How the USA PATRIOT Act will permit governmental infringement upon the privacy of Americans in the name of "intelligence" investigations.

Publication: University of Pennsylvania Law Review

Publication Date: 01-MAY-02

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COPYRIGHT 2002 University of Pennsylvania, Law School

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. (1)

In the wake of September 11, 2001, as Americans watched time and again the news footage of airplanes crashing into the World Trade Center in New York City, many resolved to support the Bush administration in its efforts to find the terrorists responsible for those horrific actions and bring them to justice--at whatever cost necessary. Mourning the loss of so many lives, and faced with warnings of additional terrorist attacks, Americans called for legislative action in the hope that new laws would grant the government sufficient surveillance capabilities to catch terrorists hiding on U.S. soil, thereby leading to greater security at home. "An ABC-Washington Post poll taken the day after September 11th found that two out of three Americans are willing to surrender civil liberties to stop terrorism." (2)

Private citizens were not alone in their desire for legislative reform. Immediately after September 11th, the Bush administration advocated radical amendments to existing law to allow intelligence and law enforcement agencies access to the essential tools (3) required to uncover terrorist activity in the United States. As the House of Representatives and Senate began to debate the proposals promoted by Attorney General John Ashcroft, concerns emerged regarding the extent to which these new provisions would infringe upon cherished civil liberties. As the House's Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("PATRIOT Act") (4) and the Senate's comparable Uniting and Strengthening America Act of 2001 ("USA Act") (5) began to take shape under the Bush administration's "`relentless' pressure to move quickly, `without deliberation or debate,'" (6) it became apparent that several provisions of the bills would permit the government to intrude upon the private lives of law-abiding Americans--without assurance of any greater security against terrorism. The American Civil Liberties Union expressed its view in a letter to the Senate, commenting that:

While it contains provisions that we support, the American Civil Liberties Union believes that the USA PATRIOT Act gives the Attorney General and federal law enforcement unnecessary and permanent new powers to violate civil liberties that go far beyond the stated goal of fighting international terrorism. These new and unchecked powers could be used against American citizens who are not under criminal investigation, immigrants who are here within our borders legally, and also against those whose First Amendment activities are deemed to be threats to national security by the Attorney General. (7)

Despite such concerns, on October 26, 2001, President George W. Bush signed the House and Senate's compromise antiterrorism bill, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act"). (8)

One multifaceted aspect of the USA PATRIOT Act that has received a great deal of criticism from both civil libertarians and the press alike is the broad expansion of the government's right to engage in electronic surveillance. This Comment addresses how three discrete provisions of the Act allow the government far greater power to: (1) monitor the private telephone conversations of individuals suspected of purely domestic criminal activity, without demonstrating probable cause that a crime has been or is soon to be committed, under the guise of an "intelligence" investigation; (2) overhear private conversations of nonsuspects permitted by the extension of roving wiretap authority to foreign intelligence investigations without proper privacy protections; and (3) discourage political dissent by including the activities of unpopular political organizations within the newly created definition of "domestic terrorism."

By enacting these three provisions, the USA PATRIOT Act disrupts the delicate inherent in our established surveillance laws, (9) which prior to September 11th provided the government with sufficient leeway to conduct both criminal and intelligence surveillance while protecting Americans' Fourth and First Amendment rights to be free from "unreasonable searches and seizures" (10) and to exercise freedom of expression. (11) Through a review of Fourth and First Amendment rights, an analysis of pre-USA PATRIOT Act surveillance law, and a discussion of how three provisions of the USA PATRIOT Act greatly increase the government's surveillance abilities, this Comment illustrates how the USA PATRIOT Act allows the government to compromise cherished freedoms the American people (12) both enjoy and celebrate as part of our national identity.

