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Chapter 2: The Right to Privacy
This chapter examines the erosion of Fourth Amendment privacy rights in the wake of September 11. Many fundamental prohibitions on government surveillance have been revoked in the past year - often with little debate. Under the USA PATRIOT Act, for example, the federal government may now use its exceptional powers created for foreign counterintelligence work in domestic criminal investigations, so long as it can certify that some foreign intelligence purpose will be served. And under new regulations issued by the Attorney General, the FBI can now carry out surveillance on any religious, civic or political organization in the United States, without even the slightest suspicion of wrong-doing. The government has also announced a new program to further enhance its capacity for surveillance, by encouraging private citizens to report on the “suspicious activity” of other people.
THE LEGAL BACKDROP
The right of individual privacy is protected under the Fourth Amendment to the U.S. Constitution. The Fourth Amendment provides:
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.
As the U.S. Supreme Court has explained, the Fourth Amendment limitations on the government’s search and seizure powers are designed to “prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” It protects, what is in essence, our “right to be left alone,” a right which U.S. Supreme Court Justice Louis Brandeis termed “the most comprehensive of rights, and the right most valued by civilized men.”
The right to privacy is also protected by international law. Article 12 of the United Nations Universal Declaration of Human Rights provides in relevant part, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.” Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protects privacy rights in similar terms. The United States is a signatory to this covenant.
THE USA PATRIOT ACT
THE PASSAGE OF THE USA PATRIOT ACT
In the wake of September 11, Congress enacted the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act. The Act, which amends 15 different federal statutes, grants unprecedented new powers to law enforcement and intelligence agencies. Although Congress passed the Act in response to the September attacks, most of the new powers are not limited to anti-terrorism investigations, but instead apply to all federal investigations.
Despite the sweeping nature of the changes, the USA PATRIOT Act was enacted very quickly. Attorney General John Ashcroft submitted a massive proposal to Congress just one week after the attacks and declared that the new powers should be enacted within three days. Although the Act was not adopted this swiftly, President Bush signed an expansive 342-page bill into law on October 26, 2001 - less than six weeks after the attacks.
The pressure to pass the Act had been so great that there was virtually no time for public hearings or debate. The final version of the bill was drawn up by a select group of officials from the administration and Congress, who met hurriedly behind closed doors. Most members of Congress did not even have the opportunity to read the final version before it came up for a vote.
Because the USA PATRIOT Act affects many different areas of law – ranging from immigration to surveillance to intelligence sharing between federal agencies – its many implications for civil liberties arise in different sections of this report. Here, we consider some of the consequences for privacy rights in the context of Fourth Amendment jurisprudence.
“SNEAK AND PEEK” SEARCHES AND SEIZURES
Within the Fourth Amendment’s guarantees of the individual’s rights against unreasonable search and seizure is a requirement that the government give notice before searching through or seizing an individual’s belongings. In executing a warrant, law enforcement officials must generally knock and announce their presence before entering private space. The knock and announce requirement is deeply rooted in English common law.
Before the USA PATRIOT Act, prior notice could be suspended only under a narrow set of circumstances. In Richards v. Wisconsin, the U.S. Supreme Court held that officers are not required to knock and announce their presence if they have reasonable suspicion that doing so would be dangerous or futile. They can also enter a dwelling without notice if they have reasonable suspicion that an announcement would inhibit the investigation of a crime by, for example, enabling the destruction of evidence.
The USA PATRIOT Act has greatly expanded the ability of federal officials to carry out searches and seizures without giving prior notice. Section 213 of the Act authorizes so-called “sneak and peek” warrants, which allow federal agents to covertly enter a person’s home or office. Under Section 213, the government can delay notice of a search if it can show “reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result.” The government can also seize items without prior notice if it can show a “reasonable necessity” for the seizure. Police officers, in other words, can secretly enter a person’s home or office while they are away and search through and seize private belongings - as long as they meet this exceedingly low standard. They can then delay notification for an additional “reasonable period.”
These new powers are not limited to anti-terrorism investigations. They apply to all federal investigations, including routine criminal cases. Furthermore, Congress did not create a sunset provision for this section. This means that, unlike some other powers granted in the Act, the Section 213 powers are permanent.
