The Patriot Act Vs The United States Constitution
Khadija Nurul Hasan
Chaffey College

The Patriot Act Vs The United States Constitution The “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” Act, or Patriot Act was passed on October 24th, 2001 with almost all legislators in favor of it. The terrorist attacks on the Pentagon and the World Trade Center on September 11, 2001, sparked a nationwide desire for heightened security and increased abilities for law-enforcement agencies to track and stop terrorists. Thus, the Patriot Act was created in response, and passed with the aim of battling terrorism. However there are always two sides to any passing of a political law: those who support it and those who oppose it. Those who support the Patriot Act have consistently countered that the provisions of the Act are necessary to protect the people from future terrorist attacks, and that the law does an adequate job of protecting individual civil liberties; while those who oppose it argue that the Act is an egregious assault on individual liberties as it violates their constitutional rights. The hypothesis of this paper is to dissect and analyze Sections of the Patriot Act to see if they are in violation of the United States Constitution. Specifically the paper will analyze Sections 505, 215 of the Patriot Act to see if they violate the Constitution.
The first violation in question comes from Section 505 of the Patriot Act. Section 505 expands the Federal Bureau of Investigation or the FBI’s authority to issue National Security Letters or NSLs demanding customer records from various public establishments. According to the American Civil Liberties Union (2011), an organization dedicated to the protection of the constitutional rights of the people, “The National Security Letter provision of the Patriot Act radically expanded the FBI's authority to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval.”
National Security Letters are administrative orders that are sent to compel the recipients of the Letters to provide information to federal investigators. As authorized by the U.S. Patriot Act, the Letters includes gag orders that forbid recipients from discussing the letter's contents and instructions. The letters do not require a judge's authorization, and are subject to limited judicial review. This Section is in direct violation of the First amendment of the United States Constitution which states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.(U.S. Const. amend. I)
The gag order directly negates the freedom of speech part of the First amendment of the US Constitution. There have been numerous cases against the use of National Security Letters since the passing of the Patriot Act. One such case is mentioned in an article by David L. Hudson Jr, (2004) an author, a professor of Law at the Vanderbilt Law School and a First Amendment scholar, in which he states:
In Doe v. Ashcroft (2004), U.S. District Judge Victor Marrero in New York ruled that Section 505 violated the First Amendment. The judge wrote: “Democracy abhors undue secrecy” and “an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society”.
The other Section in violation of the US Constitution is Section 215 of the Patriot Act. Section 215 allows the FBI to order any person or entity to turn over "any tangible things," so long as the FBI "specifies" that the order is "for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities." (H.R. 3162, 2001). Furthermore, this Section also states that the FBI are not specifically required to justify themselves by proving probable cause, nor are they required to show reasonable grounds to believe that the person whose records they seeks is engaged in criminal activity. However, the Fourth amendment of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. (U.S. Const. amend. IV)
This Section of the Patriot Act clearly violates the Fourth amendment in terms of unreasonable search and seizure and probable cause. In a book called “Understanding Terrorism: Analysis of Sociological and Psychological Aspects”, authors, Ozeren, S., Gunes, I. D., & Badayneh and D.M, state:
First, there is expansion of the types of entities whose records can be searched. Under the old provisions, the FBI could obtain records only from “a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility.” After the Patriot Act, third party holders of target’s financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without the target’s knowledge or consent. Second, there is expansion of the types of items subject to search and seizure. Under previous legislation, the FBI could only seek “records.” Under the Patriot Act, the FBI can seek “any tangible things (including books, records, papers, documents, and other items).” Now the FBI needs only to certify to a FISA judge without evidence or probable cause.
