Abstract

George Orwell’s novel, Nineteen Eighty-Four, is a well written prophecy of the future that gives a chilling, daunting and startling account into the future of the world. The writer predicts a time when government will have so many powers over its people taking away the rights and freedoms that are enshrined by the constitution. In the novel the writer highlights very sophisticated means of surveillance that the government uses to monitor the activities of its citizens. He foresees a situation where the people are so brainwashed and follow the policies of the government without questioning them. Today the legislators have created laws that in application contravene the rights of the public. These laws have made the prophecy in Nineteen Eighty-Four to become a reality. The surveillance methods employed in the novel Nineteen Eighty-Four are similar to the provisions of the Patriot Act.  After the attacks of 9\11 on the World Trade Centers in New York, the United States Government instituted the Patriot Act to increase security and prevent further devastations. The fourth Amendment to the constitution protects an individual from illegal search and seizure without a warrant or probable cause, but the Patriot Act now circumvents this. As technology advances so do surveillance methods.

Introduction

The events of September 11th, 2001, catapulted congress and Bush administration into enacting a law that went against civil liberties of the people and constitutional principles of the country. It was a law meant for better security and protection of people but it called upon sacrifice of some civil liberties of the citizens. The enactment of the U.S.A Patriot’s Act, which is an acronym for an Act of Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, created a world where the citizenry of a country could no longer be free to associate, interact or transact their businesses in the privacy of their own confines. The Act was passed in October 26, 2001, as a response to terrorist attack on the World Trade Centre and the Pentagon. It is usually argued that the flaws found in the Act are as a result of the short time taken between its drafting, introduction of the first draft and the passage into law, as it was done in a period of five weeks. This Act flew in the face of democratic principles that have laid the foundation of every American law. The fact that the enacted law required citizens to give up their civil liberties to get protection from the government, made the law to be against the principles of the constitution (Bryan 2007). This is simply because, as said Benjamin Franklin stated,they that give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety”.

Privacy is a term that lacks precise definition as a legal concept. It encompasses many aspects which attract different definitions and meanings that may bring difficulty in interpretation and application. It has been taken to mostly encompass around four branches of protected interests which include: security against unreasonable and unwarranted intrusion upon one’s privacy, from misuse of one’s name or likeness, from unreasonable exposure given to one’s private life, and from publicity which unreasonably puts one in a phony light before the public. The constitution has no direct provision on privacy and thus the issue of privacy is treated as a bundle of amorphous rights. These amorphous rights are taken to include physical rights – a property right in one’s home and possessions, a decisional right – control over information about oneself, and formational right – construction of the self. This makes it easier to understand the privacy than when taken as a single clearly defined principle.

The courts have heard cases on privacy, different aspects of privacy and their rulings have tended the right to privacy. In the Supreme court in the case of Griswald v Connecticut (381 U.S. 479855.Ct. 1678, 14L Ed. 2d 510. 1965 US), the court affirmed the right to privacy and specifically, the right to marital privacy, as belonging within the penumbra of the Bill of Rights. The court recognized it as an essential right and austere inquiry is the standard of judicial review.

Other elements of privacy have been addressed by courts in different cases drawing definitional elements of privacy. For instance, in the case of Time, Inc. v. Hill (385 U.S 374, 875 (t. 534, 17l. Ed. 2d 456, 1967 U.S),the court addressed the issue of governmental interests in protecting privacy, while at the time interposing the interests of free expression in the balance. In the case, the Time dispensation was held to exclude upturn under a state privacy statute that allowed recovery for injury caused by disclosure to public awareness in any publication which contained factual inaccuracies.

The fourth amendment to the US constitution specifically protects the citizens’ right to privacy. It affirms that the right of people to be cosseted in their persons, houses, papers and effects, against irrational searches and seizures shall not be violated. It provides that searches on the citizens will only be carried upon the establishment of a feasible cause, supported by oath or declaration, particularly describing the situation to be searched, and the persons or things to be seized. The provision of the Patriots Act violates the fourth amendment to the constitution in regards to the recognition of privacy as a civil liberty that cannot and should not be sacrificed in pursuit of security and protection of American citizens. The Act, by allowing surveillance on the citizens without probable cause, infringes the fundamental tenets that govern free and self-governing society that believes in the liberty of expression, association and individual autonomy.

Indeed, the Act brings to reality the prophecies made by George Orwell in Nineteen Eighty-Four, as to the extent of surveillance that the government will subject its citizens. This came out best in the case of Brandon Mayfield et al v United States of America (No. 09-1561). Mr. Mayfield was a former army officer, who had been honorably discharged from the service and was now a practicing lawyer. Prior to his arrest, he had no prior unlawful verification and was a family man and committed Muslim. After the attack in Madrid, Spain, the FBI relying on a sample of finger prints believed to be of the perpetrator of the crime started monitoring Mr. Mayfield and his family. The FBI carried out surveillance on the family from the year 2004 and they followed them around to work place, school and even at the mosque where Mr. Mayfield used to worship. He was later arrested and detained for two weeks with no charges being instituted against him. He was later released after the FBI was informed that finger prints did not belong to Mr. Mayfield but rather belonged to Algerian citizen by the name of Ouhane Daoud. The case clearly highlights the power that security agencies have been given by the Act, having the ability to monitor, and even detain citizens without a probable cause. This infringes on the rights of the citizens as affirmed by the fourth amendment to the constitution of the United States.