FOREIGN INTELLIGENCE AND DOMESTIC SPYING
Section 218 of the USA PATRIOT Act amends the Foreign Intelligence Surveillance Act (FISA) of 1978, which was enacted to establish a separate legal regime for the gathering of foreign intelligence information. FISA grants the FBI extraordinary powers to carry out electronic surveillance and physical searches in counterintelligence operations against foreign powers or their agents. Under the Act, for example, surveillances and searches are conducted surreptitiously, without any notice to targets unless and until they are prosecuted. The surveillances and searches are authorized against a foreign agent for a period of 90 days and against a foreign power for an entire year. In seeking warrants under FISA, moreover, the FBI does not have to meet the traditional criminal standard of probable cause, and is instead subject to a more relaxed foreign intelligence standard. In addition, the FBI only has to show that the place to be searched or monitored is being (or is about to be) used.
In light of the intrusive nature of these powers, FISA created a wall between the counter-intelligence measures aimed at foreign agents and the surveillance measures used in ordinary domestic law enforcement investigations. The FBI could only use its FISA powers when it sought warrants for “the purpose of” gathering foreign intelligence information. FISA powers were not to be used to spy on ordinary U.S. citizens.
Section 218 of the USA PATRIOT Act greatly expanded the governments’ powers under FISA, however. It authorizes the issuance of FISA warrants in situations where the gathering of foreign intelligence is merely a “significant purpose” of the warrant. The “primary purpose” could be something else entirely, such as the collection of information for a routine domestic criminal investigation. At first glance, the difference may seem minor, but in practice, the change has far-reaching consequences for basic constitutional rights.
Prior to the USA PATRIOT Act, if FISA was used by government officials, the results of the ensuing search were almost never admissible in criminal cases except where the government could demonstrate that the evidence was only a byproduct of the foreign intelligence that the warrant produced. Now, since foreign intelligence must only be a “significant purpose” of the warrant, government officials could use FISA as a means of collecting evidence for use in criminal investigations so long as they can certify that some foreign intelligence purpose will be served. Thus, FISA, which was specifically enacted to facilitate the gathering of foreign intelligence, can now be used as a way to sidestep the Fourth Amendment’s probable cause requirements in criminal investigations.
Section 218, unlike Section 213, does contain a sunset provision. Without congressional action to the contrary, its provisions will automatically expire on December 31, 2005.
Foreign Intelligence Surveillance Court
The Foreign Intelligence Surveillance Court (FISC) has already issued a public decision limiting the government’s interpretation of its new FISA powers. FISC is a secret court composed of 11 federal district court judges, who individually review the Attorney General’s FISA applications. The proceedings are non-adversarial, and the records and files of the cases are sealed. Although the FISC has been in operation for more than 20 years, it has reportedly denied only one government application out of the thousands of applications reviewed.
It is this record, in part, that makes the FISC’s recently issued public decision so remarkable. In the opinion, written by the Honorable Royce C. Lamberth, the Court considered the effects of the USA PATRIOT Act on the ability of FBI counterintelligence officers to share FISA information with criminal prosecutors. The government had proposed new procedures for information-sharing, arguing explicitly that the new amendments “allow FISA to be used primarily for a law enforcement purpose.” The Court found that under a fair reading of the government’s proposal, criminal prosecutors would have “a significant role in directing FISA surveillances and searches from start to finish…guiding them to criminal prosecution.” Criminal prosecutors, in other words, would be telling the FBI when and how to use FISA, turning the entire purpose of FISA on its head.
The Court refused to adopt the government’s proposed procedures. Instead, it amended the government’s proposal – spelling out very clearly that “law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances.” The Court’s decision was unanimous. The Department of Justice, however, has announced it will appeal the decision and insists that the Court has unlawfully restricted its powers under the USA PATRIOT Act.
THE FBI’S ABILITY TO ACCESS PERSONAL RECORDS
The USA PATRIOT Act also amended FISA in broadly expanding the government’s powers to access personal records. Under Section 215 of the Act, the FBI may apply for a court order requesting the production of “any tangible thing (including books, records, papers, documents and other items).” The judge is required under Section 215 to enter the order so long as the FBI officer provides a written statement declaring that the items are being sought for an ongoing investigation related to international terrorism or clandestine intelligence activities.
