A Guide to the Patriot Act, Part 1

The law, lawyers, and the court.
Sept. 8 2003 11:06 AM

A Guide to the Patriot Act, Part 1

Should you be scared of the Patriot Act?

(Continued from Page 1)

What it does: Section 215 modifies the rules on records searches. Post-Patriot Act, third-party holders of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without your knowledge or consent, providing the government says it's trying to protect against terrorism.

The law before and how it changed: Previously the government needed at least a warrant and probable cause to access private records. The Fourth Amendment, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and case law provided that if the state wished to search you, it needed to show probable cause that a crime had been committed and to obtain a warrant from a neutral judge. Under FISA—the 1978 act authorizing warrantless surveillance so long as the primary purpose was to obtain foreign intelligence information—that was somewhat eroded, but there remained judicial oversight. And under FISA, records could be sought only "for purposes of conducting foreign intelligence" and the target "linked to foreign espionage" and an "agent of a foreign power." Now the FBI needs only to certify to a FISA judge—(no need for evidence or probable cause) that the search protects against terrorism. The judge has no authority to reject this application. DOJ calls this "seeking a court order," but it's much closer to a rubber stamp. Also, now the target of a search needn't be a terror suspect herself, so long as the government's purpose is "an authorized investigation ... to protect against international terrorism."

Downplaying the extent of these changes, the DOJ argued to Congress that 215 is no big deal, since grand juries could always subpoena private records in the past. The difference they don't acknowledge is that investigators may now do so secretly, and these orders cannot be contested in court. While the new DOJ Web site asserts that searches under 215 are limited to "business records," the act on its face allows scrutiny of "any tangible thing" including books, records, papers, documents, and anything else. The site also says U.S. citizens may not be subject to search, but the act does not differentiate. How can it, when a library or doctor's office is simply asked to produce a list of names? And here is where the Justice Department hedges: It claims that a citizen cannot be searched "solely on the basis of activities protected by the First Amendment to the Constitution." That means you can't have your records searched solely because you wrote an article criticizing the Patriot Act. But if you are originally from India and write that article, well, that's not "solely" anymore is it? To be sure, the ACLU is doing a bit of fearmongering when it says the DOJ can rifle through your records if they don't like what you're reading. If you're a U.S. citizen and not otherwise suspicious, you're probably safe, so long as all you do is read.

Advertisement

When the judiciary committee, inquiring into the civil liberties implications of Patriot, asked about 215, the DOJ said in July 2002: "Such an order could conceivably be served on a public library, bookstore, or newspaper, although it is unlikely that such entities maintain those types of records. If the FBI were authorized to obtain the information the more appropriate tool for requesting electronic communication transactional records would be a National Security Letter." But as we will explain in Part 4, the government's NSL authority was also beefed up by the Patriot Act. In other words, the government may simply have a more effective means of conducting warrantless searches than the one everyone's riled up about.

How it's been implemented: The DOJ is playing this one particularly close to the vest. The act itself mandates semiannual reporting by the attorney general to Congress, but the only thing he must report is the number of applications sought and granted. Not very helpful unless that number is zero …

When asked by the House Committee on the Judiciary to detail whether and how many times Section 215 has been used "to obtain records from a public library, bookstore, or newspaper," the DOJ said it would send classified answers to the House Permanent Select Committee on Intelligence. The judiciary committee had what it called "reasonable limited access" to those responses, and it reported in October 2002 that its review had "not given any rise to concern that the authority is being misused or abused."

Wanting to learn more, the ACLU and some other civil rights groups filed a FOIA request, arguing that the DOJ was classifying its answers unnecessarily. But this May, a federal judge in U.S. district court in Washington ruled that the DOJ had the right to keep the specifics hush-hush under FOIA's national security exemption. The next day, at a judiciary committee hearing, Assistant Attorney General Viet Dinh did throw a bone to librarians, noting that in "an informal survey of the field offices," Justice learned "that libraries have been contacted approximately 50 times, based on articulable suspicion or voluntary calls from librarians regarding suspicious activity." He noted that most such visits were in the context of ordinary criminal investigations and did not rely on the powers granted by Section 215. * He did not give specifics on searches of any other establishments.

Independent attempts to chronicle the frequency of records searches have proved inconclusive. Within months after Sept. 11, federal or local officials visited nearly 10 percent of the nation's public libraries "seeking Sept. 11-related information about patron reading habits," according to a University of Illinois survey. But since librarians are gagged under the act, it's not clear that these reports are accurate. In any event, the same study suggests that about 13.8 percent of the nation's libraries received similar requests in the year before Sept. 11, so it's impossible to say that the problem was exacerbated by the new law.

Would you know if Section 215 had been used on you? Nope. The person made to turn over the records is gagged and cannot disclose the search to anyone.

Sunsets in 2005: Yes.

Prognosis: The first lawsuit against the Patriot Act was filed by the ACLU on July 30 this year, targeting Section 215. The suit has six mostly Arab and Muslim American groups as plaintiffs. Their claim is that 215 violates the Constitution and "vastly expands the power of the [FBI] to obtain records and other 'tangible things' of people not suspected of criminal activity."