The USA PATRIOT Act and telecommunications: privacy under attack.

I. INTRODUCTION

The USA PATRIOT Act of 2001, (1) signed into law on October 26, 2001, became a formidable weapon in the United States' war against terrorism. Enacted quickly in response to the September 11th terrorist attacks, Congress strengthened the abilities of U.S. law enforcement and intelligence communities to combat terrorism on a variety of fronts. The PATRIOT Act ushered in sweeping changes to several key areas of law. Specifically, it expanded law enforcement and foreign intelligence authority in the areas of electronic intelligence gathering, including Internet surveillance. (2)

By enhancing the government's ability to conduct surveillance, however, this far-reaching legislation severely diminishes critical privacy protections to an "unprecedented degree." (3) The PATRIOT Act authorizes law enforcement to use increased surveillance techniques, "including the ability to conduct covert searches, obtain sensitive personal records, track e-mail and Internet usage, and evade the Fourth Amendment's probable cause requirement." (4)

Furthermore, federal agents can "exercise these powers with minimal judicial and Congressional oversight." (5) The Act's possible effect on providers and users of telecommunications, including wireless phones, email, and the Internet, is incredibly broad. (6) Moreover, law enforcement agents expect to increase their interception and monitoring of electronic communications. (7) In fact, the likelihood of a wiretapping, for example, is expected to rise by a factor of ten. (8) Already, many telecommunications carriers have turned over customer data to law enforcement agents. (9) Likewise, concerns about misuse of the law have started to surface. (10)

This Article summarizes and evaluates those portions of the PATRIOT Act that have the most profound impact on the privacy interests of telecommunications users and carriers, including Internet Service Providers ("ISP"s). Part I provides a brief background of the evolution of U.S. national security efforts, telecommunications and foreign intelligence law, and the role of the executive branch, leading up to the passage of the PATRIOT Act. Part II then outlines and critiques the various provisions of the PATRIOT Act, discussing the critical Fourth Amendment implications and related privacy concerns. Provisions related to searches and subpoenas are first examined, followed by aspects pertaining to wiretapping and voluntary disclosure. Part III concludes with suggestions for legislative and judicial oversight and revision.

II. BACKGROUND

National security laws and foreign intelligence gathering are certainly not new, as they date back to the birth of this nation. (11) In fact, war-time threats to national security have led to such laws as the Espionage Act of 1917, (12) which granted the government greater surveillance authority. Since the days of George Washington and Thomas Jefferson, U.S. presidents have also sought broad executive control over foreign intelligence matters and national security. President Woodrow Wilson, for example, authorized the surveillance and wiretapping of German delegations to the United States. (13)