Previously, the FISA provision on records applied only to foreign powers or their agents. Now, the Act may be applied with increasing frequency to “United States persons,” a category which includes both U.S. citizens and lawful U.S. residents. Although Section 215 prevents any investigations of U.S. persons based solely on the exercise of First Amendment free speech rights, it does not block investigations on any other basis - no matter how tenuously a person’s activities might be connected to an investigation on international terrorism or clandestine activities.
Indeed, the FBI may now be privy to what books an individual checks out at the public library or purchases at the local bookstore. In a nationwide survey of 1,020 public libraries early this year, for example, the University of Illinois found that 85—or 8.3 percent—of libraries had been approached by federal or local law enforcement officers for information about patrons relating to antiterrorism investigations. The information sought might also include what internet sites an individual surfed while visiting the public library. And to get all of this information, the FBI need only obtain a warrant from the Foreign Intelligence Surveillance Court, which, as already mentioned, is not in the habit of denying warrant applications. Meanwhile, citizens would have absolutely no idea they were the subject of a search, because the law does not require that individuals be informed. Indeed, librarians and booksellers can be criminally prosecuted for revealing the details or extent of the FBI’s request for information.
Like Section 218, Section 215 is scheduled to expire on December 31, 2005. Congress has also required the Attorney General to submit semi-annual reports on the government’s activities under this section.
NEW FBI GUIDELINES ON DOMESTIC SPYING
On May 30, 2002, Attorney General John Ashcroft announced dramatic changes to the FBI guidelines on general crimes and criminal intelligence investigations. The new regulations allow the FBI to carry out surveillance on domestic religious, civic and political groups, even when there is no suspicion of wrong-doing. The Attorney General amended the regulations without any public debate or consultation with Congress.
The new guidelines overturn protections that were put in place in the mid-1970s. The FBI first implemented the prohibitions on domestic surveillance in 1976, after congressional probes revealed that the FBI and other intelligence agencies had been carrying out widespread surveillance on members of domestic organizations – most notoriously against anti-war protesters and civil rights activists, including Dr. Martin Luther King, Jr. The targets of these intelligence operations spanned a broad spectrum of groups, however, including the “Women’s Liberation Movement,” the John Birch Society, and the American Christian Action Council.
The congressional committee investigating these abuses released a report in 1976. The report decried the intelligence community’s widespread spying on American citizens, many of whom were targeted for their entirely lawful activities and beliefs. The committee explained:
The Government, operating primarily through secret informants, but also using other intrusive techniques such as wiretaps, microphone “bugs,” surreptitious mail opening, and break-ins has swept in vast amounts of information about the personal lives, views, and associations of American citizens.
The report also noted the “unsavory and vicious tactics” employed by the intelligence agencies, which included disrupting meetings and ostracizing people from their professions.
Under the Attorney General’s new guidelines, FBI agents may once again monitor and investigate lawful political and religious activities. FBI agents can now keep records of people who attend places of worship – mosques, synagogues, and churches – as well as those who attend meetings of non-governmental groups. To do this, they may covertly attend political or religious gatherings, surf internet sites, and mine commercial databases. Furthermore, they can do all of this without showing any reason to suspect any criminal activity.
Some of these activities, including Internet surfing and commercial data mining, were perfectly permissible under the old guidelines, so long as they were undertaken as part of a preliminary or an ongoing criminal investigation. Now such activities may be used in order to generate (rather than react to) suspicion of criminal conduct. In addition, there is no time limit on how long the information may be retained.
Widespread monitoring and reporting on the activities of domestic organizations may lead to a chilling effect on speech. Ultimately, the FBI could begin questioning, and even detaining individuals whose only “crime” has been the legitimate exercise of fundamental political freedoms. It was precisely this kind of abuse that led to the 1976 restrictions on domestic spying.
Indeed, such concerns were expressed by members of Congress on both sides of the aisle. Republican Representative James Sensenbrenner, the chair of the House Judiciary Committee, emphasized that the original FBI guidelines were put in place because of “documented excesses” by the FBI. He remarked, “I get very, very queasy when federal law enforcement is effectively...going back to the bad old days when the FBI was spying on people like Martin Luther King.” He also denounced the Attorney General’s decision not to seek congressional input, revealing that he had been informed of the changes only two hours before Ashcroft’s formal announcement. Meanwhile, Representative John Conyers, the ranking Democrat on the House Judiciary Committee, called the new guidelines “a step back for civil liberties in this country” and declared that the changes had “decimated the Fourth Amendment.” 
