the Freedom of
Information and Protection of Privacy Act (FOIPPA),
which was enacted as law on October 21, 2004.
These amendments aim to place more firm
limitations on “storing, accessing, and
disclosing of B.C. public sector data by service
providers. "These laws only pertain to public
sector data and do not cover trans-border or
private sector data in Canada. The public sector
establishments include an estimated 2,000
“government ministries, hospitals, boards of
health, universities and colleges, school
boards, municipal governments and certain Crown
corporations and agencies.”
Legal action has been taken in Nova Scotia to
protect the province from the USA PATRIOT Act’s
data collecting methods. On November 15, 2007
the government of Nova Scotia passed a
legislation aimed to protect Nova Scotians’
personal information from being brought forward
by the USA PATRIOT Act. The act was entitled
“The new Personal Information International
Disclosure Protection Act”. The goal of the act
is to establish requirements to protect personal
information from being revealed, as well as
punishments for failing to do so. Justice
Minister Murray Scott stated, "This legislation
will help ensure that Nova Scotians' personal
information will be protected. The act outlines
the responsibilities of public bodies,
municipalities and service providers and the
consequences if these responsibilities are not
fulfilled."
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