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Magazines > Information Today > September 2005
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Information Today

Vol. 22 No. 8 — September 2005

Feature
PATRIOT Summer: Extending the USA PATRIOT Act
by George H. Pike

Writer George Orwell was under surveillance by Scot­land Yard's Special Branch from 1936 to 1948, according to recently released records. Ironically, 1948 was also the year he published his classic novel, 1984, the futuristic and frightening tale depicting a land of continual electronic and personal eavesdropping and regulated behavior ("Big Brother Is Watching You").

Scotland Yard had Orwell under surveillance because of his alleged involvement in communist activities. Fast-forward to 2005 and Orwell's reflections and his vision of 1984 can be viewed in light of the cold and hot war on terrorism.

After 9/11

The USA PATRIOT Act became one of the first responses to the war on terrorism after 9/11. Enacted in October 2001, the act responded to intelligence faults that allegedly prevented information from getting to proper authorities in time to block the attacks. The act was also intended to strengthen law-enforcement and intelligence-gathering tools to prevent future attacks. At its core, the PATRIOT Act allows the government to gather more information about more people and to share that information among additional government agencies. And this has raised concerns for many people, particularly those in the information industry.

While the 9/11 attacks were unprecedented, the PATRIOT Act was not necessarily a unique government response to an attack against the nation. In his book All the Laws but One, Chief Justice William Rehn­quist pointed out that threats to national security are often met with heightened surveillance or—worse
—surveillance of the country's citizens. World War I witnessed the Alien and Sedition Acts, World War II saw the internment of the Ja­panese, and the Cold War observed the House Un-American Activities Committee (in which even American icon President Abraham Lincoln is implicated, because he did not hesitate to suspend the constitutional protections of habeas corpus in order to protect against allegedly treasonous activity during the Civil War).

Many of the PATRIOT Act's provisions were directed to expire in December 2005, perhaps because of these lessons or perhaps just for political expediency. Not surprisingly, President George W. Bush made renewal of those provisions a prominent goal of his second term. Congress also is engaged in an increasingly partisan battle over which provisions to renew and for how long.

Section 215: Business and Library Records

In the nearly 4 years since the PATRIOT Act was enacted, its controversial provisions have become well-known. For the information community, Section 215 is particularly relevant. This section expanded the records that could be seized in an intelligence investigation to include virtually all "business records," including library and bookstore records, and possibly database user records.

Other provisions elevated the secrecy that surrounds an investigation to a higher level. For example, a library that receives a subpoena for records cannot discuss even the receipt of the subpoena. Individuals under investigation would also not be informed about the investigation until well after it had been undertaken, which could be as long as 6 months.

An important legal consideration underlying the controversy is the distinction between the constitutional rights of subjects in a criminal investigation and the rights of subjects in intelligence-gathering investigations. Criminal defendants have rights to be free from unwarranted searches, rights to consult with an attorney, a right to be notified of charges, and rights to confront witnesses and evidence. Subjects of intelligence investigations did not have the same level of rights even before the PATRIOT Act. The controversies surrounding the act are tied to this distinction. By broadening the scope of intelligence-targeted surveillance, the act allows the potential for greater invasion of private activities without the benefit of constitutional rights for the subject.

No less than a dozen separate bills proposing extensions, modifications, or reauthorization of the USA PATRIOT Act are currently before Congress. However, four bills—two in the House and two in the Senate—have emerged as the focus of the PATRIOT Act debate. Three of these proposals would either extend or make permanent most of the act's provisions. The devil is in the details and the degree to which any of the more controversial provisions of the act may be modified.

Action in the House

The House of Representatives spent most of July 21, 2005, debating its version of the USA PATRIOT Reauthorization Act (H.R. 3199). [Editor's Note: All of the bills mentioned in this article are available from the Library of Congress' Thomas Web site at http://thomas.loc.gov.] Approved by the House on a largely party-line vote, the bill made 14 of the 16 provisions of the act permanent. Some modifications provided greater judicial and legislative oversight, plus some clarification of the standards under which records can be obtained, but the changes do not substantially alter the act.

The two most controversial provisions—the library and business records and wiretapping—were not made permanent but were extended from 2005 to 2015. Alternative proposals to prevent government access to library and bookstore records, or to shorten the extension from 10 to 4 years, were rejected. One approved modification was a requirement that the director of the FBI must approve demands for library records personally. However, since many investigations are initiated by the Justice Department or the FBI (a branch of the Justice Department), this modification is being criticized as "cosmetic."

Interestingly, a month before the House vote on the Reauthorization Act, the House voted on a Justice Department appropriations bill that included an amendment preventing the Justice Department from spending any money on searches for library and bookstore records. This effectively banned those searches, but not necessarily other business records searches. That bill with the amendment is also before the Senate.

Action in the Senate

The PATRIOT Act was also under review in the Senate. Two major bills were being considered, one in the Senate Judiciary Committee (S. 1389) and one in the Select Committee on Intelligence (S. 1266). Both bills retained the business records provision; however, the Judiciary Committee's bill included additional judicial and legislative oversight to the process of obtaining a warrant. The bill also tightens the standard for obtaining a warrant, adds an appeal procedure, and allows the recipient of the warrant to contact an attorney. Finally, the bill extends the business records provision only through 2009.

Unanswerable Questions

How bad is the USA PATRIOT Act? This is a very difficult question. Part of the answer depends on perspective. There haven't been any major terrorist incidents in the U.S. since the act went into effect, which is undeniably a good thing. The House Committee has also received classified briefings about the successful use of the act in stopping potential terrorist acts.  

The question of whether the PATRIOT Act has or will be misused is also a difficult one. Of 2,000 complaints received by the Justice Department, only 10 merited further review, and none alleged misconduct or abuse of the act. Attorney General Alberto Gonzales indicated that only 35 requests for records under Section 215 were granted and that none of them covered library or bookstore records. On the other hand, the American Library Association reported that more than 200 libraries had received "formal and informal requests for materials, including 49 requests from federal officials." House Democrats also identified other allegations, including using fears of mass transit attacks to evict homeless people out of train stations, and granting 248 out of 248 requests to delay notification of act surveillance.

Much of the PATRIOT Act is not controversial and should be made permanent to guard against terrorism. The act may work, but, as any good research­er knows, the hardest thing to prove is the absence of something: We can assume that, because there have been no attacks, the act works. But we can't know what might—or might not—have happened in the absence of the act, or at least in the absence of the act's library records and other controversial provisions.

Secrecy and Action

The secrecy that surrounds the PATRIOT Act contributes the most to these questions. The chilling effect of "what could happen" is more pronounced when it's hidden behind the unknown. Increas­ing independent judicial oversight and the surveillance subject's constitutional rights would reduce the secrecy and resolve some of those questions. We generally have confidence in the criminal justice system because of the presence of these rights, as well as the open court system. The library and business records, and other controversial provisions of the act, become more palatable under these constitutional lights.

Just before adjourning for the summer, the Senate passed the Judiciary version of the PATRIOT Act. This leaves two competing versions before Congress—plus the House's funding limitation. This fall, a conference committee will attempt to work out a version that is politically acceptable to both sides of the aisle.

While there is no question that some form of the USA PATRIOT Reauthorization Act will pass, now is the time to make your voice heard about which version of the act should pass.

 


George H. Pike is director of the Barco Law Library and assistant professor of law at the University of Pittsburgh School of Law. His e-mail address is pike@law.pitt.edu. Send your comments about this article to itletters@infotoday.com.
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