Privacy vs. Patriotism: Ethical Considerations and Practical Realities of the U.S.A. PATRIOT Act
The balance between security and privacy has long been a concern for governments and private citizens, and was an explicit source of worry and contention in the formation of the United States as an independent nation. Though no right to privacy as such is explicitly guaranteed or even mentioned in the Constitution, the Fourth Amendment directly forbids the government from searching a person’s property without considered authorization or clear probable cause (the definition of which has itself been the subject of much debate), and other elements of federal and state laws and court rulings can be seen as affirmations of freedom from government surveillance to a certain degree. Though always a contentious issue, then, the line between what the government is allowed to do in order to promote national security and what private citizens are entitled to in terms of their own privacy had been fairly clear for much of the nation’s history, even if the rectitude of this line was disputed.
The Information Age has increased the complexity and the uncertainty of this issue, however, as technological means of storing and transmitting information have opened new threats to national security and to privacy concerns alike. What the government needs to do and should be allowed to do in order to promote and protect national security has grown, and for many decades these needs grew faster than the legislation that would have made the necessary governmental actions legal. At the same time, wireless communications, the Internet, and a variety of other now-ubiquitous elements of most U.S. citizens’ daily lives make privacy an ever-more-pressing yet ever-more-elusive concern, when what is said in a “personal” cell phone conversation or what is searched for in the “anonymity” of the Internet can easily be observed by a third party — including the government — with a minimal amount of technical expertise and cost. This has made the question of privacy and its conflict with the perceived needs of national security efforts far more immediate and ever-present than it was before, and in the midst of this technological explosion and its resultant controversies the terrorist attacks of September 11th, 2001, rendered national security threats and the means of preventing and countering these threats a paramount feature not only of the government but also of the majority of citizens in the United States.
In direct response to these attacks, the U.S.A. PATRIOT Act (the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) was passed, which in addition to may other provisions makes it legal for the federal government to secretly wiretap phones, monitor Internet usage, and perform a number of other surveillance techniques in a clandestine and at times unwarranted (as in, not officially authorized by another party in the government) fashion. This has, of course, led to cries of “foul!” By privacy advocates while being heralded as a strong an important step forward by national security hawks. Examining the issue makes it clear that both sides have valid points, but ultimately the nation can only move forward in one direction. The concrete realities with which the nation and the globe are faced today make privacy concerns pale in light of national security threats, and the safety and peace of the citizenry is far more important than their privacy.
The basic disagreement highlighted by the surveillance aspects of the U.S.A. PATRIOT Act is relatively simple and straight forward on the surface, built on seemingly indisputable premises: national security — the life and property of the residents of the United States of America — is of paramount importance, but the right to privacy is also a fundamental concern of the people. Examining these premises through some actual research and rational consideration, though, reveals that both are somewhat faulty but that the second is truly a luxury rather than a fundamental human right. That is, the protection of life and property through a strong national security program is an indisputable need, as without the ability to protect life and property the government is truly useless, but the right to privacy is more imagined than existential, as shown both in governmental documents and a careful application of reason. This is far from an agreed-upon perspective, but it is the only concretely justifiable one.
Though privacy is assumed by many to be a fundamental right, and indeed there are ethical as well as state and federal legal limitations on the amount of “spying” or surveying that private citizens can perform on each other and that the government can perform on private citizens, there is actually no mention of the right to privacy in the Constitution nor is there any other law broadly guaranteeing any sort of privacy to the citizens of the United States (ACLU, 2003; Linder, 2012). There are several amendments and other features of federal law, including some important court cases, that have included an assessment of privacy rights in highly specific areas but have ultimately affirmed that no blanket right to privacy exists (ACLU, 2003; Linder, 2012). Certain privacy rights exist in the home, such as the freedom from quartering soldiers during peacetime in the Third Amendment and the freedom from unwarranted searches and seizures as provided in the Fourth Amendment, yet even these constraints have clear caveats built into them that allow for laws requiring private citizens to house soldiers during times of war and for searches based on probable cause as determined by a police officer under certain constraints (Linder, 2012). Other privacy rights regarding one’s own body and certain medical decisions have also been affirmed, though the right to one’s own body certainly isn’t complete given drug laws, the criminality of attempted and assisted suicide, and more (ACLU, 2003). The assumption that a right to privacy exists and is expressed in the basic structure of our nation’s laws and government is clearly false.
Interestingly, a more concrete argument can be made for the right to privacy in regards to certain non-concrete elements of personal choice. The First Amendment grants a “privacy” of sorts when it comes to religious practice and to the holding and expression of ideas, and this is the area in which the U.S.A. PATRIOT Act comes into conflict with beliefs about the right to privacy (Linder, 2012; Verite, 2012). According to the White House at the time of the Act’s reauthorization in 2006, this legislation and the legalization of information gathering techniques that it provides has been and remains an essential part of combating global terrorism and specifically terrorism on United States soil, yet according to others there is no real freedom of ideas and expression as guaranteed in the First Amendment (and as interpreted in subsequent Supreme Court rulings) if the federal government can potentially monitor any and all communications between private parties in the United States (ACLU, 2003; White House, 2006; Verite, 2007). According to this view, the U.S.A. PATRIOT Act and the national security needs that have been used as a justification for this act are in direct conflict with some of the most basic and foundational principles upon which the nation was founded. Even the First Amendment is limited, though, both in the language of the amendment itself and in the interpretations of this amendment over the course of the nation’s development, and anything that might present an immediate threat to person or property is definitely not protected speech (Linder, 2012). Indeed, if this and other rights to privacy actually existed in general and universal forms without numerous explicit exceptions, law enforcement would be all but impossible and both internal and external threats would flourish. Privacy only exists for those matters that have solely private impacts, and the U.S.A. PATRIOT Act does nothing to alter this basic situation.
Protecting Security, Respecting Privacy
First, it is important to note that the U.S.A. PATRIOT Act does not give the federal government or any entity the right to simply wiretap or otherwise clandestinely gather information on any person they choose, but simply broadens the power that certain federal authorities have in collecting information on or from those that they have reasonable reason to suspect pose a threat to national security (White House, 2006; Verite, 2007). That is, there must be something akin to probable cause demonstrated before surveillance of communications, Internet activity, and other information-gathering techniques become legally available to federal law enforcement (Verite, 2007). It is true that the parameters of reasonable suspicion under the U.S.A. PATIROT Act are not as strictly defined or as thoroughly understood as the probable cause exception to the Fourth Amendment, but this is likely due only to the brevity of the Act’s existence; the Fourth Amendment has been a part of this nation’s founding laws and principles for more than two centuries, and the Act is only entering its second decade of existence (White House, 2006; FinCEN, 2012; Linder, 2012). Surely it will take more time for the full…