The Patriot Act's Impact on Civil Liberties

CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh

On September 11, 2001 the United States was viciously attacked by terrorists. In response, Congress enacted the USA Patriot Act (USAPA), which was signed into law by President Bush on October 26, 2001. Since its inception, few have truly understood this controversial body of law which is over 342 pages long and made many considerable changes to over 15 different statutes. One of the most significant changes is that Congress and the president gave substantial new powers to both domestic law enforcement and international intelligence agencies. Additionally, some have argued that the USAPA eliminated the checks and balances that previously gave courts the opportunity to ensure that these powers were not abused. This article will focus on just several of the many significant changes which, many have argued, have had the greatest impact on civil liberties.

Prior to the enactment of the Patriot Act, law enforcement were obligated to provide a person subject to a search warrant with contemporaneous notice of the search. Prior law authorized delayed notification of a search only under a very small number of circumstances, such as secret electronic surveillance. Section 213 of the Patriot Act eliminated the notice prerequisite and created, what many call, the "secret search." Under that provision, if the court "finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse effect," then no notice is required. The amendment permits seizure of any tangible property or communications where the court finds "reasonable necessity" for this seizure. This considerable change in the law applies to all government searches and is not limited to investigations of terrorist activities. Seizure of material is lawful if the items are ones that simply "constitute evidence of a criminal offense in violation of the laws of the United States." Many critics argue that the increase of this significant authority to all searches could result in regular secret entries by law enforcement agents.

Before the Patriot Act, law enforcement could use a subpoena to acquire from an internet provider items such as local and long distance telephone toll billing records; subscriber number or identity; length of subscriber's service; and the type of services the subscriber utilized. Section 210 expands the type of information that a provider must divulge to law enforcement to include, among other things, records of session times and duration; any temporarily assigned network address; and any means or source of payment. Many have difficulty with the increased authority to use subpoenas, instead of court orders, for a broader and more revealing class of information. Furthermore, many fear that this increased power is not being limited to investigations of suspected terrorist activity.

Title III and the Stored Communications Access Act were amended with the creation of Section 204. That part of the USAPA enables law enforcement to seize communications utilizing a search warrant rather than through more rigorous wiretap orders. Additionally, section 204 also brings voice mail under the authority of Section 209, which authorizes nationwide search warrants. Answering machine messages remain outside the scope of either statute.

Sections 216 and 220 of the Patriot Act enlarge the jurisdictional authority of a court to authorize the installation of a surveillance device anywhere in the U.S. Before the Act, law enforcement could only execute a court order pertaining to a wiretap, for example, only within the territory of the issuing court's jurisdiction. As a result of rapidly growing changes to technology, service providers find it necessary to go to court, more than ever before, to seek clarification from issuing courts regarding the privacy rights of their subscribers. Many critics maintain that these sections make it considerably more difficult for service providers, who are located far from the issuing court, to launch objections to procedural and/or legal defects.

The significant changes discussed in this article are just a few of the literally hundreds made by the enactment of the Patriot Act. The controversy will most certainly persist as many believe that as a result of the USAPA, the civil liberties of ordinary Americans have taken a tremendous blow.