This one’s going to be a little long and at times complicated, so let me give the summary upfront: Nick Gillespie, the editor of the libertarian magazine Reason, doesn’t know what he’s talking about when it comes to the Patriot Act (among, no doubt, many other issues).
Some background: A few days ago, Julian Sanchez, a writer for Reason, criticized Rich Lowry and other defenders of the Patriot Act. Lowry was accused of making factual mistakes. I mentioned that Reason had never addressed the factual mistakes it had itself published about Patriot. After an exchange with me, Jesse Walker, one of the mistaken authors I had in mind, graciously conceded that he had been wrong. Gillespie, the other writer, has now published a characteristically graceless response to me that concedes nothing and, indeed, calls my claims “absurd.”
Before addressing the issues involved, Gillespie writes the following: “I’d like to give a rave review to Ponnuru’s positively lurvly spasm of journalistic solipsism just yesterday on National Review’s endlessly entertaining staff blog, The Corner — in which he answers for all time the question of whether anyone can hear you throw a hissy fit in cyberspace. ‘It would,’ wrote Ponnuru, ‘be nice if someone at Reason were to acknowledge the magazine’s own repeated errors of fact in describing the Patriot Act, which I have mentioned in NR.’ Indeed, it would have been nice if anyone at National Review had seen fit to bring such ‘errors’ to our attention when they appeared months ago in that fine publication, a standard practice when slagging — er, citing — other journos; while I and my crew read widely and conscientiously. . . we do occasionally miss an issue of the magazine that is about to publish a collection of President Bush’s war speeches.”
Let us pause to take the excess lead out of Gillespie’s attempts at irony.
I thought I was bringing Reason’s errors — Gillespie’s sneer quotes are inappropriate, since Walker has already admitted there were actual errors — to Gillespie’s attention with my little “spasm of solipsism.” It appears to have worked: He is finally addressing the issue, sort of. But hey, I work with people who think that President Bush’s speeches about the war on terrorism might be worth reading. Obviously, it is therefore the case that nothing I say can be worthwhile. (I suppose I should be happy that Reason, this time, has at least refrained from suggesting that my name reminds them of a monkey.)
In his introductory passage, Gillespie claims that John Ashcroft has labeled him “an enemy of the state,” which reveals him to be a drama queen if not a thrower of hissy fits. He also refers to the “widely reviled” Patriot Act, which suggests he needs to get out more. You’d think that anyone interested in giving an accurate picture of the world would note that while a sizable minority of Americans revile the act, a large majority supports it.
Here’s what Gillespie wrote in the passage about the Patriot Act that I criticized a few months ago: “The USA PATRIOT Act is a synecdoche for the freedom-for-safety swap. Among many other things, it sanctioned roving wiretaps (which allow police to track individuals over different phones and computers) and spying on the Web browsers of people who are not even criminal suspects. It rewrote the definitions of terrorism and money laundering to include all sorts of lesser and wider-ranging offenses. More important, as [the Electronic Frontier Foundation] underscored, ‘In asking for these broad new powers, the government made no showing that the previous powers of law enforcement and intelligence agencies to spy on U.S. citizens were insufficient to allow them to investigate and prosecute acts of terrorism.’”
Here’s what I wrote about those comments in an article for National Review: “Libertarians have been particularly exercised about Patriot’s green light for ‘spying on the Web browsers of people who are not even criminal suspects’ — to quote Reason editor Nick Gillespie. This is a misunderstanding of Patriot, as George Washington University law professor Orin Kerr has demonstrated in a law-review article. Before Patriot, it wasn’t clear that any statute limited the government’s, or even a private party’s, ability to obtain basic information about electronic communications (e.g., to whom you’re sending e-mails). Patriot required a court order to get that information, and made it a federal crime to get it without one.”
I continued: “Kerr believes that the bar for getting a court order should be raised. But he notes that Patriot made the privacy protections for the Internet as strong as those for phone calls and stronger than for mail. Patriot’s Internet provisions, he concludes, ‘updated the surveillance laws without substantially shifting the balance between privacy and security.’”