I. REVIEW OF FOURTH AND FIRST AMENDMENT RIGHTS

A. The Fourth Amendment

The strongest protection Americans have against governmental intrusions into their privacy interests is the Fourth Amendment, which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (13) Early interpretations of the Amendment tended toward a literal and narrow reading of the wording, such that it protected only physical property interests. An example of this property-based application is Boyd v. United States, in which the Court found that compelled production of a person's private papers constituted an unreasonable search and seizure within the meaning of the Fourth Amendment. (14) To reach this conclusion, the Court heavily relied upon the English case of Entick v. Carrington, (15) finding Lord Camden's pronouncement of the judgment to be "sufficiently explanatory of what was meant by unreasonable searches and seizures." (16) In Entick, the English court stated that:

Papers are the owner's goods and chattels; they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. (17)

The Boyd Court reasoned that "[i]t is not the breaking of [a man's] doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property ... which underlies and constitutes the essence of Lord Camden's judgment." (18)

Property notions also controlled cases concerning electronic surveillance such as Olmstead v. United States, in which the Court ruled that the wiretap in question did not violate the appellant's Fourth Amendment rights. (19) The Court reasoned that there could be no search when there was no physical invasion of the appellant's personal space, and likewise there could be no seizure considering that words are not tangible things capable of being seized. (20) Yet Justice Brandeis's dissent signaled a shift in attitude away from such unyielding property-based applications of the Fourth Amendment when he stated:

The makers of our Constitution ... sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone.... To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. (21)

In describing the right conferred by the Fourth Amendment as the right "to be let alone," Justice Brandeis was referring to the influential article he had written with Samuel D. Warren, entitled The Right to Privacy, which argued for common law recognition of a fundamental right to privacy. (22)

Thirty-nine years after Olmstead, the Court again faced an electronic surveillance controversy in Katz v. United States, in which FBI agents--acting without a warrant--set up a wiretap by attaching a listening device to the outside of a public telephone booth from which the appellant was engaging in illegal bookmaking activities. (23) Influenced by notions of privacy, the Court held that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a `search and seizure' within the meaning of the Fourth Amendment." (24) In a concurring opinion, Justice Harlan created a two-part test to determine when the Fourth Amendment, which the Court declared "protects people, not places," (25) actually confers such protection. Justice Harlan explained that "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable.'" (26) This opinion, which was later accepted by a majority of the Court, (27) demonstrates a clear shift in the Court's interpretation of the protections afforded by the Fourth Amendment, away from property-based conceptions and toward privacy-based notions. Privacy as protected by the Fourth Amendment denotes a right to be free from unwarranted governmental surveillance, and such privacy interests should be kept in mind when considering the implications of the USA PATRIOT Act.

B. The First Amendment

Governmental surveillance also may infringe upon the First Amendment rights of Americans by chilling free expression, particularly in the context of political protest. The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." (28) This explicit constitutional protection of expressive activity is upheld with particular vigor when individuals exercise this freedom as a means of political protest. While many forms of expressive activities are protected by the First Amendment, the courts have allowed little or no protection for those who seek to incite violence, (29) or who use violence or otherwise illegal acts as a means of protest. (30) As the Supreme Court declared in NAACP v. Claiborne Hardware Co., "`violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of "advocacy."'" (31) Since violent or illegal acts are not protected under the right to free expression, the First Amendment will not act as a barrier against government surveillance of such activities. Yet, where individuals exercise free expression in a manner protected by the First Amendment, government surveillance may not be targeted specifically at such behavior. (32) Interests protected by the First and Fourth Amendments converge in this context, as intrusive surveillance activities discourage the exercise of protected expression. (33) In United States v. United States District Court, the Court stated that "[h]istory abundantly documents the tendency of Government--however benevolent and benign its motives--to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs." (34) Thus, although the framers' motives in developing and passing the USA PATRIOT Act were almost certainly benevolent--in that they were seeking to safeguard national security and protect Americans from further terrorist attacks--it is important to consider carefully how the Act will permit government surveillance of targets exercising protected free expression.

