The Corner

Patriot Act

Quick take on the “Patriot Act decision:” The district judge ruled that a small, not terribly important section of the Patriot Act is unenforceable. It allows the FBI to get very dry, non-private transactional information about telephone and email communications without a search warrant or subpoena. The FBI can compel it by a National Security Letter (NSL) to the communications provider company. Such letters may also direct the service provider not to disclose that the FBI has sought the records (since that would likely tip off the people being investigated).

This is not private information because it is in the hands of a third party. The judge does not like the fact that the FBI can demand such information merely by a representation (from a high ranking agency official) that it is relevant to a terrorism or espionage investigation — he would prefer that the FBI be required to make a showing and have judicial review first. But for years, the FBI has been able to get the same kinds of information by subpoena or pen registers in the course of investigating far less serious matters than national security. For a subpoena, no representation is required and for a pen register (a device that tells you who telephoned whom, when, and for how long), all the government needed to represent was that the information sought was relevant to a criminal investigation.

The judge thinks the 4th Amendment is violated because the communications company might feel compelled to comply without knowing whether the FBI was really conducting a national security investigation. The company might very well feel that way, but THAT it is not a violation of the 4th Amendment — an NSL, like a subpoena DOES compel information, but the information we’re talking about here is not private information of the kind the 4th Amendment proscription against unreasonable searches guards. The judge also objects to the fact that the letter does not tell the company that it might wish to consider going to court to try to get the letter voided. But subpoenas and most court orders don’t do that either. In general, people are expected to know and vindicate their own rights. Miranda is the major exception — and what Judge Marrero seems to be urging here is a sort of Miranda for NSLs.

The First Amendment problem is more colorable. The judge objects to the fact that the statute indicates the communications company must stay silent in perpetuity, and doesn’t even tell the recipient he/she can discuss compliance with a lawyer. But I don’t think this was a reason to void it. He could have found that the statute should be construed to permit the recipient to seek permission to disclose from a court at some reasonable point when disclosure would no longer compromise the investigation or national security.

I say this is not an important provision because there are virtually no circumstances in which, if the FBI needs this kind of information, it cannot get the information by simply issuing a grand jury subpoena. The FBI thinks it should be able to compel the information on its own (i.e., without judicial process or even consultation with Justice Department attorneys) because it is permitted to do so in some less important contexts (like health care fraud investigations). They have a point, but it is not one worth going to war over — especially if the price tag is a bunch of misleading press that suggests the Patriot Act is the installation of the Third Reich.


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