RIGHT TO PRIVACY V. NATIONAL SECURITY

RIGHT TO PRIVACY V. NATIONAL SECURITY 

Name of Author: Akash Thomas Jose
3rd year,
 School of Law, CHRIST (Deemed to be University)
ABSTRACT
The privilege to protection of private information versus the national security has been a point of contention for a long period of time now. The privilege of privacy is characterized as the ability to hold one’s own data and keeping it private in nature. The research inquiries into reality where there is an actual trade-off between the ideal of private data protection in wake of national security.
During the course of this research, the research will try to define as to what exactly is the term privacy and security and how exactly is there a trade-off between the two. Whether privacy can be given up in wake of national security or whether a person should have the right to privacy for the functioning of a healthy democracy. After, the terrorist operation on September eleventh 2001, the US government enforced different measures with a specific end goal to mitigate another terrorist activity of such a magnitude. A technique utilized to battle this issue was with the passing of the USA PATRIOTS ACT by the parliament, diminishing the privilege to security. This research will focus on how exactly decreasing the privilege to personal information helps in decreasing the terrorist activities and hence the research will scrutinize the various legislation introduced in a few countries laying special emphasis on USA for combating terrorism and external threats. The question is whether infringing privacy actually helps to improve national security or whether it deteriorates the current position of national security as the information of the citizens can be misused for many reasons. The research will be based on an analysis of the legislations passed in order to conduct surveillance activities and also scrutinize whether it improves national security or deteriorate it. The research will involve an analysis on situations where private data of individuals have been misused. The research will conclude by establishing as to whether right to privacy can be infringed for protecting a country from external threats, and to what extent it is justifies. The scope of my research is restricted to USA in particular.
Keywords – privacy, national security, data protection
INTRODUCTION
US PATRIOT Act, is an act of the Congress which the then President George W. Bush had signed and came into force on 26th October 2001. With the passage of the US PATRIOT Act there was mass wide dissent by many of the privacy advocates as they believed that US PATRIOT Act in various provisions has infringed the right to privacy of individuals. The US PATRIOT Act was passed after the terrorist operation of 9/11 which was an event of large magnitude. The advocates in support of the enactment state that such an enactment would help to curb the terrorist activities and in turn help improving the national security. Questions have also arose regarding the various methods by which sometimes the powers conferred onto the officials by the US PATRIOT Act have a tendency to breach.
The following research paper looks into the various arguments of whether the right to privacy is actually being infringed by the enactment and also the concept of privacy and national security.
1) Interpretation of the term privacy
In contemporary discourse, privacy has become associated with “freedom of thought, control over one’s body, solitude in one’s home, control over personal information, freedom from surveillance, protection of one’s reputation, and protection from searches and interrogations,” among other things . Solove, an internationally acclaimed privacy expert finds that at least six different understandings of privacy have emerged: (1) “the right to be let alone,” (2) “limited access to the self,” (3) “secrecy,” (4) “control over personal information,” (5) “personhood,” or “the protection of one’s personality, individuality, and dignity,” and (6) “intimacy,” or “control over one’s intimate relationships or aspects of life”. A few scholars have viewed the interests that the law secures under the rubric of privacy and have presumed that they are distinct unrelated. The difficulty in articulating what privacy is and its importance has often made privacy law ineffective and blind to the larger purposes for which it must serve. Judicial opinions and statutes often depend upon some notion of the definition and value of privacy. Fourth Amendment law looks to whether a person has a “reasonable expectation of privacy” . Privacy is about power  .
The very thought of right to privacy has developed into a few distinctive dogmatic concerns such as intrusion, information privacy and autonomy. In particular, the right to privacy with regard to intrusion and information are of great concern with the advent of new technology . There have been tests developed to measure the subjective and objective factors relating to privacy in Katz v. United States  . In the main prong of the test, it tested whether if the individual more likely than not showed a genuine or rather a subjective desire of security. The second prong of the test surveys whether that desire is one that society is set up to perceive as sensible or not. 
A great number of people bolster a privilege to protection. Philosophers have given various contentions that legitimize a privilege to security in spite of the fact that there are sure circumstances where many would concur that protection rights should be yielded so as to respect different rights or for benefit of the overall population. There was a general worry about furnishing government or other institutional specialists with a lot of data that infringed the privacy of the masses and also with government snooping in order to obtain private data.
