Idaho Librarian

UPDATE ON THE PATRIOT ACT

Leonard Hitchcock

 There have been two interesting developments regarding the United States Patriot Act (USAPA) in the last few months.  Both have to do with surveillance measures introduced by the USAPA that threaten the privacy of all citizens, including library and book store patrons. The first development involves the Foreign Intelligence Surveillance Court (FISC). 

The Foreign Intelligence Surveillance Court.

 The FISC is a secret court of eleven judges that considers requests from the F.B.I. for permission to undertake surveillance of citizens and resident foreigners in order to gather information regarding foreign-sponsored threats to the security of the United States.  The FISC has been in existence for 23 years, having been created in 1978 through the Foreign Intelligence Surveillance Act.  Over its lifespan, it has considered tens of thousands of requests for surveillance.  Until August of this year, it was known to have denied only one such request.

The Patriot Act and the FISC

 The Patriot Act makes several amendments to the statute which established the FISC.  Clearly, the intention of the framers of the Patriot Act was to utilize the FISC to undertake massive surveillance operations in connection with the administration's “war” against terrorism.  The advantage to the Justice Department in making requests from the FISC is that a comparatively low standard of evidence is required to justify surveillance in foreign intelligence cases.  

Criminal Law and FIS Law

 In criminal law, (Title III of the U.S. Code), a law enforcement agency must convince a court that there is probable cause to believe that a serious crime has been or is about to be committed by the target and that the facility to be surveilled is being used by the target in connection with the offense.  Other provisions of Title III mandate that targets of surveillance must eventually be notified that the surveillance has taken place, that they may obtain the application under which the surveillance was approved and that they are entitled to argue, in court, against the admissibility of evidence so obtained.  The stringent degree of proof required to justify surveillance in criminal law, and the restrictions upon surveillance, exist because surveillance clearly infringes upon the public's Fourth Amendment right to freedom from unlawful search and seizure and its implied constitutional right to privacy. 

 In the case of foreign intelligence investigations, however, FISA law requires that those requesting permission to undertake surveillance need only establish probable cause to believe that the target is a foreign power or agent thereof, not that the target has or is about to engage in any criminal activity.   Neither is there a need to establish that the facility to be surveilled is being used in connection with a crime.  Moreover, it is not required that the target be notified, at any time, that the surveillance has taken place, and it is usually impossible for targets effectively to challenge the legality of the surveillance after the fact.

The “Wall” Between Criminal Prosecution and Foreign Intelligence Gathering

 Because of the clear differences between criminal law and foreign intelligence law, the FIS Act requires that a legal “wall” exist between the two.  If a case involves both espionage and criminal activity, investigation and prosecution of each must be carried on independently, and information acquired through surveillance under the FIS Act cannot be utilized for the purposes of criminal prosecution. 

The FIS Court Confronts the Justice Department

 In August of this year, the FIS Court, to everyone’s surprise, released to Congress the contents of a ruling that occurred in May, regarding Justice Department policy.  The Justice Department had, the previous March, promulgated new procedures for sharing foreign intelligence information.  The FIS Court found these procedures to be inconsistent with the provisions of the FIS Act, insofar as the procedures, in effect, broke down the wall separating foreign intelligence and criminal investigations.   It also found that the Justice Department had, in 75 applications for permission to conduct surveillance (most of them during the Clinton administration) lied to the FIS Court concerning the involvement of those investigations with criminal prosecutions. 

Lest the reader think that the Justice Department has some legitimate reason to have recourse to the FIS Court instead of criminal courts in its pursuit of terrorists, it should be pointed out that the Patriot Act makes numerous amendments to the criminal code, as well as to the FISA statute, and that those amendments clearly define a class of terrorist acts as criminal acts.  Consequently, there is no impediment to the government conducting criminal investigations to detect, apprehend and prosecute those who plan or execute terrorist attacks upon the people of the United States.

 The Justice Department immediately appealed the ruling of the FIS Court, and the case is currently before a special court of appeals. 

How Will We Know if the Government is Spying on Us?

 The second development in the wake of the Patriot Act involves provisions of the act that enforce total secrecy regarding the occurrence of surveillance or equivalent seizure of records, e.g. library circulation or book sale information.  A gag order will accompany court orders directing such surveillance and neither the target of the surveillance nor anyone beyond those directly involved in compliance with the order, may be told that the surveillance has taken place. 

 In August, The American Booksellers Foundation for Free Expression, the Electronic Privacy Information Center, and the American Civil Liberties Union filed a request, under the Freedom of Information Act in an attempt to learn how many subpoenas have been issues to bookstores, libraries and newspapers under the provisions of the Patriot Act.  This request followed upon the efforts of the House Judiciary Committee, in June of this year, to obtain the same information from the Justice Department, only to be told by Assistant Attorney General Daniel Bryant that the information was confidential and would be turned over only to the House Intelligence Committee.  Subsequently, the Judiciary Committee chair reported that he had received some of the information requested, but that it was classified and hence he couldn’t reveal it to the public.

The Justice Department and the FBI told the ACLU, on September 3, that they would respond to their request for information, but none was received.  Consequently, on October 24, the ACLU and the other named organizations, together with the Freedom to Read Foundation, filed a Freedom of Information Act lawsuit to force the Justice Department to account for its use of the surveillance powers it acquired under the Patriot Act.  Among the items of information sought by the ACLU in its suit is how many times the government has directed a library, bookstore or newspaper to produce "tangible things," e.g. the titles of books an individual has purchased or borrowed or the identity of individuals who have purchased or borrowed certain books. The library community awaits the results of this suit with great interest.