The Patriot Act’s enactment into law attracted rage and dissent from the public as its provision violated the fundamental principles of free and democratic society. This dissent was affirmed by the courts in the case of United States v United States District Court for the Eastern District of Michigan, (407 US. 297, 314, and 1972), where the court stated as follows: “The cost of lawful public balk must not be trepidation of subjection to an unrestrained surveillance authority. Nor must the trepidation of unauthorized official eavesdropping dissuade vigorous citizen action in private dissent, no less than open public discourse, is essential to our free society”.

Surveillance and the Patriot’s Act

Surveillance, in the context of this paper, refers to the law enforcement methods of collecting information of individuals in the country. The methods employed by law enforcement agencies include: human and technological monitoring, where the police keep an eye on the physical activities of persons under surveillance, it involves gathering of biographical, biometric or transactional data on individuals which is accumulated from personal communications, electronic transactions and identifiers’ records or other documents. Therefore, in the context of police and other law enforcement agencies, surveillance refers to the collective action of official gathering of information on the purpose for the stated purpose of preventing crime or terrorism by prosecution of offenders. It is, therefore, justified as a preventive method made for the fight against crime before it can occur.

Under the Patriot Act, police surveillance is subject to certain guidelines that govern criminal investigations, gathering of evidence or criminal prosecution. Under this law, then, there are three aspects of official intrusion into the privacy of citizens. These aspects are: surveillance, search and seizure. Surveillance is gathering of investigative observations or data; searching refers to the prying into private activities or belongings to find out incriminating evidence, while seizing is taking of items to be used in criminal investigations or prosecutions. Formation of the Patriot Act was justified on the perceived threats of increased criminal activities, drugs and terrorism for expanding governmental controls and infringement of privacy rights. According to Whitaker, “There has been an increased repetition in the historical cycle where aggressive bullying leads to the expansion of capricious and intrusive powers of government. Yet again, the constitutional safeguard of rights is being dismissed, sometimes from the highest office on the land, as an inconvenient impediment to safety”.

Under the Patriots Act, the United States police and other law enforcement agencies have far reaching, legal and procedural latitudes to carry out a wide variety of surveillance behaviors involving criminal and terrorist offset actions and investigations. The expansion of these inspection powers can be attributed to a myriad of factors which have characterized the modern society in which we live today. These factors, when combined with increased terrorist activities and, particularly, the terrorist acts of 9/11 have made law enforcement agencies acquire unprecedented surveillance, search and seizure authority that ultimately infringes on the Bill of Rights and the Fourth Amendment as well as civil liberties of the country (Paul 2010). Some of the main factors that have made the police to have increased powers of surveillance, search and seizure, include:

The Impact of Globalization

Globalization has really moved the world top different dimension that the founding fathers of the country could not even have thought of in their wildest imaginations. Today the world is a literal global village, characterized by simplicity of the movement due to increased, speedy and non-expensive air, rail and water transport. Countries cannot longer rely on the border lines as entry into and exit any country has been made possible due to increased trade activities and multinational transactions. The impact of globalization in the country has brought with it both positives and negatives in almost equal measure. Perhaps, negative aspect relevant for this analysis is the increased movement of criminals across different border lines thereby making it almost impossible for law enforcement agencies to guarantee security, investigate crimes and consequently apprehend criminals. Such criminals are well adapt in the use of technology to perpetrate transnational illegal acts such as terrorism, drug trafficking, human trafficking and organized crime (Peter 1971, pg. 127-135).

Advances in Technology

Above all else, the greatest impact of any of the factors on security has been the growth in the technological world. Technological advances have contributed significantly to the capability of the police to employ electronic surveillance against citizens. The police have adopted the use of electronic technology so as to enable them to be more efficient in pursuing mysterious criminals on an international scale. Courts have also affirmed that the police could use technology to detect criminal activity in as far as it did infringe the Fourth Amendment. This was held in the case of United States of America v Melvin Skinner (case NO. 09-6497). In this case the court stated that criminals cannot complain when the police take advantage of the inherent characteristics of technological devices that the criminals use so as to catch them. The police used data from Melvin Skinner’s pay-as-you-go cell phone to determine his real-time location. The information derived from this phone was used to track Skinner’s location as he was transporting drugs along the public road between Arizona and Tennessee. The court did not accept Skinner’s motion to suppress all evidence that was gathered as a result of the search of his vehicle upon his arrest. In so doing, the court confirmed that there was no contravention of the fourth amendment because Skinner did not have rational expectation of privacy in the information given off by his willingly acquired pay-as-you-go cell phone. The rationale of the ruling was that the law cannot be construed to be that a criminal is permitted to rely on the expected intractability of his apparatus or otherwise, dogs would not be used to trail an escapee if the escapee did not know that the dog pesters had his scent. In the ruling, the court started, “we do not mean to imply that there was no realistic expectation of privacy because Skinner’s phone was used in the perpetration of a crime, or that the cell phone was unlawfully possessed. On the contrary, an innocent actor would lack a reasonable expectation of privacy in the natural external locatability of a tool that he or she bought”. The advances in technology have therefore increased the complexity with which criminals commit crimes thereby creating a ground for law enforcement agencies to do whatever it takes to be able to detect, prevent and apprehend criminals before committing criminal activities (Amitai 1999 pg 130-170). It is on the backdrop of these challenges that the Patriot Act is enacted so as to ensure safety for American citizens. However, despite the nobility with which the Act may have been enacted, its provisions remain increasingly vulnerable when in the wrong hands of government officials (Mervyn, 1974, pg. 80-103).