Notwithstanding the estimation of security to the improvement of a self-ruling self-idea, we perceive that the privilege to protection isn’t an absolute right.
2) Interpretation of the term National Security
The population of a country in general looks for a quiet, serene, ordered, peaceful and threat free environment characterized as per their own advantages and interests. To accomplish the same, there is the need of the hour to identify all threats and dangers to sort the world order according to what they want.
As the extent of the domestic surveillance operations emerged, US Congress attempted to scale back
the Executive’s power while leaving some flexibility to address national security threats . The legislature focused on the targets of surveillance, limiting a new law to foreign powers, and agents of foreign powers – which included groups “engaged in international terrorism or activities in preparation thereof  .
Terrorism specifically, relies on secretive operations – conspiring that may effortlessly slip underneath the radar of law requirement that must concentrate on a scope of various dangers. The approach counters the impersonalization made by social versatility and urbanization, returning society to a domain more like the little groups that describe provincial territories. By keeping these anti-state actors from mixing into their environment, they lose the obscurity basic to their capacity to mount assaults. With the potential obliteration made by technological advances, it turns into all the more imperative to endeavor to prevent such assaults.
Security implements privacy’s choices. Security determines who actually can access, use, and alter data .
3) The Controversial Sections under the US PATRIOTS ACT, 2001
Section 213: According to the Fourth Amendment of the U.S. Constitution, the people are “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…, and no Warrants shall issue, but upon probable cause. …” . It has been interpreted by the court that the law enforcement agencies must provide a notice on various searches and seizures. When agents have “reasonable suspicion” that it would be too dangerous or that it would undermine their investigation, they may enter without knocking and announcing .
Section 215 of the Act, the “business records” section, amends the Federal Intelligence Surveillance Act (FISA), which establishes the FBI’s procedures for conducting foreign intelligence surveillance . Under Patriot section 215, the FISA court must grant any subpoena for any “tangible things that the FBI requests” – including library borrowing records, financial institution records, books, papers, and so forth – so long as the FBI specifies that those things are “sought for” an investigation related to terrorism or spying .
4) Privacy being infringed after the passing of the US PATRIOTS Act, 2001
Privacy is something beyond a legal or constitutional right. The privilege to security is an essential, constitutive standard of American democratic system: common freedoms including right to privacy. Individuals need and anticipate that specific rights will protection, even to a degree that is at times more noteworthy than what the law ensures. Thus, some government projects may abuse privacy in any lawful sense, yet there would at present be concerns on the off chance that it conflicts with the normative desire of privacy. 
The PATRIOT Act has changed how surveillance can be directed. Before 9/11, there were two sorts of surveillance targets: criminal (ECPA) and spies (FISA). Suspected terrorists currently a third classification which the PATRIOT Act has basically set in the covert agent/FISA classification. A few sections of the PATRIOT Act unwind some of the FISA arrangements. In particular, Section 206 takes into account meandering FISA wiretaps, whereby a FISA court can issue a warrant against a knowledge target as opposed to a particular telephone or computer. Section 218 brings down the standards required for a FISA warrant. Already, FISA warrants were issued when the “primary purpose” of the examination was intelligence gathering.
Before 9/11, if investigators needed access to someone’s record, they could either get a court issued court order, a court requested subpoena, or could utilize an administrative subpoena. If the investigators needed records from different sources they were compelled by the necessity that they get separate warrants or subpoenas for every database to be sought. This changed with the passing of the PATRIOT Act and the proposed Total Information Awareness program.
To make it simpler, to get records of suspected terrorists, Section 215 of the PATRIOT Act enables the government to go to a FISA court and subpoena any outsider record, as long as the information is required for terrorist examination. There is neither a requirement for reasonable justification nor for the suspect to be a specialist of foreign power. While Section 215 has become presumably the most public of any section of the PATRIOT Act, Section 505 really considers significantly less demanding access to records, yet has to a great extent gotten away from criticism. Section 505 takes into account authoritative subpoena that require no reasonable justification or court oversight. There was a thought of making a centralized, comprehensive data base under the Terrorist Information Awareness (TIA) program keep running by the Defense Advanced Research Projects Agency (DARPA). The objective was to envision terrorist attacks and create situations for how they may be panned and technologically based advanced data-mining projects to check whether there is a pattern in the information of weapons purchases, aircraft tickets, equipment rentals and so on.
A law faculty at George Washington University, Orin Kerr accordingly describes the PATRIOT Act as “primarily modifications to pre-existing laws…an is significantly more modest than most people fear”.
