BEYOND TERRORISM: THE POTENTIAL CHILLING EFFECT ON THE INTERNET OF BROAD LAW ENFORCEMENT LEGISLATION

St. John's Law Review, Spring 2006 by Gardella, Todd M

2. Support for Expanded Law Enforcement Authority

Much positive support for the antiterrorism laws also exists, especially within the law enforcement community.81 On July 13, 2004, the United States Department of Justice released a report extolling the success it has experienced due to the increased power it derives from the Patriot Act.82 The report was issued as part of a Bush administration campaign to discourage Congress from weakening the law.83

In early 2003, the Justice Department drafted a legislative proposal entitled the Domestic security Enhancement Act.84 Perhaps the greatest insight into the Justice Department's campaign for increased authority, the proposal-nicknamed "Patriot II" or "Son of Patriot"-reached the public via leak, not official release.85 Congress played little or no role in its drafting, which has raised separation of powers concerns, in addition to the more common apprehensions regarding liberty.86 In citing the Justice Department proposal by name within a bill designed to reassess recently enacted terrorism legislation, members of Congress have opposed the proposal's sweeping grants of authority that "are not related to terrorism, and would severely dilute and undermine many basic constitutional rights as well as disturb our unique system of checks and balances."87 The proposal seems to make clear that the Justice Department will not only continue its lobbying against the sunset provisions and repeal of existing laws, but will actively seek to expand its power.

The Department's 120-page document makes the following proposals: to enhance the government's ability to collect data on citizens, such as increased access to consumer credit reports;88 to more liberally collect genetic information;89 to increase the surveillance power of the government;90 to provide immunity from liability to law enforcement, businesses, and others who provide terrorist tips;91 to criminalize the use of encryption in furtherance of a federal felony;92 to broaden the government's ability to keep information from the public;93 and to deport and denaturalize American citizens.94 Notably absent, however, from the Justice Department's proposals is a sunset provision.96 Also, while the original Patriot Act purported to supply tools with which to combat terrorism,96 the Justice Department's proposal for a Domestic security Enhancement Act transcends any specific goal regarding terrorism.97

II. FIRST AMENDMENT JURISPRUDENCE

A. A Brief History of Free Speech Protections

The First Amendment to the United States Constitution guarantees that "Congress shall make no law .. . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."98 The Supreme Court did not commence substantial interpretation of the First Amendment until early in the twentieth century when Congress passed a pair of acts to suppress assertedly subversive speech around the time of the First World War.99 This does not mean, however, that the government had not attempted to suppress political speech prior to World War I.100 In fact, history has shown that during war and comparable times of crises, protecting civil liberties has often taken a back seat to combating or coping with the exigencies at hand.101 The ebb of civil liberties during such trying times, however, alternates with the reflection that occurs during peaceful or stable times.102