Abstract
Terrorism creates imbalances in the federal law. In the State’s judicial system, Supreme Court is the arbiter of the law. Hence settling disharmonizations, contradictions and inconsistencies are the mandate of Supreme Court.
In practice, this means that such issues are never resolved while others are held for years. Checks and balances in the constitutions belong to these complications (Scheppler 28). As a result, the state always finds itself in conflict among the three branches of the government.
At times, costs of these checks and balances are weighed in consternation and confusion against capricious and arbiter dictates with signs of permanent solutions. Currently the federal government is facing a lot of conflict among the executive, legislative and judicial systems.
The major causes of these contradictions include: The 1996 Health Insurance Portability and Accountability Act [HIPAA], the Financial Services Modernization Act [FSMA] enacted in 1999, the Homeland Security Act enacted in 2002, information-sharing, national security, antiterrorist legislation such as the USA-PATRIOT Act of 2001 and the Homeland Security Act enacted in 2002. Finally, there is the Family Educational Rights and Privacy Act [FERPA] of 1974 legislation.
In any democratic administration, the legislature passes laws that ensure individual’s privacy on information regarding medical care, education and finance questions which is protected by the judicial system. In contrarily, the federal government executive after 9/11 attack has fought against the legislature and the judiciary in a move to counter terrorism. The legislation body has been made to amend laws that allow collection of information by the executive.
This is carried out through cancellation of private bodies that were used to surrender information on requests. They have also expanded their investigation purview. Nevertheless, some people from the Information Technology sector and high education have joined hands with several other bodies to seek judicial redress on these contradictory legislative imperatives.
As a result, constitutional conflicts have risen between the legislature, executive and the justice system over the national security under Homeland Security and USA-PATRIOT. While the executive uses national security to maximize its security operations it violets the legislative privacy rights of institutions and citizens.
Constitutionally, citizens are entitled to confidentiality up to some levels. Nevertheless, the executive has found it very limiting to operate within the limits provided by judiciary, hence it pushed for the enactments of USA-PATRIOT and Homeland Security amendments (Scheppler 23).
Introduction
Under HIPAA, FERPA and FSMA, the judiciary protects citizen’s privacy as provided by the law. The arms of government recently are conflicting with each other as shown by example from FERPA operations. However, FERPA is closely tied to HIPAA through similar student and medical records policies.
Additionally, financial data from FSMA also works under the policies as FERPA and HIPAA. Executive moves towards handling students’ data are a practical picture on how all the branches of governments are ride against each other (Allen 56).
According to the constitution, FERPA is charged with ensuring maximum data security both non-electronics and electronic with enhanced standards of availability and confidentiality. The legislature expectations are that the executive body should provide these centers with backups through intuitional supports. The executive government can aid these bodies to software and hardware investments and also skilled employees’ provisions (Albrecht and McIntyre 115).
However, the first executive move was the enactment of Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA-PTRIOT Act) under the national security with powers beyond constitutional mandate. Since the September 11th attack, the government has created several amendments mostly under Homeland security aiming to eradicate and curb further terror threats.
Coincidentally, some of the amendments especially under the USA-PATRIOT have brought several legislative and judicial conflicts. Civil privacy legislation has been the most violated by the USA-PATRIOT Act steered by the executive. This paper analyses some of the conflicts that have occurred under national security amendments. The paper focuses on the conflicts that have arisen between USA-PATRIOT Act and PEFRA as one of the organs that have been affected under legislative rights (Levmore and Nussbaum 87).
National Security Legislation
Contrary to the expectations, the national security legislation moves in a different direction to civil legislation. Acts such as Homeland Security Act and Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the USA-PATRIOT Act) were amended to enhance sharing of information by private bodies to the executive. This was to be carried out through enhanced surveillance, creation of efficiency in intra governmental information sharing and strengthening the criminal law in a move to curb terrorism (Henning 41).
Notably, Homeland Security Act has impacted on Civil Privacy Legislation in two major parts. The first is the Student and Exchange Visitor Information System (SEVIS) and also Naturalization Service. Secondly, Homeland Security actions over computer abuse, which causes harm through any mode such as hacking. Consequently, the executive surveillance through USA-PATRIOT Act is directed heavily over research, scholarship, higher education Information Technology resources and libraries (Scheppler 25).
The PATRIOT Act after amendments
On the FERPA health and safety exception, the USA – PATRIOT has additional terrorism exception. This has brought a lot of new dimensions to FERPA. Under FERPA, the law allows students’ privacy to be breached only for safety measures, such as searching email or Facebook for clues for a missing student by police.
