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Case Analysis

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Introduction To Law

Spring, 2003

Protection or Privacy

By overturning a decision made by the Foreign Intelligence Surveillance Court, a special federal appeals court panel upheld a portion of the 2001 Patriot Act giving the U.S. Justice Department greater ability to monitor phone and e-mail communications. In the wake of the September 11th terrorist attacks, Congress enacted The Patriot Act, as proposed by Attorney General John Ashcroft. Attorney General Ashcroft hoped to give the agencies under his command a greater ability to track the activities and communications of possible terrorist cells in the United States.

Among other provisions the Patriot Act allows greater surveillance abilities by easing restrictions on the use of roving wiretaps. Roving wiretaps allow investigators to tap all phones and computer accounts the suspect is known to have used. Also reduced by the Patriot Act is the extent of judicial supervision by easing and at times eliminating the requirements needed to obtain a warrant to use wiretaps. However, critics have questioned and criticized The Patriot Act for eroding constitutional liberties provided by the first, fourth and fourteenth amendments.

The legislature has considered standards governing the constitutionality of such surveillance in the past. Title III of the Crime Control and Safe Streets Act of 1968 attempted to protect the fourth amendment by creating a judicial check. The fourth amendment protects citizens from illegal search and seizure; as a check, authorities must provide a judge or magistrate with probable cause that such surveillance will provide evidence of an offense. Any evidence gathered in violation of Title III's restrictions would be inadmissible in court.

While Title III attempts to limit the abilities of criminal investigators, The Foreign Intelligence Surveillance Act of 1978, known as FISA, governs the gathering of intelligence about foreign persons in the United States. According to Susan Herman a columnist for the Jurist, under FISA, probable cause is not required to monitor potential suspects. However, because the goal of investigators is to gather intelligence instead of evidence of crime, challenges to the constitutionality of FISA are at best questionable.

The Patriot Act is the newest legislation regarding surveillance. Herman is critical of the Patriot Act claiming that it applies the diminished standards of FISA to investigations that could include United States citizens. Further, it extends the powers provided by Title III without requiring probable cause. In other words, intelligence does not need to be the primary interest of investigators. As stated in an article issued by the Associated Press, "The changes permit wiretaps when collecting informationÐ' a Ð''significant purpose', rather than Ð''the purpose', of an investigation."

One of the Patriot Act's fiercest challenges comes from the American Civil Liberties Union. According to the Associated Press the ACLU argues that the Ashcroft version of the Act will restrict protected rights such as free speech and due process. The ACLU and other civil liberties organizations are seeking ways to appeal to the Supreme Court.

An appeal to the Supreme Court would surely argue that Patriot Act violates the protection from unwarranted searches and seizures as stated in the fourth amendment. Because of the lax requirements for warrants and the governments ability to use wiretaps on anyone in communication with a suspect, many of the accepted applications would A) not be warranted by previous standards, and B) not normally be admissible in a criminal trial. If given a writ of certiorari, that is the Supreme Court agreed to hear the case, the Court would have to apply the strict scrutiny test to such an appeal. The strict scrutiny test requires that the legislation



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