Notably, the government is relying on the decision in Smith v. Maryland , which is itself based on a technological relic. It is an anachronistic view that raises the image of a switchboard operator as opposed to computerized systems that merely transmit and connect numbers.
This ignores that consumers have little choice. Moreover, even under the myth of the Smith case, there is no active sending of the signal for a cellphone user.
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It is part of this ubiquitous technology. If you have a cellphone, it emits this signal. The government wants the court to treat the use of a cellphone as a type of waiver of privacy. In , the Supreme Court resisted the encroachment of technological advances in United States v. Jones , when it ruled that police need a warrant to attach a GPS tracker on a car. Now, however, the government can negate that case by just using the cellphone inside the car to achieve that same result. Indeed, the case could negate a host of rulings in allowing the government to follow you within buildings, despite a ruling barring the warrantless use of thermal devices for such purposes.
The fact that a warrant would have been easy to obtain in this case is both telling and chilling.
The Rights of the People
Historically, governments have resisted any limitations on their power even when those limitations are workable and reasonable. Yet, it is not always easy to get a free people to surrender their privacy. To do so, citizens are fed false tradeoffs between privacy and security despite the fact that courts overwhelmingly approve warrants. Indeed, technology has made it faster and easier to obtain warrants by telephone and email. Members of both parties have yielded to the demands for greater and greater surveillance power.
They know that they are rarely given credit for defending privacy but could be blamed for not being sufficiently tough on crime or terrorism. For them, the choice is easy. For the rest of us, it is far more serious. If successful, most citizens will not only be practically forced to carry around a government surveillance device but will literally pay for the privilege. Make no mistake. You can follow him on Twitter JonathanTurley. View the discussion thread. Skip to main content. Tilting excessively in one direction or the other could bring anarchy or oppression.
But would it? We should depend not on officials' goodwill, he was saying, but on a system of restraints. This is what the Patriot Act has damaged, alarming those who believe with Madison that government will do whatever it is allowed to do. The act makes noncitizens, even those in the country legally for long periods, deportable for association with any group of two people or more involved in "terrorist activity," a term that is broadly defined.
As David Cole and James X. Dempsey point out in Terrorism and the Constitution, the law "potentially encompasses every organization that has ever been involved in a civil war or a crime of violence, from a pro-life group that once threatened workers at an abortion clinic, to the African National Congress, the Irish Republican Army, or the Northern Alliance in Afghanistan. The law also gives the CIA and military intelligence access to unverified information collected through grand juries. In normal criminal procedure, what the grand jury learns—which can be hearsay, innuendo, or rumor—remains secret unless used in a criminal case, where it is confronted by the defendant and tested for accuracy.
Critics say America is on its way to becoming a police state; they could not be more wrong.
No such opportunity exists if it is transferred into the files of intelligence agencies. Investigators of crimes unrelated to terrorism have also gained more latitude. Under previous law, for example, people could be subjected to so-called sneak and peek searches, in which authorities entered a home or office surreptitiously, if a judge found probable cause to believe that giving notice would adversely affect an investigation. Courts required notification within seven days.
The Patriot Act reduced "probable" cause to "reasonable" cause and changed the notification period to a "reasonable time. If the clandestine search is done under FISA, targets never have to be told unless the evidence is used in a criminal case, and even then, the affidavit justifying the warrant can remain classified and unchallenged. Roving wiretaps, already available for investigations of terrorism and other crimes, were supplemented with a less constrained alternative that could be issued by the secret FISA court.
Designed to follow a suspect who uses multiple phones, the wiretap order in normal criminal cases must name the person under surveillance and the phones or computers; under FISA as amended by the Patriot Act, neither the suspect nor the devices need be identified precisely. There is no requirement, as in a criminal wiretap, that monitoring occur only while agents have reason to presume that the target is using that phone or computer. Without these restrictions, authorities may record random conversations by everyone using those phones, including people suspected of nothing.
The Patriot Act also makes orders known as national security letters NSLs so easy to issue that they have become one of the FBI's most popular methods of acquiring data when no crime has been committed. The letters are just that—simple letters on FBI stationery that act as administrative subpoenas without meeting the Fourth Amendment's requirements for probable cause and judicial approval.
The head of any FBI field office can now issue them to libraries, Internet providers, banks, and other institutions, demanding records that include a person's financial transactions, phone and e-mail contacts, book-borrowing activity, and the like. Originally, NSLs were discreet peepholes through privacy walls, aimed at gathering intelligence without having to show a judge that criminal evidence was likely to be discovered. They have now become loopholes. No longer must they require "specific and articulable facts giving reason to believe" that the information belongs to "a foreign power or agent of a foreign power.