After US-PATRIOT amendments, FERPA regulations can be neglected by the executive officers under claim of a terrorist investigation. In such cases, the amendments conflict with FERPA legislation while the judicial system is put in cross road between protecting the constitution and the executive powers (Levmore and Nussbaum 123).
Domestic terrorism is related to acts that violate human criminal law of a state or the United States and is dangerous to human life. The intension of such an act might appear to coerce or intimidate people, influence government policies, and affect government conduct through assassination, mass destruction and kidnapping within the State. The term ‘appear’ contradicts criminal law level of requisite.
After the executive intervention for the amendments, the expanded USA-PATRIOT domestic terrorism meaning is so wide that executive officers can easily infiltrate into FERPA legislations. The trend shows that students have very little or no privacy because their custodians might be required to disclose such information and terrorism related claims. In such a case, the custodians lack the legal backup and cannot turn to the justice offices for defense (Albrecht and McIntyre 81).
Foreign Intelligence Surveillance Act (FISA) of 1978 is the most affected act in USA-PATRIOT Act. FISA has been through several transitions in ensuring that terrorism activities are under control. Such requests are taken to the FISA court where the proceedings are hidden from the public. This is seen as a violation of the legislative system in a way. Recently, FISA Court ruled favoring the new standards and removed the Justice Department laws and practices, which generated the Chinese wall.
This created a separation of garden criminals and foreign investigation intelligence. After the amendment, there has been no clear divide between criminal and terrorist prosecution and investigation powers. The expected result is power collision at some point between the judiciary and the legislature (Albrecht and McIntyre 81).
Concerns have raised over some of these FISA amendments by different bodies. The library community, for example, raises alarm over section 501 of the business records. The FISA amendment in this section is that financial institutions will have no financial loses when their records are exposed to the executive body such as under FSMA.
This contradicts the fair information sharing privacy legislation and does not allow sharing of such information. Additionally, the legislation does not require institutions to have such information (Scheppler 33).
University and College counsel hence are sandwiched between two federal bodies, the legislature and the executive. While FISA amendment might require financial information from the counsels, FSMA will require a document validating such disclosure before ruling over its appropriateness. The counsels hence are under pressure to move against the law and keep records of such transactions.
Additionally, high confidentiality should be ensured by all the involved parties in such transactions. FSMA also is charged to update its documents and protocols under which such information discloser will be considered valid and invalid, however, this is not supported by the executive system as it seeks to ultimate power during its operations (FSMA 9).
Electronic Communications Privacy Act has undergone three amendments by USA-PATRIOT. There is an amendment on the emergency disclosures, computer trespasses for the sake judicial system and disclosure according to the executive powers.
Electronic operators have the right to disclose information to relevant authorities pertaining to death or injury to a person. Required discloser (rubber stamp subpoenas), however, is controversial the constitution. It requires no judicial injunction or Fourth Amendment but allows law enforces a lot of content or information (Henning 76).
Constitutional concerns arise over this amendment on the distinctions between electronic communication and telephonic conversational details. In the amendment, telephonic details without content are allowed by lesser Fourth Amendment and its standards to the third parties and the executive. At the same time, similar conversations on electronics such as internet, reveal some content through Protocol address mode in websites.
While drafting the amendments, either that the framers were not versed with electronic communication or under the influence of executive machinery. Civil libertarians are especially concerned with this amendment atop the antiterrorism amendments. In higher education, this debate has raised the greatest impact among counselors and data management team (Lock 67).
Computer operators are allowed under the trespass amendment, to report incidences of hacking and any other unauthorized computer entry into their system to the law enforcers with no regards to ECPA discloser liability. The amendments as well generate some conflicting ideas to the judiciary.
The first question in regard to the limits such as incidences should be reported as they frequently happen. Presently, there are no thresholds of reporting such cases clarified by the amendment. The next question is whether limit investigations can be controlled or countered once they start (Levmore and Nussbaum 118).
The provision of the amendment states that the right to privacy does not exist. In such a case, the power of the judiciary and the legislature is questionable as scholars interpret this as a direct attack on the Bill of Right in one way or another. It is also a matter of concern that this provision has no terrorism concerns on it.
This can imply that even before 9/11 the office of attorney had this provision in its waiting list. USA-PATRIOT Act hence was simply used as a vehicle for its enactment. The traditional Fourth Amendment protection’s legislative power is crumbled by this provision since the penalty for alleged perpetrators moves direct to capital punishment. The question left is whether the amendment was aimed at withdrawing the Fourth Amendment in the respect (Lock 38).
In normal senses, civil legislation of HIPAA, FSMA and FERPA should be the governing rule. On the other hand, national security, antiterrorism and sharing information through Homeland Security and USA-PATRIOT Acts are supposed to be exceptions. The deviations of USA-PATRIOT Act raise concerns of the possible swallowing of the legal privacy rule among constitutional scholars.
