The Patriot Act

I just love that name. It brings to mind images of the Founding Fathers. Or perhaps Mel Gibson defending his home against the British during the Revolutionary War.

The very title casts doubt upon the patriotism of anyone who would dare question it. Maybe that’s why this thing has been under my skin since the day it was announced. Maybe it was the fact that it was rammed through Congress with virtually no debate. Maybe it was the proximity to September 11th. Who knows.

But as I browsed the web this morning, I read something on a political web site claiming that most people who criticize the Patriot Act have never read it. No scientific evidence of this fact was presented. But it rang true.

And I’m embarrased to admit that I’m one of those people.

So in an effort to supplant the Dean/Clark detritus with something more substantive, I set out to find a copy. Unfortunately, the USA Patriot Act is not an easy read. It consists primarily of references to existing laws. Stuff like:

Section 631 of the Communications Act of 1934 (47 U.S.C. 551) is amended–

(1) in subsection (c)(2)–

    (A) in subparagraph (B), by striking `or’;

    (B) in subparagraph (C), by striking the period at the end and inserting `; or’; and

    (C) by inserting at the end the following:

`(D) to a government entity as authorized under chapters 119, 121, or 206 of title 18, United States Code, except that such disclosure shall not include records revealing cable subscriber selection of video programming from a cable operator.’; and

(2) in subsection (h), by striking `A governmental entity’ and inserting `Except as provided in subsection (c)(2)(D), a governmental entity’.

Nothing but a bunch of administrative flotsam, right? Most of the Act is cryptic that way. Here’s another gem:

(A) IN GENERAL- Notwithstanding paragraphs (1) and (2), no alien shall be considered inadmissible under section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)), or deportable under section 237(a)(4)(B) of such Act (8 U.S.C. 1227(a)(4)(B)), by reason of the amendments made by subsection (a), on the ground that the alien engaged in a terrorist activity described in subclause (IV)(bb), (V)(bb), or (VI)(cc) of section 212(a)(3)(B)(iv) of such Act (as so amended) with respect to a group at any time when the group was not a terrorist organization designated under section 219 of such Act (8 U.S.C. 1189) or otherwise designated under section 212(a)(3)(B)(vi)(II) of such Act (as so amended).

If the Patriot Act was a martini, it’d be so dry even James Bond would send it back.

Without referring to countless other sections of the United States Code, it’s tough to make heads or tails of it. Thankfully, there are many sites offering an extensive analysis of the legislation. Since so much of the Patriot Act involves obtaining electronic records or communications, I found the Electronic Privacy Information Center’s analysis to be the best.

In essence, the Act expands the surveillence powers of the federal government while reducing the burden of proof and justification traditionally required before a judge would authorize such an action.

I don’t want to analyze the entire bill, but I’ll just leave you with what I consider to be the most disturbing part of the Patriot Act. It is found in Section 501 (EPIC misidentifies it as ‘Section 156’). This section…

…grants the FBI the authority to request an order “requiring the production of any tangible things (including books, records, papers, documents, and other items)” relevant to an investigation of international terrorism or clandestine intelligence activities. Although the amendment is entitled “Access to Certain Business Records,” the scope of the authority is far broader and applies to any records relevant to the individual. This amendment, which overrides state library confidentiality laws, permits the FBI to compel production of business records, medical records, educational records and library records without a showing of “probable cause” (the existence of specific facts to support the belief that a crime has been committed or that the items sought are evidence of a crime). Instead, the government only needs to claim that the records may be related to an ongoing investigation related to terrorism or intelligence activities. Individuals served with a search warrant issued under FISA rules may not disclose, under penalty of law, the existance of the warrant or the facts that records were provided to the government.

To my eyes, this is in direct contradiction with the Fourth Amendment, which states that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The best thing I can say about the Patriot Act is that it includes a “sunset provision” which will terminate some parts of the Act at the end of 2005.

You may not feel that you are any less free than before. But if the government was reading your email, listening in on your phone calls, and monitoring your credit card statements, you’d never know about it. I don’t object to giving the FBI whatever power it needs to do its job. But with this legislation in place, the government can act with total impunity. We are expected to simply trust that the power will not be abused. The system of checks and balances which is so critical to preserving our rights has been circumvented.

I have supported many of President Bush’s initiatives over the past three years, but the Patriot Act is something I cannot abide. What’s the point of protecting America physically if doing so means setting aside the very freedoms that make our country different?

Rooting out terrorists in this environment is a hollow victory.

Addendum: as of 2015, the Patriot Act has been replaced with the USA Freedom Act, which Bill Hess has published an excellent primer on at PixelPrivacy.com.