The 17th anniversary of the Patriot Act is next week. Though it’s controversial for many reasons, one of the main criticisms against it is the extremely vague language used in the bill. It has been argued that the grey areas of this Act create room for the government to violate citizens’ privacy. Legislation like this is not only unconstitutional but also immoral, as often times it attaches itself onto vulnerable or pressing legislation in order to force unconstitutional provisions through Congress.
The long title of the Patriot Act encompasses the problem of vagueness perfectly. “An Act to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.” What are these other purposes, one might ask? The short answer is, no one really knows. The provisions of the act do not require the government to provide a reason for the actions that it takes, so long as the investigation is related to national security.
Unclear language in bills is an issue that advocates both old and new have fought against. Most recently, advocacy groups have been angered at a series of anti-sex trafficking bills, primarily because of this issue. Although there exists legal precedent for voiding vague criminal laws, it is questionable as to whether or not this extends within the realm of administrative law. Nevertheless, being aware of how vague legislation is used to undermine civil liberties and attempting to stop it before authorization is a much more sound strategy than attempting to appeal to the moral sensibilities of the very institutions responsible for these infringements.
Even though some of the harsher provisions of the Patriot Act expired in 2015, some of these were all restored in the USA Freedom Act, which has similarly vague language, leading advocacy groups to say that not much has changed. Most recently, Congresswoman Ann Wagner introduced the “Empowering Financial Institutions to Fight Human Trafficking Act.” This act allows for is the unregulated exchange of bank records between financial institutions, federal regulatory bodies, nonprofit organizations and law enforcement agencies. Most importantly, the Act has a “no good faith requirement” which does not require their requests to be sex trafficking suspects.
This act is another in a long line of anti-sex trafficking legislation that has been criticized by the American Civil Liberties Union for it’s “uncertain nature” and by sex workers themselves for hampering their ability to safely do their work. This forces the industry into an underground and unregulated market, leaving sex workers even more vulnerable to danger. Not only is the legislation a violation of civil liberties, but it is also completely ineffective.
Ultimately, the most troublesome part of the Patriot Act is the inability to counter it. The vagueness doctrine states that any law can be voided if its language is so unclear that one could be reasonably unsure if they were committing a crime. The doctrine does not extend itself to the vagueness of government action, but there are many lawsuits fighting to establish this. But once a law is in, it is up to the courts to strike it down. With nomination of Brett Kavanaugh, not much faith can be placed in the American judicial system, especially within the realm of the right to privacy.
As an active citizen, one must be aware of vague legislation and the many ways it can be used to slowly disintegrate constitutional rights. Although the work required to keep these freedoms is difficult, constant determination and persistent action can help us maintain them.
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Email Cole Stallone at [email protected]