As a matter of primary importance, the reason that there have been so few terrorist attacks over the most recent ten years is the immediate aftereffect of measures, for example, the US PATRIOT Act. National security is a consistent venture. It is more than anticipating terrorist; it is realizing what adversaries are doing consistently. Governments for the most part deflect wrongdoing through discipline. On account of terrorism, the attacks are generally suicide attacks. The terrorists are so ideologically determined that their own prosperity is of no significance to them. These sorts of activities cannot be dissuaded, they must be anticipated. Likewise, terrorists are intended to cause however much harm as could be expected. The point is obliteration and fear. Security theatre is a genuine issue and one that the security groups know about and needs to annihilate. Truth be told, the ‘theatre’ issue is predominant in numerous territories of government. This issue confirms that should be taken attempting diverse security techniques and examining them to figure out what works and what doesn’t. The way that security isn’t immaculate isn’t motivation to desert it. The most essential activity of government is to “secure the general welfare” of its nationals. Security is a typical decent that is guaranteed to all Americans, and it must exceed any individual worries about protection. Nowadays it is generally electronic, with the police and insight organizations tuning in into private telephone discussions or perusing messages (wiretapping). All these are indispensable instruments for following the activities of terrorists when they are arranging assaults. The administration can’t remain by and hold up until the point that criminal demonstrations are done: it must stop assaults before they happen. More tight security controls at airplane terminals and outskirts will help avoid assaults and death toll. Such measures could incorporate
more meddlesome checking, body seeks, watch records, and so on. Notwithstanding their prevention impact, they will empower authorities to stop assaults as they are going on. More tightly movement laws and harder passage measures can be utilized to diminish the odds of terrorists entering a territory. For instance, explorers from specific nations can be made to get visa papers before their adventure. Carriers traveling to the USA now need to pass arrangements of their travelers to the specialists before they take off for America. Most rights are not boundless but rather must be adjusted against different rights. Similarly, any privilege to protection is in no way, shape or form absolute. Any interruptions on security for security would be insignificant, and the most imperative rights would even now be respected. Contrasted with recruiting individuals into the military, some loss of protection is a little cost to pay.
Legally, there is little to prevent the government from gaining access to records of people. The Privacy Act of 1974 prohibited the government from keeping data on subjects who are not the subject of surveillance, but the government can get around this by either acquiring the data from private sources or utilizing sub-subpoena to get it. As far as general supposition, the utilization of subpoenas has gotten a great deal of wide criticism.
5) Privacy not being infringed after the passing of the US PATRIOTS Act, 2001
In evaluating privacy, it is valuable to take a glance of privacy from a legal, constitutional and normative viewpoint. Intrinsically, while numerous protection advocates refer to the Fourth Amendment as an underwriter of security, the word security is never really used as a part of the enactment. The present comprehension of how the Fourth amendment ensures security depends on the Supreme Court controlling in 1967 in which Justice John Harlan contended that there must be “a reasonable expectation of privacy”  with a specific end goal to require a warrant under the Fourth Amendment.
There have been a enactments to manage how the government manages security issues; these include the Omnibus Crime Control and Safe Street Act of 1968, the Foreign Intelligence Surveillance Act (FISA) of 1978, the Electronic Communication Privacy Act (ECPA) of 1986, the Privacy Act of 1974 and PATRIOT Act of 2001.
From a constitutional point of view, subpoenas don’t constitute a search; the subpoenaed part can be declined to convey the subpoenaed records and fight the subpoena order in court. Likewise, there is no clear cut expectation of protection of privacy when records are held by third parties. The Supreme Court in United States v Miller  ruled that bank records are not protected by the Fourth Amendment.
Legitimately, the PATRIOT Act changes a significant number of the prior arrangements of FISA and ECPA, yet the vast majority of these progressions are basic presence of mind refresh to wiretapping laws or just an outcome of ordering speculated terrorists the comparable terrorist specialist agents and therefore utilizing the FISA rules to direct the reconnaissance against them.
Constraining common freedoms and the right to privacy for the sake of safeguarding a liberal law based country is hypocritical in its nature. Current, western liberal popular governments exist to secure the privileges of their nationals. John Locke, the spiritual father of modern liberal democracy, believed that all individuals were conceived with inherent rights, one of which was freedom, and that the reason for governments to ensure was to ensure those rights. In the event that same government is assaulting the freedom and protection under the pretext of keeping the nationals secure, at this point it tends to deceive the very pith of liberal majority rules systems.