Gillespie’s first attempt to deal with this criticism is to change the subject: “Yet it’s Ponnuru who misunderstands. The immediate question is not how PATRIOT amended existing legal procedures (more on that in a minute), but whether it allows the government to delve into personal records, including Web use, of people who may or may not be charged with a crime. . . . Section 215 of the act plainly allows this.” Actually, the immediate question is whether Gillespie got the story right. He clearly suggested that Patriot had changed the law in particularly egregious ways — what else is the point of saying Patriot was part of a post-9/11 “freedom-for-safety swap,” or the reference to “the previous powers of law enforcement”? — and cannot now pretend that he was merely making the weaker claim that Patriot continued to allow things that Gillespie dislikes.
Gillespie’s comment about Section 215 of Patriot makes sense only as part of his weaselly attempt to shift ground. Yes, it’s true that this section of the law “allows the government to delve into personal records, including Web use, of people who may or may not be charged with a crime.” So does every other surveillance law, both before and after Patriot. Neither the Fourth Amendment, the criminal surveillance laws, nor the Foreign Intelligence Surveillance Act has ever exempted personal records from surveillance just because the person in question was not going to be charged with a crime. In the Fourth Amendment and criminal-surveillance contexts, the question is always where the evidence might be. If evidence relevant to a criminal investigation is in your house, your house can be searched — even if you’re not suspected of anything.
Section 215 does expand the government’s power under the Foreign Intelligence Surveillance Act. Pre-Patriot, the government could use FISA to search the records only of suspected spies or terrorists. Patriot loosens the standard: Now the evidence sought need only be relevant to a FISA investigation. In other words, Patriot brings the FISA standard into line with the traditional Fourth Amendment/criminal law standard. It’s not some dangerous break with existing law. To imply otherwise is either ignorant or dishonest. In this case, I’m inclined to be charitable toward Gillespie.
Next, Gillespie turns to Cindy Cohn, the legal director of the Electronic Frontier Foundation, to counter the work by Prof. Kerr that I had cited. Notwithstanding Gillespie’s claim to “read widely and conscientiously,” he obviously did not bother to read Kerr’s law-review article. If he had, he would have saved himself from making more mistakes.
Surveillance law distinguishes between the “contents” and the “envelope” of a communication. For snail mail, the envelope information is exactly what you’d expect: the addresses of the sender and recipient. For other forms of communication, the distinctions are supposed to be analogous. The precise boundaries are the subject of some dispute, however, because the government generally has more power to collect envelope information than content information. Should the web address you’re looking at be “contents” or “envelope” information? If you’re doing a search on Google, for example, the full address will reveal a lot of information about what you’re looking for.
Before Patriot, it wasn’t clear on which side of the line web search terms fell. Cohn thinks that a pre-Patriot court would have sided with her and other civil libertarians in counting web search terms as contents. She suggests that Patriot made them count as envelope information instead. The result was, in her words, “a higher degree of protection than some government attorneys” — including Kerr, a former Justice Department lawyer — “thought they could get away with, but [a lower degree] than what many civil libertarians thought a court would do if asked.” Thus Patriot weakened privacy protections for websurfing. Cohn writes that “as a result of the Patriot Act, the public lost the chance to argue that web searches are ‘content’ and so a wiretap [order] was required” before the government could collect the information.
Cohn is flat wrong, for reasons explained in pages 644-48 of Kerr’s article. The Patriot act does not alter the statutory definition of “contents.” In fact, the First Circuit recently held that web search terms are contents, just as Cohn wants them to be. The decision doesn’t mention the Patriot Act for the simple reason that the Patriot Act is wholly irrelevant to the question.
I would suggest that Nick Gillespie spend less time disputing issues about which he knows next to nothing, and go back to his regular work: running a magazine that used to have some merit into the ground.