The Corner

Patriot Deal

The deal that has been struck to move the Patriot Act forward (hopefully, toward re-authorization) is not quite as reported by the AP last night – a report on which I commented here.

The AP had said: “… [A] second proposed change would clarify that only libraries that are ‘electronic service providers’ could be required to provide information to government agents as part of a terrorist investigation.”

What the deal actually provides is that if the government tries to compel information by National Security Letter (NSL) from the FBI, libraries are exempt unless they are electronic service providers (e.g., allow patrons to use the Internet and email services). But the deal provides no such restrictions if the government decides to try to compel the information by an order from the FISA court under Section 215 of the Patriot Act.

The AP report to which I reacted last night did not draw any distinction between NSLs and Sec215 orders and suggested the government might be completely blocked unless a library made Internet services available. Thankfully, that is not the case.

The other two aspects of the compromise are minor: A person who receives a Sec215 order or an NSL will now be able (a) to consult a lawyer without identifying that lawyer to the government, and (b) to challenge – after one year – the order that he not disclose the fact that he received the Sec215 order or NSL.

On the latter, it should be noted that few people will actually file such a challenge (contrary to the ACLU worldview, most Americans would cooperate with the government in terrorism investigations even if the law did not require them to do so). For those who do file a challenge, however, it is expected that courts will generally uphold the nondisclosure order if the government can show that exposure would harm an investigation, harm national security, harm foreign relations, or endanger the physical safety of any person.

This is a very good deal.

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