I have to admit I haven't been all that well-informed about the Patriot Act. Since I haven't been working as a librarian for the last 3+ years, I haven't paid as much attention to issues that might bear upon libraries as perhaps I ought to have. The Patriot Act is one of those issues I sort of glossed over.
You should know that I am one of those "be skeptical of government" conservatives, the kind who have some definite libertarian leanings, which means that by default I am inclined to dislike things like the Patriot Act. After all, I think that subversives like Gary Kunsman and Joel Miller have a real point when they claim that the state exceeds its authority and impairs liberty in the "war on drugs". Doubtless I make some fellow conservatives angry when I say that marijuana should be legalized (n.b.: my pot-smoking days are well behind me). I favor the availabilty of strong encryption to normal U.S. citizens (what was the previous administration's ban on cryptography all about, anyway?). So up till now I've I've been grumbling about the state further eroding liberties when the Patriot Act is mentioned.
This evening I finally read the anathematized Section 215 of the Patriot Act to see for myself how bad it is. I confess I'm rather disappointed. Section 215 replaces 3 sections of the Foreign Intelligence Surveillance Act of 1978 with two new sections. As far as I can make out, this is what it says:
- The FBI Director, or another designated high-ranking FBI official may apply for an order to have materials related to an investigation to protect against international terrorism or against espionage;
- if the investigation is of a U.S. citizen, it may not be triggered simply by actions protected under the First Amendment;
- the application must be made either to "a judge of the court established by section 103(a) [of the Foreign Intelligence Surveillance Act]" or to a U.S. magistrate designated by the Chief Justice of the Supreme to hear and rule on these applications;
- the application must specify that the investigation for which the materials are needed either complies with subsection (a)(2) [of the Foreign Intelligence Surveillance Act of 1978] or is intended to protect against international terrorism or espionage;
- if the judge issues an order to produce the materials sought, the order should not disclose the purposes of the investigation for which it is issued;
- no-one may disclose that the FBI sought or obtained materials under this [amended] section [of the Foreign Intelligence Surveillance Act of 1978]
- a person producing materials under this provision shall not be liable for production to others, nor have they waived any privileges in other contexts by producing the materials sought;
- twice a year the Attorney General must "fully inform" the select intelligence committees of the House & Senate about all requests for materials under section 402;
- twice a year the Attorney General must provide a report to the House & Senate Judiciary Committees detailing how many applications for materials under this provision were made, and how many were granted, denied, or modified.
As I read this, it looks to me as if requests under Section 215 must be made by very high-ranking FBI officials (i.e. high-profile, highly-scrutinized, publicly accountable people). The request must be made to a very narrowly defined set of high-ranking judges. The Justice Department must give an accounting of its requests to intelligence and judiciary committees (on both of which sit *gasp* Democrats) of the House and Senate. What's more, Section 224 seems to say that Section 215 (as a non-excluded section of Title II of the act) sunsets on December 31, 2005.
Somebody help me here. Did I misunderstand what I read? Did I read the wrong section? Did not the FBI have power before to subpoena library records? What's all this about accountability to Congress? Please note that these questions aren't merely rhetorical. I'm not trying to set up a straw man. I'm not saying I like this section. However, I feel like I had a right to expect something much more nefarious than this based on the build-up from the civil liberties & library communities. I feel cheated. Surely I'm missing something.
I always have comments enabled in my journal. Somebody enlighten me, please. I want to dislike this act.