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

III. ANALYSIS: THE DELIBERATIVE FRAMEWORK NECESSARY TO EXAMINE THE DELETERIOUS EFFECT LAW ENFORCEMENT LEGISLATION MAY HAVE ON THE INTERNET

A. A Time for Response; A Time for Deliberation

In rapid response to the events of September 11, 2001, Congress enacted the Patriot Act just over a month after the terrorist attacks.151 Acting pursuant to its unique Constitutional role,162 Congress established a framework to confront the terrorist threat that, for the first time, had arrived on United States soil. Congress, therefore, took appropriate action to ensure the protection of America and the safety of its citizens. The separation of powers principle embedded in the Constitution-and which remains essential to our liberty-implicitly requires that the legislative branch take prompt action to mobilize the government against threats that not only challenge the institutions of government, but endanger the sovereignty of the people.163 After the dust settles, however, our elected representative body should exercise the reciprocal dutyattendant to its obligation to act decisively to defend the country and citizens-to undertake the deliberative process fundamental to representative government. To hedge its bold response, Congress responsibly enacted a sunset provision, granting the members time to consider whether these laws should become permanent.154

As already posited, encroachment on free speech incidental to law enforcement may have a destructive effect where the Internet is concerned.155 The courts have not yet forged firm First Amendment principles for the Internet, rendering it a distinct possibility that such destructive effects may occur.156 Proper deliberation-with a thorough understanding and honest assessment of the potential costs to the Internet and society in general-is necessary to determine whether society considers a margin of destruction to cyberspace an acceptable price for security.

B. Ostensibly Under the Banner of Terrorism: Legislation That Transcends the Antiterrorism Purpose

It is necessary to distinguish between "law enforcement" legislation and "antiterrorism" legislation. Determining whether a particular provision serves antiterrorism goals is central to any debate regarding whether to sustain, truncate, or expand the Patriot Act or similar initiatives. The actual purpose of legislation, however, may be broader than antiterrorism objectives, with the government seeking to augment its general power to prosecute.157 Because the Department of Justice has shown a desire to include activities beyond the scope of terrorism,158 it suffices to describe such potential legislation as "law enforcement" legislation.

There are provisions currently within the Patriot Act that do not relate directly to combating terrorism.159 The stated purpose of the Act is "[t]o deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes."160 On its face, this statement appears clear in asserting that the legislation is intended to broaden law enforcement authority and to leave open the possibility for "other purposes."161 But in considering the exigencies surrounding its hurried enactment, it seems more likely that the impetus to confront terrorism took precedent over ensuring proper analysis to determine whether each provision could be justified to the citizenry whose liberties were at stake.