The USA-PATRIOT Act: A Fraction of the Problem

usa-patriot1.jpgOver at Legal Affairs Debate Club, Geoffrey Stone and Judge Richard Posner are debating the USA-PATRIOT Act. The focus of the debate thus far is on Section 215 of the USA PATRIOT Act, which states:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Further, this section requires that the person ordered to turn over the materials shall not “disclose to any other person . . . that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”

Stone calls for curtailing Section 215 and Posner comes out in favor of a modified version of it.

The problem with this debate, as with many debates over the USA-PATRIOT Act, is that it is focused only on the USA-PATRIOT Act. Many of the issues that people are debating about already existed in federal electronic surveillance law before the USA-PATRIOT Act.


In Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004), I explained how many problems blamed on the USA-PATRIOT Act are really problems with the pre-existing electronic surveillance law.

Why does it matter that the debate be expanded to electronic surveillance law more generally rather than limited to the USA-PATRIOT Act? Because it’s false to think that things were fine-and-dandy before the USA-PATRIOT Act. Rolling back the Act will not address most of the problems people are complaining about.

I’m not saying that there aren’t parts of the USA-PATRIOT Act that are problematic – indeed, there are a number of problem spots. But it is important to realize that the problems do not begin – or end – with the USA-PATRIOT Act.

For example, let’s look at how Section 215 is just one part of the larger problem. Suppose we abolish Section 215. Does this solve the problem? Not quite. Prior to the USA-PATRIOT Act, there were provisions in several federal laws for “National Security Letters” (NSLs) which function very similarly to Section 215. For example, under the Electronic Communications Privacy Act, 18 U.S.C. § 2709, the FBI can compel communications companies (ISPs and telephone companies) to release customer records when the FBI makes a particular certification. Like Section 215 of the USA-PATRIOT Act, this NSL provision has a gag order. The Right to Financial Privacy Act also contains an NSL provision allowing the FBI to compel information from financial institutions and providing for a gag order. 12 U.S.C. § 3414(a)(5). The Fair Credit Reporting Act, 15 U.S.C. § 1681u, has a similar NSL provision relating to records maintained by credit reporting agencies.

A NSL provision was struck down as unconstitutional in Doe v. Ashcroft, 334 F. Supp.2d 471 (S.D.N.Y. 2004). The case is currently on appeal to the Second Circuit. The outcome of this case will be much more important than whether Section 215 gets renewed or not.

Hat tip: Orin Kerr

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4 Responses

  1. Mike says:

    This snark isn’t directed at your. But I disagree with this statement: “The problem with this debate, as with many debates over the USA-PATRIOT Act, is that it is focused only on the USA-PATRIOT Act.” The debate has degenerated (yes, degenerated) into a discussion of balancing civil liberties and safety.

    I’m pretty young, so maybe I’m missing something. But aren’t lawyers, when discussing federal laws, supposed to liberally cite statutory language and relevant caselaw? How can we debate the PATRIOT Act without, you know, actually seeing what the law is? If I were God, I would strike down anyone who said “PATRIOT Act” without being able to cite at least three provisions of the law. I propose the two following rules when debating the PATRIOT Act:

    1. Anyone criticizing the PATRIOT Act is disallowed from saying “PATRIOT Act.” Rather, they must cite the actual provision they disagree with.

    2. The person must state the pre-existing law, so that the old and new can be compared and contrasted.

    If the person is unwilling or unable to do one or two, I will pray for lighting from on high.

    In any event, my criticism is not directed at you, since you actually cite the law a couple of times. That’s gotta be a frickin’ record or something.

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  4. Steven Adler says:

    Dan,

    I agree that the Patriot Act is only one part of a much larger issue on Government use of personal information for decision making purposes. What I see happening today is a broad assumption of Federal power over data: with businesses, universities, between data aggregators and federal agencies.

    The White House Executive Order on Information Sharing of October 25, 2005 (http://www.whitehouse.gov/news/releases/2005/10/20051025-5.html) is a great example. It empowers all government agencies to share information on Terrorists. While it includes sentences protecing privacy, terrorist interdiction is a National Security issue and National Security issues are exempt from most federal privacy laws. The Order even exempts the Federal Accountability Office from oversight. In fact, as an executive order, the Information Sharing Council established in the order has not oversight or accountability.

    Sadly, few in Washington seem to be aware of this Executive Order or the consequences of Executive control over information without public oversight.