In a somewhat sneaky attempt to fast-track H.R. 5606, otherwise known as the Anti-Terrorism Information Sharing Is Strength Act, Congress used a strategy called “suspension of the rules” to try and get it passed. However, it required two-thirds majority, and failed by about 55 votes. It would have chipped away at Fourth Amendment rights and privacy in general, under the guise of “keeping America safe.”
The Anti-Terrorism ISIS Act (politicians are great at naming things) is an amendment to the PATRIOT Act, and would have altered the language within it to allow the government increased surveillance access. Many people are against increased government surveillance, but when it’s painted by politicians as the only way to keep us safe from the threat of terrorists, Congress and the constituents whom they represent are all to eager to enact these policies.
What is the patriot act?
The PATRIOT Act, spelled in all capitals as it’s an acronym for Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, was enacted six weeks after the 9/11 terrorist attacks. Its intent was to find terrorist threats and stop them before they were to be carried out. In order to do that, the government gave the FBI and NSA complete power to survey phone, email and credit records of millions of American civilians. But what exactly does this mean?
These government agencies are able to obtain this information by issuing a National Security Letter(NSL) without a warrant, and without a judge’s approval. Even if this information is not useful, and concerns innocent Americans, it’s not required that the information be throw out. Anything about you can just be kept and filed away. There is also a “gag” order placed on the person receiving this letter, meaning they are not allowed to tell anyone they got one. Issuance of an NSL was first explicitly allowed in the Electronic Communications Privacy Act of 1981, but the PATRIOT Act greatly relaxed any restrictions on NSLs, and it was reported that the FBI issued more than 200,000 of these within the first five years after enactment.
has the patriot act been challenged in the supreme court?
Many times, and the nuances of each case serves as further indication that the PATRIOT Act doesn’t do much more than breach American’s right to privacy. Even when the Court rules in favor of the defense, many observers can see the problems with the Act, how it restricts privacy rights for Americans and does not solve the problem of terrorism or terrorist threats.
One 2010 case which did just that was Holder v. Humanitarian Law Project, which found that providing material to groups deemed terrorist organizations, even if those materials are peaceful in nature, is unconstitutional. The Humanitarian Law Project was giving information to two separate groups deemed terrorists on how to resolve conflicts and get what they wanted peacefully. However, it was deemed that even doing something like this would “legitimize” the group, and therefore was forbidden by the PATRIOT Act. Jimmy Carter himself criticized the decision, noting that the “material support law” does much more harm than good when it comes to preventing terrorism.
Just last year, the Second Circuit Court of Appeals ruled that the PATRIOT Act does not allow for the NSA to bulk collect phone records of citizens. The government had been using Section 215 of the Act, which states that the FBI, “may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities,” as their excuse for the collection of metadata. The case, ACLU v. Clapper, says that the program is not authorized by Section 215, which is the most controversial of the Act, and was essentially allowed to expire not to long after the decision in this case. Many may remember Sen. Rand Paul’s filibuster regarding this.
Is the patriot act a violation of the fourth amendment?
The short answer here is yes. The Fourth Amendment, although written more than 200 years before computer usage became widespread, still protects electronic communications and documents. This specific provision that was voted against is viewed by many, particularly Rep. Justin Amash (R-MI), as an, “assault on the Constitution & due process.” Sharing of information had already been allowed, but only in cases of, “terrorist acts or money laundering activities.” The proposed change of this language to read, “activities that may involve terrorist acts, money laundering activities, or a specified unlawful activity,” although slight, would have given the government unconstitutional control over the seizing of records of millions of Americans.
*Featured Image by Matt Shirk, via Wikimedia Commons