By and large, intrusive observation laws are passed in the midst of frenzy, directly after a terrorist attack when the citizens are terrified and edgy for anything to influence them to feel secure once more. It was in such an atmosphere, soon after the September 11 2001 terrorist attacks, that the US government passed the US PATRIOT ACT. The accessibility heuristic makes individuals consider something riskier when they can easily bring it to their mind and envision it. It is quite often due to these kinds of misrepresented dangers that administrations take away our opportunities in return for security. In any case, if the natives understand that the dangers are over-blown they understand that surrendering these rights isn’t justified, despite any potential benefits. 
To a great extent insufficient Transportation Security Administration (TSA) is an exemplary case of what’s known as “Security Theater.” Security Theater is a security activity that is exceptionally noticeable yet not extremely viable and accordingly gives individuals the figment that they are being protected yet doesn’t create real outcomes. With regards to hostile terrorist activities, the natives are to a great extent susceptible to Security Theater in light of the accessibility heuristic talked about above. Fundamentally, it’s more imperative that it would appear that something is being done to ensure the residents than that something is really being done to secure them. As terrorism is an over-blown danger and government officials know it, they can stun nationals with security theater and pick up profound respect regardless of whether nothing compelling is truly being finished. What’s more regrettable is that in this post 9/11 atmosphere of frenzy, the subjects have been persuaded that security intrusion is of paramount importance in order to protect them.
With the expanding digitization of each part of life, it is getting noticeably less demanding for organizations and the government to mine information. This digitization of the truth is sending the nationals into a world in which each part of their life is being observed by such organizations. As more parts of individual lives end up plainly associated with the web, it winds up plainly less demanding to keep an eye on. Organizations tend to exploit this data. The privilege to security lie behind the Fourth Amendment to the Constitution, which bans absurd “pursuit and seizure”. At the point when the administration gathers and offers data about its natives, it is leading an electronic rendition of such prohibited ventures. Any thought that expands the energy of government offices ought to be rejected. Previously, government offices (for instance, the IRS charge specialists) have abused their control over subjects. Measures for tourists to the USA influence the innocent in addition to the guilty. Regardless, numerous terrorist based activities far and wide have been completed by subjects against their own particular nation, not by outsiders. History has demonstrated that the reason of national security has regularly prompted the loss of fundamental rights. For instance, Japanese-American residents were bolted up amid World War II on security grounds. The war on terrorism isn’t a war like World War II. The adversary isn’t a state and it isn’t clear how triumph will be come to. This implies any loss of security will be open finished and may keep going for a long time. Yet, even in the midst of war, the quality of liberal vote based
systems is in rights and flexibilities. A triumph at the cost of the freedoms that make our general public extraordinary does not merit having one.
CONCLUSION
The preliminary concerns over the Act, concerns the potential for its abuse. . Such contentions are naturally engaging, and to be sure a few people believe that they generally work in a liberal popularity based state. They more often than not depend upon the presence of bad actors; if law requirement operators are very much prepared, don’t act in a dishonest manner; the potential for abuse is limited. Leaving aside the subject of whether abuse typically comes from awful (or inadequately prepared) actors, this issue is to some degree digressive to the Act itself. Second, the potential for abuse contention neglects to address security specifically. The task at hand was not to critique the PATRIOT Act in its entirety but instead focus on the sections that might have impugned privacy. The probability of abuse isn’t specifically identified with those inquiries. Abuse could have the impact of burdening security; however this is valid for many other goods too.
The US PATRIOT Act in its totality does not affect the privacy concerns of individuals as laid down in the arguments stated earlier. The word privacy has not been mentioned anywhere in the Fourth amendment. By way of the enactment of the US PATRIOT Act, it has helped in keeping surveillance over the terrorist activities within the country of United States. After the 9/11 attack, such an enactment is of paramount importance in light of curbing such activities. US has not seen such an attack of such great magnitude after the implementation of this act. The success of the Act can be seen in the various cases where the officials have used the method of wiretapping and various other provisions in order to prepare a suspect list and to foresee such attack so that they can mitigate the same. This Act has helped immensely in securing the nation at large though it may have put the privacy at stake for few individuals. The US PATRIOT Act has fulfilled in its objective of curbing such attacks of the magnitude of the 9/11 attacks.
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