Balance of Privacy vs. Security: A Historical Perspective of the USA PATRIOT Act

I. INTRODUCTION II. SURVEILLANCE AND COUNTER-TERRORISM AT HOME AND ABROAD BEFORE THE USA PATRIOT ACT A. United States B. Survey of Select Western Democracies III. THE USA PATRIOT ACT A. Passage of the Act B. Key Provisions of the Act and Their Implications IV. POST USA PATRIOT ACT DEVELOPMENTS A. Judicial 1. Criminal Cases 2. Freedom of Information Act Cases 3. Civil Cases B. Future Areas of Litigation and Legislation C. Administration's Response to Criticism of the USA PATRIOT Act V. ANALYSIS OF THE BALANCE BETWEEN PRIVACY AND SECURITY VI. CONCLUDING OBSERVATIONS A. Historical Return to Equilibrium B. Technology's Impact on the Frequency of Oscillations Between Privacy and Security C. Global Privacy/Security Convergence in Democracies INTRODUCTION As the frequency of threats to U.S. national security has increased since the late 1700s, the balance between privacy and security has become ever more volatile. Several factors have contributed to this volatility: 1) changing technologies increase the ease with which terrorist groups can commit violent acts against society, while also increasing the severity of the ensuing harm; 2) as a result of popular pressure to provide more security, the U.S. government has had to increase the speed and severity with which it responds to these threats; 3) as the U.S. government increases the magnitude of its response, infringements on personal privacy have also increased. Surveillance has advanced from static telephone wiretaps to interception by filtration software of any given e-mail sent, received, or merely directed through a particular router and eventually, as technology advances, to real-time automated surveillance of voice-over-internet communications and continuous tracking of individuals by their own cellular phones. This response to terrorism has led to increased oscillation between privacy and security interests producing cognitive dissonance in the population at large. This dissonance is seen in the contrast between people's support for strong national security and their desire to continue a strong legacy of personal privacy. Yet historically, a return to equilibrium has occurred as the initial threat dissipates and is better understood and defended against. Privacy issues have arisen and appropriate changes in legislation, regulation and judicial opinions have brought the privacy and security balance back to its equilibrium. This oscillation is also documented in Canada and the United Kingdom. In these nations, which share similar legal and political cultures with the United States, it appears that despite terrorist threats challenging these countries, there has been a return to their historical privacy/security equilibrium. With the adoption of the Internet as a universally accepted mode of communication, the potential for Big Brother to be watching is at an all time high, especially following the devastating terrorist attacks of September 11, 2001 (9/11). The Bush administration, in reaction to those events, obtained passage of the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) (1) so as to loosen perceived restraints on obtaining information about suspected terrorists and future attacks. Proponents of the PATRIOT Act claim that if earlier proposed legislation had been enacted prior to the tragic events of 9/11, then the disaster could have been prevented. The advocates of this position typically argue that the Act itself does not and will not significantly affect the liberties and privacy of law-abiding citizens and that security should be the overriding consideration. (2) Assuming that this is true, the concern remains not that the Act will overtly violate the Constitutional rights of U.S. citizens, but that the balance between privacy and security will be imperiled. …

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