The Patriot Act and the Constitution

The United States Supreme Court established the existence of privacy in a number of the constitutional Amendments. This was held in the case of Griswarld v Connecticut, where the court held that the right to privacy exists in the constitution as established by the constitutional amendments. Indeed, upon further examination of the Constitutional Amendments to the American constitution, the right to privacy is established in most of the amendments which incorporate different elements of privacy. The First Amendment prohibits the government from interfering with the citizens’ right to freely express their ideas and protects the right of the citizens to practice the religion of their choice. The Third Amendment guarantees protection of citizens in their homes and prevents the government from prohibiting or interfering in something that citizens do in the privacy of their homes. The Fourth Amendment guarantees protection of individuals in their persons, homes, documents, against unfair searches and arrests without the issuance of a warrant and the establishment of a probable cause (Kevin, 2005, pg. 75-110). The Fifth Amendment offers citizens the right to privacy by not forcing them to possibly incriminate themselves through interrogations. The Ninth, Tenth, Thirteenth and Fifteenth amendments also provide for the right to privacy.

Therefore, privacy rights are an integral part of the relationship between citizens and their government. In the history of the country, courts have consistently affirmed privacy of the citizens against interference by the government. The instance is the court privacy doctrine of 1928, which was used up until the late 1960s. This was in the case of Olmstead v United States, where the court recognized that electronic eavesdropping by the police infringed on the privacy rights of citizens. The doctrine that the court developed was that privacy protected the place rather than the person. This doctrine was applied until 1967, where in the case Katz v United States 1967,the Supreme Court established the doctrine of expectation of privacy. The court stated that citizens who exhibit logical and subjective expectation of privacy were protected from government incursion. It was this doctrine that created a privacy standard and has continued to be the established legal dogma in determining individual privacy protection from police surveillance (Michael, 2003, pg. 118-125).

Based on the constitutional amendments, the Patriots Act breaks these central tenets that are defined by the American state. There are clear sections that indeed violate the constitutional provision of the right to privacy. These sections include: Title II of the Patriot Act, section 201, provides for the authority to intercept wire, oral and electronic communications relating to terrorism. This provision goes directly against constitutional provision of the freedom of expression and infringes on privacy of the citizens. The Act, conveniently perhaps, fails to define terrorism and does confine the extent to which authorities can intercept communications of the citizens, thereby creating a situation where authorities are given the prerogative to decide who a terrorist is, what constitutes a terrorist activity and how far they can go when searching for evidence. This greatly infringes on the privacy rights of the citizen as provided for by the Fourth Amendment. In the case of Katz v United States, Justice Harlan stated that the Fourth Amendment is not attached to the place but rather to the person and thus, wiretapping was an infringement of the right to privacy as the government was monitoring the communication, therefore going against the individual’s right to privacy (Michael, 2001, pg. 57-95).

Section 215 provides for admittance to records and other items under the Foreign Intelligence Surveillance Act. It therefore, allows the state to acquire any list of names of people and search for such information including library rentals, medical, church or mosque documents, and video rentals without consulting the person in question or even seeking his or her consent. The provision thus, inhibits citizens from exercising their liberty to read any material for fear of prosecution. Section 213 of the Act provides for the authority to delay notice of the execution of a warrant. The purpose of this provision is that it is meant to allow state officials to carry out searches on the private property without notice to the proprietor of the property. It consequently means that state officials can carry out searches on the private property in absence of the owner of the property and without his or her awareness. It consequently violates the common law principles and greatly infringes on the provisions of the constitution.

In conclusion, the founding principles of the United States are governed by the United States Constitution. These rights were written to protect people from oppression. In front of the Supreme Court there is a statue of “Lady Justice”. This is a blindfolded female figure that carries a double-edged sword in one hand, and a two-sided scale in the other hand. She is the personification of truth and justice. In her hands she weighs the fate of a person. Her sword signifies the authority and swiftness of her decision. The Patriot Act pulls the blindfold off and unbalances her scale. The Patriot Act does increase security in the same way as lobotomy cures mental illness.

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