What 4th amendment concerns have been raised by the US Patriot Act?

Answer 1

a little something i wrote up today. This is a suitable answer from a non-technical perspective. If you are researching this for legal/criminal justice/etc reasons, you'll need something more in depth.

Should the US government be allowed to monitor domestic electronic communications of American citizens, without judicial oversight? Under current law (USA PATRIOT Act), federal law enforcement agencies are allowed to monitor telephone and email records, and to access public library records. In this paper, I will argue that the federal government should not be allowed to wiretap phones, monitor email, or check public library records without a search warrant.

1 The Fourth amendment to the US Constitution provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (US Const., amend. IV.)

2 The Fourth amendment further provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (US Const., amend. IV.)

3 Federal law enforcement agencies use "National Security Letters" to gain access to records of electronic communications, and public library records; neither with issuance of a warrant by, nor subject to review of, the judicial branch.

4 The federal government's accesses of communication records are in direct opposition to the rights guaranteed by the fourth amendment.

5 The federal government should not be allowed to take actions which violate the rights laid out in the constitution, including its amendments.

∴ The federal government should not be allowed to spy on American citizens by monitoring their email, wiretapping their phones, or checking records from public libraries - without warrants.

The Fourth Amendment "provides the primary defense against government invasions of privacy" (Garlinger). A plain language reading of the text of the Fourth Amendment reveals that people have a right to be secure from unreasonable searches. That revelation leads to the question, what searches are reasonable or unreasonable? "The Fourth Amendment currently does not extend to information voluntarily given to third parties such as ISPs. The government, therefore, can access private information held by ISPs with little oversight or accountability" (Garlinger). This view is used to justify the government's review of data that the average citizen might consider private. To consider the content of an email anything other than the analog of the content of a letter written on paper and sent via postal mail, is an untenable position. Indeed the content of a letter is voluntarily handed over to the US Postal service, but sealed in an envelope. The content of an email is handed over to an ISP, but because of the nature of how data transfer works, email is transferred letter-by-letter, in a plain text format (Klensin); not inside a sealed envelope, as with postal mail.

Federal law enforcement agencies, in particular the Federal Bureau of Investigation, use National Security Letters to initiate a search of personal records from telephone and internet service providers and public libraries. "Without any judicial review, the FBI issues NSLs to telecommunications providers to obtain customer subscriber information" (Garlinger). If the FBI were conducting searches which they believed an average citizen, or even judge, would consider reasonable, they could use the judicially reviewed search warrant process to gain access to records.

Contrasting the actions of the FBI - in using National Security Letters to acquire U.S. citizens' personal records - with the rights guaranteed in the Fourth Amendment; the two are diametrically opposed. It is particularly disturbing to see the government act contrary to the U.S. Constitution. The use of National Security Letters in the gathering of data related to U.S. citizens should be halted immediately. The federal government should instead use the already available judicial warrant application process, thereby allowing the Judiciary to maintain control, require probable cause, and ensure that due process is afforded the citizens.

In summary, the federal government should not be allowed to spy on U.S. citizens. American jurisprudence has a long history of allowable methods, which are not constitutionally tenuous, for the government to obtain information. By insisting on the issuance of warrants by judges, the United States government would better serve the interests of the citizens.

Works Cited

Garlinger, Patrick P. "PRIVACY, FREE SPEECH, AND THE PATRIOT ACT: FIRST AND FOURTH AMENDMENT LIMITS ON NATIONAL SECURITY LETTERS." New York University Law Review 84.4 (2009): 1105-1147. Academic Search Elite. EBSCO. Web. 24 Feb. 2011.

Klensin, John C. "RFC 5321 - Simple Mail Transfer Protocol." IETF Tools. Internet Engineering Task Force, Oct. 2008. Web. 24 Feb. 2011.

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, Title II, § 211, Pub. L. No. 107-56, 115 Stat. 272 (2001).

US Const., amend. IV. Print

Answer 2

The act's provisions that allow the secret "sneak-and-peek" searches.

I'm being dead serious that's what my textbook says.