The resultant tensions between the legal structures cause apprehension among many citizens over overall privacy diminution. The impact is felt whether the causes are based on social norms, nature of information technologies or changes in the legal system (HIPAA 7).
The tension between national security and electronic security is an example of confusions arising between the judiciary and the executive. Intersections can be seen in the appropriation bills on cybersecurity research. The 2002 Cybersecurity Research and Development Act authorized a five years program worth nine hundred and three million dollars for ensuring that the states’ vigilance and ability to counter terrorism mechanism are enhanced on public and private computers.
Merging of the two wings can also be seen in the Research and Education Networking Information Sharing and Analysis Center (REN-ISAC). This body supports a research community by the provision of research aid and higher education through advanced security provision (Kimbrough and Bequette 112).
The synergies created by national security and electronic security should not, however, be synonymous. HIPAA, FERPA and FSMA share the goal of maintaining maximum privacy on their information. Hence, security is a need for such a privacy to exist. However, the security should be in a way that is consistent with the constitutional and judicial expectations. The USA-PATRIOT creates security only by ensuring information flow in a one way from owners to the executive.
It is clear that security concerns raised by the amendments have breached the privacy legislations. After 9/11, executive office requested verbally education records and several institutions responded. This was a direct violation of FERPA legislations and the judicial system at large. PEFRA responded by creating exception based on legal documents from the constitution as safeguarding tool against executive moves.
HIPAA and FSMA have not faced direct confrontation to determine how much they have been affected, but it is believed that the USA-PATRIOT Act has a fair chance to diminish their legislation and judicial pillars. This is based on the constant elimination of private sector liabilities and lowering of constitutional standards by the executive (FSMA 11).
Since the selected agents system was introduces under USA-PATRIOT Act, lowering in scales of academic research has been noticed. In Cornell University, for example, in the past there were eighty three projects for their agents selections, today only three projects are remaining after the USA-PATRIOT Act. Since naturalization and immigration laws were brought under Homeland Security Office, many foreign students have had delays in their projects and some have faced complete suspensions.
Of late, many academic bodies are unable to enter United States for their consultations, conferences and collaborations programs. Consequently, American higher education is constantly becoming more isolated and unwelcoming environment for inquiries and research. This has changed its twentieth century pillars of strong and vibrant academic ground (Lock 58).
Privacy is aimed at creating an all rounded autonomous and responsible citizen under a democratic government. When it has been withdrawn, most people are insecure and left with no responsibility in building their national trust. However, in the federal government the rights of individuals have been intertwined with the rights of the state. It can then be perceived that the principle of privacy underwrites the autonomy of institutions of higher education as separate bodies in United States from the market and the government.
While higher education is actively supposed to join the fight against terrorism under national security, there should be a line of distinction. National security should not override electronic security. On the other hand, academic researches should not be treated by national security as bioterrorism. Territorial protection should not be a barrier to students learning or exchange programs (Kimbrough and Bequette 87).
Universities and colleges should have the power to withhold their information from the executive unless under well-presented judicial papers. Such transactions should be documented for future references in case of further violation of privacy legislation. The parties involved must be forsworn to maintain and sustain the legislation of privacy. Supports from other bodies to the higher education are critical at this time.
Bodies such as American Association of Universities (AUU) and the American Association of University Professors (AAUP) need to put more pressure over Homeland Security Offices and Education Department.
Such pressures should be aimed at addressing the impact of the created restrictions and allow a collaborative research aimed at finding a constitutional harmony. Without proper address, USA-PATRIOT Acts will end up violating the privacy legislation to a point that citizens and institutions become both insecure under the State’s legal jurisdiction (Scheppler 27).
Conclusion
Security concerns have raised several conflict among the legislature, executive and judiciary. The controversies have resulted from the move by the executive to manage terrorism. The result has been a conflict, over the 1996 Health Insurance Portability and Accountability Act [HIPAA], the Financial Services Modernization Act [FSMA] enacted in 1999, the Homeland Security Act enacted in 2002, national security, information-sharing and antiterrorist legislation such as the USA-PATRIOT Act of 2001 and the Homeland Security Act enacted in 2002.
There is also the Family Educational Rights and Privacy Act [FERPA] of 1974. Most of these conflicts are in respect to civil privacy right. Following the amendments, FERPA has received a more direct impact from the executive influences.
As a result, privacy of an individual and institutions over issues such as record correction, relevancy, transparency, maintaining data disclosure and provision of FERPA legislative powers has been lowered. This has brought a lot of constitutional scholars and civil stakeholders fight for creation of governmental balances and checks.
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