What Right to Privacy Is That?

"What Right To Privacy Is That?"

The discretionary authority given to law enforcement officials regarding surveillance have always walked a fine line between effective performance of duty and blatant violation of the right to privacy. The added authority granted under the USA PATRIOT Act of 2001 has taken any hope of a reasonable right to privacy. In their haste to protect from outside terrorists, government officials forgot to provide the checks and balances necessary to protect our civil liberties.

The use of electronic surveillance equipment has long been a subject of debate. As early as 1928, in Olmstead v. U.S. , American citizens have argued that electronic surveillance is a violation of the Fourth Amendment right to privacy. This was the first of many cases filed by outraged American citizens. The result, prior to the USA PATRIOT Act, was the gradual development of legislation and policies which provided guidelines and specifications for the use of electronic surveillance equipment and the information gathered by it. On the surface, this appeared to provide at least reasonable safeguards against the undue infringement of the civil liberties of innocent Americans.

Law enforcement officials were required to obtain a court order by application to a judge or magistrate for the use of electronic surveillance. The required elements of the application were specific in nature. Officials were required to specify the identity and location of the target of the surveillance and the objectives, or precise types of communications, sought. In addition, officials had to provide sufficient recent evidence to show probable cause to believe that the target of the surveillance either had recently committed a crime, was currently involved in committing a crime, or was about to commit a crime. Further, officials had to submit a statement of necessity for the electronic surveillance, based on the inadequacy of alternative investigative techniques.

Many of these legislative actions proved to be inadequate, however, especially in the area of foreign intelligence gathering.

"Prior to the enactment of FISA in 1978, the intelligence community had virtually unchecked authority...FISA created a special court to ensure that 'the purpose' of domestic intelligence gathering was to obtain foreign intelligence information. The FISA court structure and sole purpose standard attempted to balance the need to collect foreign intelligence information without the constraints of the Fourth Amendment with increased protections for Americans exercising their First Amendment rights"

- John Podesta, (USA Patriot Act - The Good, the Bad, and the Sunset (2002)

The sole purpose standard, however, proved more difficult to adhere to than first thought. Investigators were inadvertently uncovering criminal activity that did not relate to terrorism and, therefore, did not fit into the sole purpose standard. Section 218 of the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT) , addresses this issue by loosening the standard from "the purpose" to "a significant purpose". The Act does not define the term "significant." Further, due to revisions to FISA made in 1994 and 1998 to permit covert physical entries and pen/trap orders, and "...since probable cause is not required [to get a court order] under FISA, it also raises the possibility that U.S. citizens will have their homes searched and communications monitored without probable cause."

Section 206 of the Act further expands wiretap abilities by permitting roving wiretaps intended to intercept all communications by the target without specifically naming the location. This allows law enforcement officials to monitor communications on public telephones, computers and other locations if there is a suspicion that the target may use those facilities. This, of course, means that officials will be monitoring many innocent people not even suspected of any wrongdoing.

The probable cause requirement is the most basic of the civil liberties granted the American people by the Fourth Amendment. The removal of that requirement, combined with the removal of the requirement to give a specific location for the wiretap, more or less erases the Fourth Amendment. The implications here are frightening.

My stepfather is from Pakistan. He entered the United States on a visitor's visa and ended up staying because he married my mother. Although he has been a citizen for several years, he is afraid to call his family in Pakistan - afraid that government officials will think that he is a terrorist. He tells stories of friends who have called their families and been subjected to hours of questioning by law enforcement officials. Are the stories true? I have no idea. Is my stepfather a terrorist? No. Are any of his friends? I doubt it. Perhaps they are just men and women who came here to escape a horrible lifestyle. The fact that they decided to find a better life does not mean that they wish to alienate themselves from their families completely. They still want to call their parents, their brothers, their sisters.

What I do know is that, if the stories are true, given the powers granted by the USA PATRIOT Act, my stepfather's telephones and computers are probably being monitored because these "suspicious" friends of his "might" use them while they are visiting him. By extension, perhaps officials are monitoring the phones