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Privacy Rights in the Digital Age

USA PATRIOT Act, Pub. L. No. 107–52

by Charles E. MacLean

A statute expanding the powers of law enforcement to detect and intercept terrorists' communications, enacted by Congress and signed into law by President George W. Bush on October 26, 2001, in the wake of the terror attacks on the World Trade Center Twin Towers and the Pentagon on September 11, 2001. The acronym USA PATRIOT is short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.

The act provided American law enforcement with unprecedented peacetime surveillance and law enforcement powers in an effort to prevent subsequent attacks. In summary, the act, among other things:

allowed the government to search and seize, without notice to the citizen and without a warrant or probable cause, that citizen's financial, travel, and medical records, and Internet activity that are held by third parties such as Internet service providers, banks, and airlines.
authorized law enforcement to conduct sneak-and-peek searches and wiretaps without any requirement that it be conducted to combat terrorism and without notifying (at least without promptly notifying) the owner or possessor of the area searched.
allowed law enforcement to collect trap-trace or pen-register data related to telephone calls and Internet activity; these data capture the general description of telephone calls, such as numbers dialed and durations of calls, or Internet URLs, allegedly without capturing the voice content of the calls or the actual content of the visited websites.
allowed law enforcement to collect, without a particularized warrant, the telephone usage and Internet browsing history of millions of Americans. Subsequent extension of the PATRIOT Act enabled creation of the National Security Agency's (NSA's) bulk telephone metadata collection program.

Some saw the PATRIOT Act as an essential tool for fighting terrorism. Others saw the act as a nonessential tool, ineffective with regard to terrorism but effective with regard to violating constitutional rights. Many commentators claimed that not a single terror attack was thwarted by the PATRIOT Act or its investigative and surveillance tools. If that is true, Americans suffered immense loss of privacy for no national security gain.

It is critical that we all appreciate the pressures that drove Congress to pass the PATRIOT Act and that drive federal law enforcement agencies to protect us from foreign and domestic terrorists even at the expense of some civil liberties. If there were to be another 9/11-style attack on American soil, there would be months of recriminations and congressional hearings to identify those federal officials who should be held accountable. Similarly, if the federal officials cut some constitutional privacy corners to make us all safer, there may be recriminations and hearings, but ideally those extra surveillance powers would have prevented the next attack. Those pressures are real and substantial, and more than that, they are understandable.

Those pressures, or similar ones, will strike again in the future, and decision makers, courts, Congress, and law enforcement will be tempted to go once again go the way of secret courts and unconstitutional surveillance. That is not a condemnation of the government or its officials; it is recognition that government is a human system, fraught with errors, biases, and all infirmities that plague humankind. The PATRIOT Act was certainly not the first such instance of the loss of civil liberties in U.S. history.

The war on terror was not a declared war, but 9/11 was certainly seen as a warlike act, and Congress responded within two months with the PATRIOT Act. The creation of the PATRIOT Act immediately after 9/11 is reminiscent of other overreaches and overreactions by Congress in time of war or when Congress legislates as if the country were at war. Several examples include:

The Alien and Sedition Acts of 1798 outlawing anti-American speeches and authorizing mass deportations as America nearly went to war with France.
During the Civil War, President Lincoln declared martial law and suspended writs of habeas corpus.
During World War I, hundreds were convicted under the Espionage and Sedition Acts, which outlawed speech and writings criticizing the U.S. government; in Schenck v. United States, the Supreme Court upheld convictions for distributing antiwar leaflets, although the Court acknowledged that such behavior would not be criminal had America not been at war.
In World War II, Congress authorized the internment of Japanese Americans and curfews for German Americans and Italian Americans for the duration of the war. Reparations of $20,000 per World War II Japanese American internee were not paid until 1988 and thereafter.

Countries, including the United States, often restrict human rights and protections in wartime. The PATRIOT Act could be seen as just the latest example. Indeed, governments have not always waited for wartime or international threats to justify curtailment of civil rights. Nor has law enforcement always scrupulously used special investigative and surveillance powers only for the purposes for which they were initially permitted.

The PATRIOT Act empowered law enforcement not just to combat terrorism during the putative war on terror, but it did far more than that by expanding law enforcement powers to investigate all types of crimes without the warrant and particularized probable cause guarantees explicit in the Fourth Amendment to the U.S. Constitution. The Constitution is best viewed as the governance contract between the people and their government. If that contract is to be changed, it must be changed by the amendment procedures within its text. And that contract is to be amended only with the consent or ratification of the people. Legislating loopholes in constitutional protections, as the Congress did by creating the PATRIOT Act, is itself an unconstitutional act.

Fortunately, cooler heads have prevailed, and in June 2015, in response to Edward Snowden's 2013 leaks regarding the NSA bulk telephony collection program, President Obama signed into law the USA FREEDOM Act, Congress's hard-fought replacement for the USA PATRIOT Act. The USA FREEDOM Act (acronym for Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015) is expected to scale back and delimit, but not completely terminate, the NSA bulk phone records program and allow other features of the PATRIOT Act to expire. Many believe it will ultimately result in the destruction of NSA's vast database of American's telephone calls but will transfer the responsibility for storing future call records to the telephone companies themselves. The USA FREEDOM Act appears to be Congress's attempt to right its previous wrong and return to the spirit if not the letter of the Constitution and its Fourth Amendment.

Perhaps the most important and lasting lesson from the USA PATRIOT Act experience is that the government, even in meeting its awesome responsibilities related to national security, must honor the dictates of the Constitution, at least with regard to the privacy rights of U.S. citizens and residents. The Constitution was designed to grant limited powers, such as national defense, interstate commerce, and the like, to the federal government in exchange for detailed and specific limits on the powers of that federal government.

The process of being on guard is a shared responsibility. Government officials must ensure that they are acting within those constitutionally enumerated powers, and must ensure that they are protecting those constitutionally enumerated rights. Conversely, citizens and residents must be vigilant to ensure that the Constitution, the people's contract with its government, is honored at all times. The violation of any of our civil rights are viewed most accurately as the violation of all of our civil rights. It is far too easy to ignore violations of others' rights because “at least it didn't happen to me” or “that would never happen to me.” However, governmental power can serve as a one-way ratchet. Power once exercised at the expense of the constitutional rights of others is very difficult to rein in again. Thus, the battle for privacy in the digital age, and the battle to protect individual privacy from congressional, executive, or even judicial overreach is one we all must wage in real time. As Supreme Court Associate Justice Antonin Scalia told University of Hawaii law students in 2014, “Well, of course, [the Supreme Court's opinion in] Korematsu [v. United States, affirming the constitutionality of wartime internment of Japanese-Americans] was wrong … But you are kidding yourself if you think the same thing will not happen again.” As Justice Scalia notes, wartime leads to many erosions of civil liberties—that is a given—so we must all stay on guard to protect against it no matter what its guise next time.

Citation Types

Type

Format

MLA 9th

MacLean, Charles E. "USA PATRIOT Act, Pub. L. No. 107–52." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0221.

APA 7th

MacLean, C. E. (2016). USA PATRIOT Act, Pub. L. No. 107–52. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.

CMOS 17th

MacLean, Charles E. "USA PATRIOT Act, Pub. L. No. 107–52." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed September 17, 2025. online.salempress.com.

Table of Contents

Privacy Rights in the Digital Age

USA PATRIOT Act, Pub. L. No. 107–52

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