Section 215 of the Patriot Act like Section 505, also violates freedom of speech, a part of the First amendment of the US Constitution, when it states:
No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this Section) that the Federal Bureau of Investigation has sought or obtained tangible things under this Section. (H.R. 3162, 2001) Although the outcome of the case was not disclosed, the Electronic Frontier Foundation, a donor-funded, nonprofit organization dedicated to the protection of digital rights, filed a lawsuit on the 10th anniversary of the Patriot Act, suing the Justice Department for its refusal to release information of innocent civilians that it had unreasonably searched through and seized without probable cause, all under the provision of Section 215 of the Patriot Act. The supporters of the Patriot Act however argue that it the Act is completely constitutional and does not infringe upon the civil liberties of individuals. In an article written by Viet Dinh, a professor of law at Georgetown and former assistant Attorney General for legal policy, in the 2005 issue of Human Events magazine, he denies any constitutional violation and makes clear his agreement with the wording of the Section 215 as he states: All requests under Section 215 must first be granted judicial approval and fully reported by the Attorney General to Congress semi annually. The provision could not be used to investigate ordinary crimes or domestic terrorism, and expressly protects First Amendment rights. The records of average Americans, and even not so average criminals, are beyond reach.
However a recent case filed against the FBI contradicted Dinh’s statement as it proved the Patriot Act was in violation of the First amendment by the use of NSLs and also in violation the Fourth amendment by unreasonable seizure without probable cause of innocent citizens. The American Civil Liberties Union published an online article on their website which included the statement provided by Peter chase, the Director of Plainville Public Library and Chairman of Intellectual Freedom Committee for the Connecticut Library Association, in which he addressed the case in question, Doe v. Gonzales (2005), which was filed by him and his colleagues. This case was filed to protest against a gag order that came with the demand for release of records of the library’s patrons. In the statement Chase provided he also explains why him and his colleagues decided to take action against it:
As a librarian, I believe it is my duty and responsibility to speak out about any infringement to the intellectual freedom of library patrons…When I and my colleagues received FBI National Security Letters demanding access to our patron's records, I knew that this power had had already been declared unconstitutional by a district court in New York. The government was telling Congress that it didn't use the Patriot Act against libraries and that no one's rights had been violated. I felt that I just could not be part of this fraud being foisted on our nation.
In September 2006, a federal district court ruled that the gag on the librarians violated the First Amendment and the government ultimately withdrew both the gag and its demand for records.
The Sections 505 and 215 of the Patriot Act were analyzed to check if they are in violation of the United States Constitution. Section 505 which expanded the FBI’s capability and power of issuing NSLs and demanding records of all individuals from various public establishments was dissected to see if it violates freedom of speech, a right guaranteed by the First amendment of the Constitution. Both the First amendment and Section 505 of the Patriot Act were researched along with cases filed against this particular Section in violation of the First amendment. The end result was the discovery that the Section 505 of the Patriot Act was in fact in violation of the First amendment of the United States Constitution. Similarly Section 215 of the Patriot Act which granted the FBI unlimited power to seize any material it deemed necessary and dangerous without having to specify exactly what is to be seized, without proving probable cause, all under the pretense of protection against terrorism was also dissected to see if it was in violation of both the First and Fourth amendment of the United States Constitution. After rigorous research of the facts and cases concerning Section 215 to see if it was in violation of the freedom of speech provided in the First amendment and in violation of unreasonable search and seizure which is provided the Fourth amendment, it was established that Section 215 did negate the First and Fourth amendment of the United States Constitution. The hypothesis of this paper, of the Patriot Act being in violation of the United States Constitution was thus correct and was proved through thorough analysis of Sections 505 and 215 of the Patriot Act and the First and Fourth Amendment of the US Constitution.

References
(2011, January). National Security Letters. Retrieved from http://www.aclu.org/national-security-technology-and-liberty/national-security-letters
Chase, P. (2006, May). Doe v. Gonzales: Fighting the FBI's Demand for Library Records -Statement of Peter Chase. Retrieved from http://www.aclu.org/national-security/doe-v-gonzales-fighting-fbis-demand-library-records-statement-peter-chase
Doe v. Gonzales, No. 546 U.S. 1301 (2005).
Dinh, V. (2005, May 16). Patriot Act Exemplifies Checks and Balances. Human Events, 61.
Husdon, D.L.Jr. (2004). Patriot Act. Retrieved from http://www.firstamendmentcenter.org/patriot-act Ozeren, S., Gunes, I. D., & Badayneh, D. M. (2007). Understanding terrorism: analysis of sociological and psychological aspects. Amsterdam, the Netherlands: IOS Press.
Patriot Act of 2001, H.R 3162, 107th Cong., (2001). Retrieved from http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.3162.ENR:%20
U.S. Const. amend. I.
U.S. Const. amend. IV.