NSLs illustrate how hard it is to measure the Patriot Act's impact, for the implementations of the law's most significant elements are invisible to the public. Even most members of Congress aren't cleared for access to such information. One who is, Senator Ron Wyden, Democrat of Oregon, a member of the Intelligence Committee, has expressed alarm about what he knows but can't reveal. The government has classified certain legal interpretations of the law, he complains, creating "a gap between what the public thinks the law says and what the government secretly claims that it says. When Fine studied NSLs in , he was unable to draw persuasive conclusions about their effectiveness, even as he quoted FBI officials who hailed them as indispensable.
The inspector general's most specific documentation showed the importance of NSLs in tracing funds from the United States to foreign organizations on the State Department's terrorist list—financial investigations that produced some criminal prosecutions. In addition, officials have explained that by compiling lists of people's e-mail and phone contacts, they can diagram associations that can lead to far-flung actors in what might turn out to be dangerous plots. Whatever unseen successes this mapping effort may have achieved, its invisible costs can be reckoned in names of innocents and their personal contacts being added to government databases.
NSLs are running at a rate of about 50, a year, some 24, of which in were aimed at "United States persons," both citizens and legal immigrants. A gag order accompanying each NSL enforces the letters' secrecy: The order warns the recipient against saying anything about it to anyone except an attorney.
In the original law, the gag never came off and could not be contested. After an online court document accidentally identified a consortium of Connecticut public libraries as a recipient, Congress made a slight change, allowing an annual challenge to the gag in court but requiring the judge to defer to the government's claim that secrecy was needed.
In , the Second Circuit Court of Appeals ruled this a violation of the First Amendment and shifted the burden to the government to show why disclosure would pose a risk to personal safety, national security, diplomatic relations, or an ongoing investigation. The Obama administration chose not to appeal this decision, so it stands. Only three recipients of the hundreds of thousands of national security letters have challenged them—the library group, an online archive, and a small Internet provider—and all have won in court or forced a retreat by the government.
This is one way to roll back the onerous intrusions: Go to federal court for a constitutional ruling and bring to light the abuse. The Obama administration, though, is making such push-back more difficult by continuing the Bush administration's argument in court that parties who challenge surreptitious surveillance have no standing because they can't demonstrate that they have been under surveillance.
If past episodes in American history are a guide, several developments may have to occur. First, the objective threat must end and with it, the subjective fear. This doesn't mean that the perceived danger has to fall to zero, just to a level of comfortable risk. Having an open society entails some risk.
Perfect security, after all, is an aspiration of the police state.
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Since the threat of terrorism will not end with a signing ceremony, perhaps it will fade away as the causes of outrage evolve and the targets of violence shift. Terrorism may feel new and everlasting to Americans, but it runs in cycles elsewhere. We may eventually look around and say to one another, "Have you noticed? It doesn't seem to be happening much anymore. Second, the erosions of constitutional rights have to be clear and obvious enough to mobilize the public.
Violations committed in secret are hard to get mad about, especially when you're scanned, frisked, and searched whenever you get on a plane. We mutter complaints, then go along because we are persuaded that we have to relinquish privacy and dignity for security. This sets us up to accept other intimate intrusions. Once people let their bodies be probed and patted and rendered naked by the TSA, they have trouble generating outrage when their bank accounts, e-mails, and phone records are examined by the NSA—especially since they don't know it's happening.
Then, too, we all voluntarily disperse personal information through the Internet.
Boundaries between the private and the public are vanishing, both in constitutional law and in cultural habits. It might take egregious abuses to trigger enough indignation to make change, and the violations will probably have to be directed against innocent white Americans who don't have Arab names or foreign accents. A backlash could develop if law enforcement targets citizens for their political views or associations by accusing them of providing groups on the terrorist list with "material support," which the law defines broadly to include "training, expert advice or assistance.
Finally, even if most Americans someday agree that the era of terrorism has ended, and even if they become sufficiently troubled by the rights violations, the country may still need organized truth-telling akin to the Church Committee. Once the fear has abated, once the public concern is animated, then a truth commission can lay out our government's hidden abuses—not just torture, which has largely been exposed, but the scope of surveillance and its effects on ordinary lives. President Obama might have established such a commission early in his tenure. But he demurred. The president had it wrong.
Several other countries with much more painful histories—South Africa, Rwanda, and Cambodia among them—have learned how hard it is to go forward without looking back to expose and therefore heal. We cannot correct until we know what has to be corrected.
Surveillance Under the USA/PATRIOT Act
The excesses of the Patriot Act and other post-September 11 measures cannot be undone until their full results become visible. A former key Biden official began lobbying for the rightwing news channel in July, a recent filing shows. Seeking to relieve the pressure from asylum seekers in border towns, Mexico bused asylum seekers south. David K. He writes online at The Shipler Report. Skip to main content. Home Politics.
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