By: Paul Dewitt Goree
Phoenix, AZ. 2/13/2013
Currently our nation is at a turning point, by which a new wave of political actions are manifested. These new thoughts and actions, have resulted in legislation, which from a distant perspective, seem to rattle the very existence of the Constitution and Bill of Rights.
Though out our history Americans have accepted surveillance as a means of national protection. That acceptance was usually based on global foreign affairs, by which government intelligent agencies, worked behind the scene to assure American values and freedoms.
This changed during the 70’s, when agencies were prohibited to surveillance American citizens without a court issued warrant (Fiorina et al, 2011). Yet with the emergence of terrorism within our nation, executive order from the Bush Administration provided justification to surveillance citizens and foreigners alike (Fiorina et al, 2011).
From a time line the events of surveillance has tethered within our nation. Beginning with October 2001 (after 9/11) President George Bush signed the Patriot Act. In 2005 efforts were taken to compile major telephone companies databases to be used to reveal terrorist communication patterns (2011). In 2007 the president signed, a Congress approved act-that permitted warrant less surveillance. By 2010 this act was dismissed, seeming that it unjustly intruded into American citizens lives. However in 2011, President Obama signed an extension of the Patriot Act, which is renewable 2015 (Washington Post, 2011).
Even with this precise time line, debate lingers over government surveillance and its possible consequences on civil liberties. It is believed that legal walls that once separated surveillance and criminal investigation, now have allowed for government intrusion into our private lives (Samaha, 2011). In Criminal Procedure In War Time, the term ‘sneak and peek warrants’ are detailed the new functioning of warrants for search and seizure. The ‘sneak and peek warrant’ allows officers entry into private dwellings without the owners consent. It allows for the seizure of intangible evidence. And upon leaving officers are not required to leave a copy of the warrant upon the door (2011).
Some other interesting factors of the Patriot Act and its Extension, is that it allows law enforcement to share grand jury’s without a court order. It allows for cross data references. Whereby an innocent citizen can be intrudes upon due to mere association of a criminal (Zagaroli, 2003).
To better understand these changes that alter the presumption of an innocent citizen. It is important to examine the Constitution and Bill of Rights in regards to ‘civil liberties’ and ‘civil rights’.
Civil liberties “promise freedom from government interference. Civil rights, guarantee equal treatment by the government” (Fiorina et al, 2011). Our civil liberties are the basis of our American heritage. Civil liberties do not apply to state.
Two civil liberties to examine as they have come to result in policy change: are the First Amendment and Fifth Amendment.
The First Amendment states that “Congress shall make no law restricting speech or religious freedom”. Free expression grants speakers and writers the assurance that their will not be censored (Fishing St al, 2011). Free expression provides an individual the right to express desired conditions. To express frustration with officile and policies. It is with free expression that positive social norms are conditioned for survival, whereas negative ones are deemed bad and frown upon. John Stuart Mills is the defender of free speech and civil liberties.
Marvin Ammori provides a vivid example of how the First Amendment is being challenged with current legislation. Ammori affirms that the Copyright Bills: Project IP Act and S.O.P.A, violate the First Amendment. Ammori states “the bill does not attend to contribution infringement sites. Instead the bill extends and enables infringement.”. If enacted both bills would protect written and spoken speech on websites like Facebook and Twitter. These bills will restrict by maneuvering Judicial orders on written and spoken speech: thus establishing censorship in the land of the free.
From a boarder perspective, written and spoken speech is already restricted in many ways. Our government may not imply freedom of speech/expression. But that freedom is strictly regulated in regards to “time, place and manner ” (Fiorina et al, 2011). Another area regulated by the government is commercial, libel and obscenity. The regulations on these prevent distribution of false information and promotes helpful community informations.
Privacy is a legal concept, implying the desire to be left alone (Fiorina et al, 2011). With todays ever expanding social networks, the concept of privacy may seem antiquated. We allow ourselves to be profiled on websites like Facebook, detail all our personal history and then linking friends and associates. Even in our infrustructured society, we allow police officers to search our information nation wide, to gather a secure place of ourselves. Today we are consumed with data based entries, that statistically position us, depending on the motive.
These data bases have also elude to an increase in identity theft, fraud and terroristic activities. Prior to Eisensradt v. Baird (1972), it seemed impossible for the government to regulate privacy. But with that court decision Justice Brennan constructed the “right to be left alone” clause, which prevented the government from exposing personal information (Fiorina et al, 2011).
The Privacy Act of 1974 has been updated since 9/11 to include issues of terrorist and identity fraud. All computers have an IP address, which identifies that particle unit and thus allows it to function. The IP address has no personal information, but still is vulnerable. The ISP knows your IP address information and is active in online transactions. Many ISP’s do not disclose their data. However many do, leaving security up to firewalls and virus protection software (Privacy Act Clearing House, 2012).
As identity theft and fraudulent internet transactions increase. A demand from bankers, insurance companies and citizens will petition policy makers to enact harsher codes of privacy. However by doing this, society cages itself with policies that restrict expression as it protects privacy.
Protecting privacy becomes another issue, when enforcement maneuvers are utilized to apprehend suspects. Under these conditions, Due Process Rights are violated. It interesting to detail varying aspects of the First Amendment and the Fifth Amendment which may come into conflict with legal enforcement.
With the advancement of “sneak and peek warrants”, enforcement would be able to effectively secure arrest. However these arrest would be based on evidence obtained, in what is now an illegal manner.
For example, would it be appropriate for a enforcement agent to utilize a 3rd party work for hire, to assist him in the resolution of a crime. With current Patriot Act Law, this would be possible. However the method by which the enforcement agent and 3rd party assistant used to apprehend, might violate other due process laws. For example, entrapment laws. Entrapment is when a person is induced ti commit an offense that they would have other wise not done. There exist two test for entrapment. Subjective Test, by which the suspect had no disposition. And Objective Test, where by enforcement induced a person to commit an offense.
Considering the Patriot Act, some gray areas might exist in regards to 3rd party surveillance or blind association and use of permission for information available and not available to public.
However such cases are won, for example State v. Russell (411 US. 423 (1973)) and Hampton v. United States (425 US. 484 (1976)) these cases resulted in monetary damages for the suspects.
Privacy of Expression is evolving within our legal and cultural society. It seems impossible that enforcement would befriend a suspect for numerous years, only to induce him into illegal activities, by which he would not have responded. They could attempt to state his mental intentions suggested so, but still the fact that they befriend a suspect for numerous years is foul.
Fiorina P. Morris, Peterson, Paul, Bertram Johnson and Mayer William. (2011). America New Democracy.Penguin Academics
F.B.I.(2011) Avoiding Entrapment. Criminal Justice. Retrieved from Cape.DCM.com
Patriot Act. (2001-2011). Public Law 107-56. Department of Justice.
SAMAHA.(2001). Constitution Crisis. Retrieved from http://www.soci.umn.edu
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