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Your Rights and the Patriot Act
by MELISSA LOU
Melissa Lou speaks to Patricia Bellia, an assistant professor at the University of Notre Dame Law School who shares her opinions on cyberspace and constitutional law.
Notre Dame, IN, April 23, 2003 -- It is difficult in this day and age to speak of rights without producing an image of a courtroom and lawyers in the mind of the listener. In a tech world, however, many new questions and gray areas arise which need new and stricter legal definitions. In the aftermath of 9/11 and entirely new set of rules and laws, the USA Patriot Act, entered an already confusing and continually changing arena of internet and technology legislation. With this in mind, Campus Voice interviewed Prof. Patricia Bella, an assistant professor at the University of Notre Dame Law School and asked her to clarify the current legal situation of the Patriot Act and our rights in cyberspace and beyond.
According to Prof. Bellia it is still too early to asses the effect of the Act on people's right to privacy and how it will be implemented. She explains that the main criticism against the new Act relates to government access to electronic communications and government access to records of citizens' transactions with other private parties, which makes it easier for the government to acquire "private" information about people.
With regards to Freedom of Speech, she adds "some of the concern is that the act will chill speech, because people will be afraid that their "private" communications will become "public."
She highlights that many of its most controversial provisions were proposed months and even years before the September 11 attacks. Provisions allowing law enforcement agencies and intelligence agencies to share information had been proposed two years prior to 9/11, yet the "then-current version of the federal wiretapping act prohibited such sharing."
The changes, however were necessary because the laws were not keeping pace with "significant changes in information technology, leaving law enforcement officials unable to gather information of the same type that they had historically gathered under existing surveillance laws." Each agency had different standards regarding their information gathering techniques. The Patriot Act thus fixed inconsistencies regarding how the different types of agencies gathered information.
The problem, as Prof. Bellia points out is that "the enactment of the Patriot Act was not preceded by a candid public debate about the government's surveillance capabilities, and about what balance between privacy and security the law should seek to strike. That point is often lost, and people blame the Patriot Act for broadening surveillance capabilities, when many of those surveillance capabilities existed long before."
She explains that, while" there is no question that coordination across different federal agencies with different jurisdictions is extremely difficult, aspects of that coordination were limited by legal restrictions--as in the restrictions on law enforcement sharing of wiretap information with the intelligence community." This is an example of the difficulties the Act is trying to correct.
With regards to data mining programs and information gathering, Bellia adds that "the major constitutional restriction on the government's acquisition of private information is the Fourth Amendment's prohibition on warrantless searches and seizures." This Amendment guarantees that the government cannot invade a "reasonable expectation of privacy" without a search warrant.
Greatly expanded programs, such as the Total Information Awareness program proposed and rejected in Congress, is "that it envisions not only the collection of data, but the compiling of existing information from a vast array of public and private databases." The program attempts to circumvent the 4th Amendment because one does not maintain an expectation of privacy in information that one voluntary passes into the hands of a third party, invalidating the amendment.
Moreover, explains Prof. Bellia, "our privacy legislation tends to be sector-specific, enacted in response to well publicized privacy breaches. Without legislation to provide more comprehensive protection for private data, it is not surprising that the government seeks to harvest this information." Thus, the government can harvest information from individuals if the information is freely given without breaking any existing laws.
Another area in which the government has been criticized is the government's shutting down access to webpages when it does not agree with their content. Prof. Bellia comments that in these cases, "any government action to censor web content with which it disagrees raises serious questions under the First Amendment, which generally prohibits government restrictions on speech."
Under current case law, continues Bellia, "the government can act to prevent imminent unlawful conduct without running afoul of the First Amendment." Examples of this restriction include the circulation on the internet of bomb making recipes or information on how to manufacture illegal drugs, that is information designed to incite unlawful activity.
With regards to the international response to the USA Patriot Act, she adds that "European countries take a vastly different approach to privacy than the United States. Europe has a comprehensive privacy directive that limits how companies can process and transfer data; it does not take the sort of sector-specific approach that we have in the United States." Thus, most of the infringements on privacy and freedom of speech existing in America would not exist in Europe.
Prof. Bellia concludes that "the problems that many people focus
on--about the government's surveillance capabilities and about the widespread
availability of databases containing "private" information--are
not problems that the Patriot Act created; the Patriot Act merely brought
them into the public eye. But perhaps current concerns about privacy will
spur further legislative debate in this area.