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.
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