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The USA-PATRIOT Act: A Fraction of the Problem
Posted By Daniel Solove On October 6, 2005 @ 2:00 am In Criminal Procedure,Privacy,Privacy (Electronic Surveillance),Privacy (Law Enforcement) | 4 Comments
Over 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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URLs in this post:
 Legal Affairs Debate Club: http://legalaffairs.org/webexclusive/debateclub_patact1005.msp
 Reconstructing Electronic Surveillance Law: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=445180
 Orin Kerr: http://volokh.com/posts/1128480409.shtml
 : http://www.whitehouse.gov/news/releases/2005/10/20051025-5.html
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