Highly watchable: John Ashcroft takes his Patriot Act off the road

Jacob Sullum

8/22/2003 12:00:00 AM - Jacob Sullum

Attorney General John Ashcroft is on a publicity tour, promoting the USA PATRIOT Act and preparing the public for a sequel. But just as you can't always believe an actor who tells you his latest film is sure to be a hit, you have to take what Ashcroft says with a grain of salt.

Ashcroft is reacting to bad reviews from critics who say the PATRIOT Act -- given a green light just a month and a half after the September 11 terrorist attacks by members of Congress who had not even read the script -- was rushed into production. The result, they say, was a deeply flawed work in which civil liberties make only a brief appearance.

The defense mounted by Ashcroft's publicists makes you wonder if they've seen the same law. Take Section 215, which authorizes the FBI to demand "any tangible things" it considers relevant to a terrorism investigation. Anthony Romero, executive director of the American Civil Liberties Union, says this provision gives the FBI "unprecedented access to personal records and other belongings."

Yet according to the Justice Department's PATRIOT Act Web site (www.lifeandliberty.gov), Section 215 simply lets the government "ask a federal court (the Foreign Intelligence Surveillance Court) . . . to order production of the same type of records available through grand jury subpoenas." What it doesn't say is that such a request is little more than a formality, since the FBI merely has to state that "the records concerned are sought for an authorized investigation."

The FBI need not show probable cause, the usual standard for a warrant, or even allege that the individual whose records it wants is involved with terrorism. The person may be completely innocent, provided the FBI thinks the records might be useful.

To get a sense of how likely the Foreign Intelligence Surveillance Court is to question that judgment, consider its record with respect to wiretap and electronic surveillance applications, which have to meet a stricter standard. Out of some 15,000 applications since 1978, the secret court has rejected not one, and it has asked for modifications in only five.

Section 215 covers a lot of territory. The ACLU, which has challenged the provision in federal court, notes that the FBI could use it to demand, among other things, "personal belongings, such as books, letters, journals, or computers, directly from one's home"; lists of Web site visitors; medical and psychiatric records; lists of people who have borrowed certain library books or subscribed to certain periodicals; and membership lists for advocacy groups or houses of worship.

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.