Jacob Sullum

You may never know that the FBI has examined your records, because the people who are required to produce them are forbidden to tell anyone else. The FBI does not have to show a need for such secrecy, and it's illegal even to talk about Section 215 orders in general terms (by saying how many your business has received, for example).

The PATRIOT Act also allows secret searches, in which the target is not presented with the warrant until long after the search and therefore has no opportunity to make sure it's executed properly. The Justice Department says "these delayed notification search warrants have been used for decades," implying, as with Section 215, that nothing much has changed.

But the PATRIOT Act greatly expands the circumstances in which such searches are permitted, allowing them in any criminal case -- not just cases involving terrorism -- where the government believes its investigation would be jeopardized by timely notification. No wonder supporters of the law are having second thoughts: Last month the House voted overwhelmingly to withhold funding for "sneak and peek" searches.

Another area where the Justice Department plays down the changes made by the PATRIOT Act is the use of "pen register" orders, which allow police to obtain the phone numbers someone calls and from which he receives calls. Police can readily get such orders by asserting that the information is relevant to an investigation.

The Justice Department says the PATRIOT Act simply updated the law by applying pen register orders to the Internet. But in doing so, it gave the government easy access to information, including e-mail subject lines and Web site visits, that is much more revealing than a list of phone numbers.

As long as the Justice Department continues to insist that the PATRIOT Act hardly changed the law at all, it will have a hard time making the case that the changes were necessary.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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