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The USA-PATRIOT Act, which President George W. Bush signed into law in October 2001, was a complex measure designed to boost the federal government’s ability to detect and prevent terrorism. Its most important provision relaxed a judge-made rule that -- especially after it had been strengthened by the Clinton administration -- had prevented intelligence and law-enforcement officials from sharing information and collaborating on terror investigations. But the Act made many other needed changes as well: updating surveillance law to take into account new communications technology; enhancing the Treasury Department’s ability to disrupt terrorist financing networks; and modestly increasing the Attorney General’s power to detain and deport suspected terrorist aliens.

From the moment the Bush administration first proposed the legislation, leftist civil-liberties organizations began to warn of impending government tyranny. When the law passed, the Electronic Privacy Information Center depicted a tombstone on its website, captioned: “The Fourth Amendment: 1789–2001.” The Washington Post denounced the bill as “panicky.” And the American Library Association asserted that a particular provision of the PATRIOT Act—Section 215—was a “present danger to the constitutional rights and privacy of library users,” though the section says not a word about libraries.

The furor over Section 215 is in fact a case study of the paranoia and disinformation of Patriot Act opponents. The Section allows the FBI to seek business records in the hands of third parties—such as the enrollment application of a Saudi national in an American flight school—while investigating terrorism. It broadens the categories of institutions whose records and other “tangible items” the government may seek in espionage and terror cases, on the post-9/11 recognition that lawmakers cannot anticipate what sorts of organizations terrorists may exploit. (In the post-9/11 era, investigators may need need receipts from scuba-diving schools or farm-supply stores, for instance, to piece together a plot to blow up the Golden Gate Bridge.) Section 215 removes the requirement that the records must concern an “agent of a foreign power” (generally, a spy or terrorist), since the scope of an anti-terror investigation is difficult to predict in advance.

The ACLU warned that with Section 215, “the FBI could spy on a person because they don’t like the books she reads, or because they don’t like the websites she visits. They could spy on her because she wrote a letter to the editor that criticized government policy.” Librarians across the United States, certain that the section pertained to them, displayed signs warning patrons that the government might be spying on their reading habits.

These charges were unfounded. Any request for items under Section 215 requires judicial approval. An FBI agent cannot simply walk into a flight school or library and demand records. The Bureau must first convince the court that oversees anti-terror investigations (the Foreign Intelligence Surveillance Act, or FISA, court) that the documents are relevant to protecting Americans “against international terrorism or clandestine intelligence activities.”

Moreover, before the FBI can even approach the FISA court with any kind of request, agents must previously have gone through multiple levels of bureaucratic review just to open an anti-terror investigation. And to investigate a U.S. citizen (rather than an alien) under FISA, the FBI must demonstrate that the suspect is knowingly engaged in terrorism or espionage.

Another theme of the campaign against Section 215 and many other Patriot Act provisions is the notion that they violate the Fourth Amendment right to privacy. But there is no Fourth Amendment privacy right in records or other items that are disclosed to third parties. A credit-card user, for example, reveals his purchases to the seller and to the credit-card company. He therefore has no privacy expectations in the record of those purchases that the Fourth Amendment would protect. As a result, the government, whether in a criminal case or a terror investigation, may seek his credit-card receipts without a traditional Fourth Amendment showing to a court that there is “probable cause” to believe that a crime has been or is about to be committed. Instead, terror investigators must convince the FISA court that the receipts are “relevant.”

This analysis applies equally to library patrons’ book-borrowing or Internet use. The government may obtain those records without violating anyone’s Fourth Amendment rights, because the patron has already revealed his borrowing and Web-browsing to library staff, to other readers (in the days of handwritten book checkout cards), and to Internet service providers.

The Section 215 provision is unique, however, in that libraries or other organizations cannot challenge the FISA court’s order and cannot inform the target of the investigation, as they can in ordinary criminal proceedings. But that difference is crucial for the Justice Department’s war-making function. The Department wants to know, for instance, if an al-Qaeda suspect has consulted maps of the Croton reservoir and researched the toxic capacities of cyanide in the New York Public Library not in order to win the conviction of a perpetrator who has poisoned New York’s water supply, but to preempt the plot before it happens.

The Internet-privacy lobby joined the American Library Association in condemning the PATRIOT Act. The day the Act became law, the Center for Democracy and Technology warned that “privacy standards” had been “gutt[ed].” The Electronic Freedom Foundation declared that the “civil liberties of ordinary Americans have taken a tremendous blow.” The ACLU asserted that the FBI had suddenly gained “wide powers of phone and internet surveillance.” And the Washington Post editorialized that the act made it “easier” to wiretap by “lowering the standard of judicial review.”

The cause of this outrage was Section 216 of the PATRIOT Act, which merely updated existing law to modern technology. The government has long had the power to collect the numbers dialed from, or the incoming numbers to, a person’s telephone by showing a court that the information is “relevant to an ongoing criminal investigation.” Section 216 made it clear that the rules for obtaining phone numbers applied to incoming and outgoing e-mail addresses as well. The government can obtain e-mail headers—but not content—by showing a court that the information is “relevant to an ongoing criminal investigation.” This is not a vast new power to spy but merely the logical extension of an existing power to a new form of communication.

Civil liberties advocates also objected to Section 213 of the Patriot Act, which allows the FBI (with court approval) to delay notifying a property owner that his property will be or has been searched, if notice would have an “adverse result”; i.e, if he might flee the country, destroy documents, or intimidate witnesses before agents can acquire sufficient evidence to arrest him. In such cases, the court that issues the search warrant may grant a delay of notice for a “reasonable period” of time. Critics dubbed this Section the “sneak-and-peek” section and portrayed it as one of the most outrageous new powers seized by then-Attorney General John Ashcroft. The ACLU warned: “Now, the government can secretly enter your home while you’re away . . . rifle through your personal belongings . . . download your computer files . . . and seize any items at will. . . . And, because of the Patriot Act, you may never know what the government has done.” 

But for many years, federal judges have been granting warrants in criminal cases under identical standards to those of Section 213. The possibility of seeking delayed notice is a longstanding law-enforcement prerogative, sanctioned by numerous courts. Section 213 merely codified the case law to make the process uniform across different jurisdictions.

Adapted from "Straight Talk on Homeland Security," by Heather MacDonald (August 11, 2003).



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