ChuckB writes “Orin Kerr, a Fourth Amendment scholar blogging at the Volokh Conspiracy, notes that the mainstream media are reporting on Judge Victor Marrero’s ruling on the “national security letter” provision of the Electronic Communications Privacy Act as if it were a blow against the Patriot Act:
As I noted in my post below, a recent decision of the Southern District of New York struck down part of a 1986 law known as the Electronic Communications Privacy Act. How does the press report the decision? No mention of the 1986 law, of course. Instead, the press is reporting that the court struck down a major part of the Patriot Act, in a blow to the Bush Administration’s overzealous response to terrorism. As I trace the history of the statute, this is quite inaccurate: the basic law was implemented in 1986, almost 20 years ago. To be fair, the Patriot Act did amend some language in this section; just not in a relevant way. As best I can tell, the court’s decision does not rely on or even address anything in the Patriot Act. (See page 14-22 of the Court’s opinion for the details of the statute’s history.)
Kerr links to incorrect stories in the New York Times , the Washington Post , and the Associated Press.
Read the decision for yourself. A prior post by Kerr discusses the ruling in more detail and suggests that Marrero’s ruling may lead to increased reliance on Section 215 of the Patriot Act.”
ChuckB writes “Orin Kerr, a Fourth Amendment scholar blogging at the Volokh Conspiracy, notes that the mainstream media are reporting on Judge Victor Marrero’s ruling on the “national security letter” provision of the Electronic Communications Privacy Act as if it were a blow against the Patriot Act:
As I noted in my post below, a recent decision of the Southern District of New York struck down part of a 1986 law known as the Electronic Communications Privacy Act. How does the press report the decision? No mention of the 1986 law, of course. Instead, the press is reporting that the court struck down a major part of the Patriot Act, in a blow to the Bush Administration’s overzealous response to terrorism. As I trace the history of the statute, this is quite inaccurate: the basic law was implemented in 1986, almost 20 years ago. To be fair, the Patriot Act did amend some language in this section; just not in a relevant way. As best I can tell, the court’s decision does not rely on or even address anything in the Patriot Act. (See page 14-22 of the Court’s opinion for the details of the statute’s history.)
Kerr links to incorrect stories in the New York Times , the Washington Post , and the Associated Press.
Read the decision for yourself. A prior post by Kerr discusses the ruling in more detail and suggests that Marrero’s ruling may lead to increased reliance on Section 215 of the Patriot Act.”
“Incorrrect” stories
Bull. The decision struck down a portion of the U.S. code that was substantially modified by the USA PATRIOT act.
Even your excerpt includes this statement:
“To be fair, the Patriot Act did amend some language in this section; just not in a relevant way.”
The author can certainly argue that the USA PATRIOT Act’s changes weren’t relevant to the decision–but that certainly does not make the news stories, that a portion of the act was struck down, incorrect. Maybe insufficiently sophisticated for this particular author, but that’s a whole ‘nother story.
Alas
The folks over at The Volokh Conspiracy are all working law professors or practicing attorneys. They do lean somewhat libertarian.
Alas, I trust what they say pretty much. They are a high-powered group with really good credentials. This is me deferring to authority, alas.
Re:”Incorrrect” stories
Noting first that we are in large agreement on this (as indicated by our exchange in this thread), I would still characterize the reporting on this story as misleading. Let me offer a crude and possibly silly analogy to illustrate.
U.S. Code Title 18 is like a forest. §2709 is a large tree in that forest. The Patriot Act is like a group of about 100 owls (one for each section of the Act–see, I told you it was a bit silly). Owl #505 came to this tree and altered one of its branches and built a nest on it (so it’s an owl with a degree in civil engineering). In his ruling, Judge Marrero has laid the ax at the root of this tree and tentatively felled it (tentatively, since he stayed his judgement pending DoJ appeal–the tree is suspended in mid-fall). The media are reporting “Large Patriot owl evicted by woodcutter” rather than “Large tree felled by woodcutter; takes owl #505 and his branch with it.” The major media reports what amounts to the lopping of of a branch, while ignoring the felling of the whole tree. In reality, the branch wasn’t lopped off–the whole tree was felled, with the branch intact. The passage from the First Amendment Center whcih both Michael Nellis and I quote does precisely this: portraying the felling of a tree as the lopping off of a branch. So much for my crude, silly analogy.
Kerr is now noting the NYT‘s correction of the story.
Re:”Incorrrect” stories
“Misleading.” You know, I can go along with that.