II. PRE-USA PATRIOT ACT SURVEILLANCE LAW: TITLE III AND FISA

Prior to the enactment of the USA PATRIOT Act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III") (35) and the Foreign Intelligence Surveillance Act of 1978 (FISA) (36) provided United States law enforcement and intelligence agencies extensive surveillance authority in a wide range of circumstances. And yet, proponents of the USA PATRIOT Act pushed for the swift passage of this controversial piece of legislation--claiming that expanded governmental surveillance authority would be an essential weapon in combating the immediate threat of terrorism (37)--without first inquiring into how the Act would disrupt the delicate balance struck with Title III and FISA. Only with a thorough understanding of the precursors to, purposes of, authority granted by, and protections afforded under Title III and FISA can one begin to understand the far-reaching and unwarranted surveillance authority bestowed upon law enforcement and intelligence agencies by the USA PATRIOT Act.

A. Title III of the Omnibus Crime Control and Safe Streets Act of 1968

Title III was the legislative response to the Supreme Court's landmark decision in Katz v. United States, where the Court, influenced by notions of privacy, established that governmental interception of an individual's telephone conversation, conducted without the target's consent, constitutes a search and seizure within the meaning of the Fourth Amendment. (38) Although the Katz decision definitively barred warrantless governmental surveillance in the context of criminal investigations, in a highly controversial footnote the Court left the door open for warrantless surveillance in circumstances concerning national. security. (39) In a concurring opinion, Justice White indicated that the Supreme Court should not require the President to obtain a warrant for national security matters where the President had determined the reasonableness of the surveillance. (40) Troubled by Justice White's statement, Justice Douglas, joined by Justice Brennan, responded:

Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be.... The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases.... Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers ... I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate. (41)

Although the Court would not address the executive branch's authority in approving intelligence surveillance for another five years, this early dialogue presented a preview to the forthcoming debate concerning this greatly contested matter.

Responding to the majority holding of Katz, Congress enacted Title III as a means to implement a uniform procedure for conducting constitutionally acceptable electronic surveillance. Title III authorizes law enforcement agents to engage in surveillance activities for criminal investigative purposes upon a judge's finding of probable cause that a serious crime (42) has been or is about to be committed, and an award of a warrant (43)--in compliance with the Fourth Amendment's directive. Generally, all criminal surveillance must be authorized by a judge of competent jurisdiction. (44) In an emergency situation, (45) however, where there is immediate danger of death or serious injury to any person, conspiratorial activities threatening the national security interest, or conspiratorial activities characteristic of organized crime, (46) law enforcement may engage in warrantless wiretapping, so long as an application for a warrant is made within forty-eight hours of the commencement of interception. (47)

The congressional findings accompanying Title III clearly illustrate Congress's dual intent in creating this extensive piece of legislation: "to promote more effective control of crime while protecting the privacy of individual thought and expression." (48) The findings indicate that:

(c) Organized criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice. (d) To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.... (49)

The probable cause requirement of Title III is integral to the protection of individual privacy from the invasive nature of wiretaps and is a particularly important concept to appreciate in comparing Title III and FISA since FISA does not require that this protective element be demonstrated to the court before surveillance authority is granted. Meeting the probable cause requirement of Title III is a substantial threshold that the applicant for wiretap authority must reach to the satisfaction of the reviewing judge before such intrusive authority will be permitted. (50) To protect against unreasonable searches and seizures as provided by the Fourth Amendment, Title III explicitly requires that the judge ascertain the existence of probable cause "that an individual is committing, has committed, or is about to commit a particular offense" (51) before granting wiretap authority. In United States District Court, the Supreme Court elaborated on the importance of the probable cause requirement in stating that it is the "very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private ... conversation." (52)

Although Title III is broad in scope, it is clear that the statute was not meant to infringe upon the Executive's long-standing surveillance authority over matters concerning foreign intelligence. As the D.C. Circuit noted in Chagnon v. Bell, "every President since Franklin D. Roosevelt has claimed the `inherent' constitutional power to authorize warrantless surveillance in cases vitally affecting the national security. Furthermore, all presidents to hold office since Katz was decided have advocated a broad exception to the warrant requirement for surveillance targeted at agents of foreign governments." (53) The original version of Title III unequivocally stated:

Nothing contained in this chapter ... shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such...

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