home > post 9/11 issues Principles, Power, and the USA PATRIOT Act by Dani Eyer (Note: This article first appeared in the September 2003 issue of the Catalyst magazine) The USA PATRIOT Act (“Uniting and Strengthening America — Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) has dramatically expanded the government’s authority to spy on ordinary Americans. Even before it was enacted, the FBI could conduct surveillance of those suspected of engaging in criminal activity or of working for foreign governments or terrorist organizations. The new surveillance powers make it easier for the FBI to spy on people suspected of neither, while reducing checks and balances on those powers including the ability to challenge government searches in court. Patriot Act’s first legal challenge In August the American Civil Liberties Union (ACLU) filed the first direct constitutional challenge to the Patriot Act, specifically section 215, for its violation of privacy rights of all Americans, the threat to their First Amendment rights to say what they want, associate with the groups they choose, and freely practice their religion. Under section 215 the FBI has virtually unlimited power to obtain your medical and psychiatric records, demand membership lists from organizations and even, according to Attorney General Ashcroft, seize your DNA. Section 215 allows the FBI to obtain your records and personal belongings without having to show probable cause or any reason to believe that you have done anything wrong. It does not need to show that you are a terrorist or foreign spy. With the Patriot Act, the FBI can now force doctors, libraries, bookstores, universities, Internet service providers and other businesses to turn over records on their clients or customers. Further, a person or organization forced to turn over records is prohibited from disclosing the search to anyone. As a result of this gag order, the subjects of surveillance never even find out that the government has examined their personal records. More secret searches For centuries, common law has required that the government can’t go into your dwelling without telling you, and must give you notice before it executes a search. The Patriot Act, in Section 213, allows the government to conduct searches without notifying the subjects, at least until long after the search has been executed. This means the government can enter a house, apartment or office with a search warrant when occupants are away, search through their property, download their hard drive, take photographs, and even seize their diary. These new “sneak and peek” powers apply to ordinary criminal investigations, not just terrorism. A 1978 law called the Foreign Intelligence Surveillance Act (FISA) created an exception to the Fourth Amendment’s requirement for probable cause when the purpose of a wiretap or search was to gather foreign intelligence. The rationale was that since the search was not conducted for the purpose of gathering evidence to put someone on trial, the standards could be loosened. The Patriot Act expands this exception to cover wiretaps and searches that collect evidence for regular domestic criminal cases. These weak standards now apply to Internet information, tracking an individual’s website use, URLs, and even tracking ISP networking. Grassroots voices of concern Concern about the USA Patriot Act has continued to climb to new highs. More than 142 communities across the country and three state legislatures have passed resolutions opposing provisions of the Patriot Act. Even librarians have begun taking steps to warn patrons about and protect them the from the Act’s overbroad powers. This summer a congressional bill that would bar federal law enforcement from implementing the Section 213 “sneak and peek” delayed-notification search warrants passed with overwhelming bipartisan support. It still has to clear the Senate and the President before it becomes law. In August, Senator Russ Feingold introduced legislation that would limit the Patriot Act’s Section 215, the FBI’s ability to gather library, bookstore and other records, stating, “we can protect both our nation and our privacy and civil liberties.” Even Utah Congressman Chris Cannon supports a bill introduced by another Republican that would require federal agencies to include a statement reflecting how any proposed new rules would impact the privacy rights of Americans. Principles, not power The rapid passage of the USA PATRIOT Act was the result of action based upon fear, without proper and thoughtful examination. History has shown that erosions of civil liberties based upon fear are later revealed to have been a grave mistake. People from across the political spectrum now repeat one refrain: If we give up our freedoms in the name of national security, we will have lost the war on terrorism. We American citizens should be and can be safe and free. We will prevail if we understand that liberty should never be taken for granted. As the US Supreme Court has stated: This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes it constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system. Once Americans realize what they have traded away in the past two years for the illusion of increased security, they will regret the bargain their leaders have made, and they will demand change based on our core American principles, not based upon fear.

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