Operation TIPS (the Terrorism Information and Prevention System) is a new government initiative, officially described as “a national system for concerned workers to report suspicious activity.” Operation TIPS first broke into the news in mid-2002, when journalists came across the scheme on a Citizens Corps website. Operation TIPS sets out to recruit people whose everyday activities put them in daily contact with people in their homes and businesses, for example telephone repairmen, cable television installers, postal workers, delivery truck drivers, and workers for courier services.
In late July, the media reported that the government hoped to enlist one million volunteers within months to test the TIPS reporting system in a pilot program in ten cities. Eventually, the goal is to enlist 11 million civilians (or about four percent of the U.S. population) to report on the “suspicious activity” of others. Domestic and international news media compared the scheme, part of President Bush’s new Citizens Corps volunteerism program, to East Germany’s Stasi secret police network. In a July 17, 2002 editorial, the Boston Globe described Operation TIPS as “a scheme that Joseph Stalin would have appreciated,” and denounced the plan as a “vile” and “anti-American” idea. 
Members of Congress expressed similar sentiments. In a Senate Judiciary Committee hearing on July 25, 2002, Senator Patrick Leahy compared TIPS to a 1960s FBI informant program in which neighbors were hired to spy upon suspected political activists. As he told the Attorney General, who was appearing before the committee, “It was a very, very sorry time in our history.” At the same hearing, Republican Senator Orrin Hatch told the Attorney General, “We don’t want to see a 1984 Orwellian-type situation here, where neighbors are reporting on neighbors.”
On July 18, 2002, Republican Representative Dick Armey, the House Majority leader, took steps to ban Operation TIPS in the House legislation to create a Homeland Security Department. As the chair of the House Select Committee on Homeland Security, Armey added language to the bill to prevent the Justice Department from initiating Operation TIPS. In his summary of the bill, he explained that he had acted “[t]o ensure that no operation of the department can be construed to promote citizens spying on one another.”
The TIPS program has also been denounced by conservative activists. Phyllis Schlafly, the leader of the Eagle Forum, has said that the proposal would “institutionalize a federal system of informers.” The Rutherford Institute also panned the program, commenting:
What [Operation TIPS] means for the average citizen is that whatever you read, eat or do - in the privacy of your home or out in public - will now be suspect in the eyes of your cable repairman, postal carrier, meter man or others who, by way of the services they provide, will have access to your home. 
Despite widespread criticism, administration officials said only that the scheduled launch of the program would be postponed until after Congress returned from recess in September. In early September, the official website of the U.S. Citizens Corps continued to include a fact sheet on Operation TIPS, which makes no reference to congressional measures to stop the program. The website merely announces that “[t]he program is scheduled to be operational in the fall of 2002 as one of the new Citizen Corps programs.” Furthermore, it emerged in late August that the Justice Department is now considering a deal with a private company to operate the program, a move which would only deepen accountability concerns.
 United States Constitution, Amendment IV.
 United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976).
 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J. dissenting).
 See Public Law 107-56.
 See “President Signs Anti-Terrorism Bill,” White House Press Release, October 26, 2002, available at http://www.whitehouse.gov/news/releases/2001/10/20011026-5.html (accessed August 29, 2002).
 See Wilson v. Arkansas, 514 U.S. 927 (1995) (confirming that the knock and announce rule forms part of the Fourth Amendment’s reasonableness inquiry).
 See Richards v. Wisconsin, 520 U.S. 385 (1997).
 See 50 U.S.C. § 1801-1811, 1821-1829, 1841-1846, 1861-1862. Under 50 U.S.C. §
1801(e)(1), foreign intelligence information is information that relates to the United States’ ability to protect against: (1) possible hostile acts of a foreign power or an agent of a foreign power; (2) sabotage or terrorism by a foreign power or agent; and (3) clandestine intelligence activities by a foreign power or agent.
 See 50 U.S.C. § 1805(d)(1).
 For a discussion of the FBI’s powers under FISA, see In Re All Matters Submitted to the Foreign Intelligence Surveillance Court, U.S. Foreign Intelligence Surveillance Court, May 17, 2002, pp. 9-11.
 See In Re All Matters Submitted to the Foreign Intelligence Surveillance Court, U.S. Foreign Intelligence Surveillance Court, May 17, 2002.
 Before the enactment of the USA PATRIOT Act, FISC was composed of seven judges. In amending FISA, however, Section 208 of the USA PATRIOT Act calls for the designation of 11 judges. At the time the decision was issued, the following federal judges sat on the court: (1) Honorable Royce C. Lamberth; (2) Honorable William H. Stafford, Jr.; (3) Honorable Stanley S. Brotman; (4) Honorable Harold A. Baker; (5) Honorable Michael J. Davis; (6) Honorable Claude M. Hilton; and (7) Honorable Nathaniel M. Gorton.
 See Electronic Frontier Foundation, “EFF Analysis of the USA PATRIOT Act,” October 31, 2001, p. 8.
 In Re All Matters Submitted to the Foreign Intelligence Surveillance Court, p. 22.
 Ibid., p. 27.
 See American Library Association, “The USA PATRIOT ACT in the Library,” available at http://www.ala.org/alaorg/oif/usapatriotlibrary.html (accessed September 3, 2002).
 See Bob Egelko, “FBI Checking Out Americans’ Reading Habits; Bookstores, Libraries Can't Do Much to Fend Off Search Warrants,” San Francisco Chronicle, June 23, 2002.
 See “FBI Checks Out Library Records of Terrorist Suspects,” USA Today, June 25, 2002.
 These are officially known as the Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations.
 See S. REP. No. 94-755 (1976), p. 7.
 Ibid., p. 5.
 See The Electronic Privacy Information Center (EPIC), “The Attorney General's Guidelines,” available at http://www.epic.org/privacy/fbi/ (accessed August 26, 2002).
 See Jerry Berman and James X. Dempsey, Center for Democracy and Technology, “CDT’s Guide to the FBI Guidelines: Impact on Civil Liberties and Security—The Need for Congressional Oversight,” June 26, 2002, available at http://www.cdt.org/wiretap/020626guidelines.shtml (accessed July 25, 2002).
“Key Republican Blasts New FBI Guidelines,” CNN.com, June 1, 2002, available at http://www.cnn.com/2002/ALLPOLITICS/06/01/fbi.guidelines/ (accessed August 25, 2002).
 This is the official description given on the Citizens Corps Website, available at http://www.citizencorps.gov/tips.html (accessed September 3, 2002).
 Commentary, “Tipping off the Government,” Christian Science Monitor, July 25, 2002. See also Gene Healy, “Volunteer Voyeurs?,” available at http://www.cato.org/dailys/07-29-02.html (accessed August 20, 2002).
 Editorial, “Ashcroft vs. Americans,” Boston Globe, July 17, 2002.
 Cassio Furtado, “Controversial Operation TIPS Appears Dead,” Knight Ridder Newspapers, July 27, 2002.
 Dan Eggan, “Ashcroft: TIPS Plan Won’t Have Central Database,” Washington Post, July 26, 2002.
 Ellen Sorokin, “Security Bill Loses ID Card, TIPS,” Washington Times, July 19, 2002.
 Karen Branch Brioso, “Justice Department Forges Ahead with TIPS Despite Armey Ban,” St. Louis Post Dispatch, July 21, 2002.
 David Westphal, “Civil Liberties Concerns Growing as Congress Considers Homeland Security,” McClatchy Newspapers, August 5, 2002.
 John W. Whitehead, “Is Operation TIPS Part of a Program to Defend our Homeland or Destroy It?,” Rutherford Institute, July 17, 2002, available at http://22.214.171.124/news/commentary.asp#TIPS (accessed September 10, 2002).
 “Operation TIPS Being Modified Following Criticism from Civil Liberties Groups,” Foxnews, August 10, 2002, available at http://www.foxnews.com/story/0,2933,60082,00.html (accessed August 29, 2002).
 Citizen Corps, “Operation TIPS Fact Sheet,” available at http://www.citizencorps.gov/tips.html (accessed September 4, 2002).
 Dave Lindorff, “New Life-line for Operation TIPS,” Salon, August 30, 2002.
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