If there's one honor I cherish more than being an actual dyed-in-the-khaki-wool Eagle Scout, it's being named an enemy of the state on Attorney General John Ashcroft's new propaganda site, Preserving Life & Liberty. (One way you know immediately it's propaganda is that it uses a quote from the Declaration of Independence, in a ye-olde-tyme font, as a banner on every single page on the site.) It turns out that I'm one of those rat bastards who, as Ashcroft once famously put it, "scare peace-loving people with phantoms of lost liberty." Hi, mom!
The site is part of the attorney general's pathetic attempt to whip up support for the idiotically named and widely reviled USA PATRIOT Act—an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." Other Ashcroft activities have included his highly publicized (and satirized) national tour to promote the PATRIOT Act and a would-be sequel. Your tax dollars at work. At least time spent on this public relations mystery tour is time Ashcroft can't spend prosecuting medical marijuana users and pornographers.
Along with Reason Associate Editor Jesse Walker, I show up in Preserving Life & Liberty's section of "stories and articles" that carry the government's water by castigating critics of PATRIOT as freakazoid lunatics who, in the words of the sagacious Des Moines Register, "tend to see bogeymen, or black helicopters, where there are none."
Scroll down far enough and you'll come across an excerpt from a June 2, 2003 National Review story in which Ramesh Ponnuru avers, "[M]ost of the concerns about Patriot are misguided or based on premises that are just plain wrong."
(As a side note, I'd like to give a rave review to Ponnuru's positively lurvly spasm of journalistic solipsism just yesterday on National Review's endlessly entertaining staff blog, The Corner—in which he answers for all time the question of whether anyone can hear you throw a hissy fit in cyberspace. "It would," wrote Ponnuru, "be nice if someone at Reason were to acknowledge the magazine's own repeated errors of fact in describing the Patriot Act, which I have mentioned in NR." Indeed, it would have been nice if anyone at National Review had seen fit to bring such "errors" to our attention when they appeared months ago in that fine publication, a standard practice when slagging—er, citing—other journos; while I and my crew read widely and conscientiously [especially about ourselves], we do occasionally miss an issue of the magazine that is about to publish a collection of President Bush's war speeches.)
Libertarians have been particularly exercised about Patriot's green light for "spying on the Web browsers of people who are not even criminal suspects"—to quote Reason editor Nick Gillespie. This is a misunderstanding of Patriot, as George Washington University law professor Orin Kerr has demonstrated in a law-review article. Before Patriot, it wasn't clear that any statute limited the government's, or even a private party's, ability to obtain basic information about electronic communications (e.g., to whom you're sending e-mails). Patriot required a court order to get that information, and made it a federal crime to get it without one.
Kerr believes that the bar for getting a court order should be raised. But he notes that Patriot made the privacy protections for the Internet as strong as those for phone calls and stronger than for mail. Patriot's Internet provisions, he concludes, 'updated the surveillance laws without substantially shifting the balance between privacy and security.
Yet it's Ponnuru who misunderstands. The immediate question is not how PATRIOT amended existing legal procedures (more on that in a minute), but whether it allows the government to delve into personal records, including Web use, of people who may or may not be charged with a crime. As my colleague Jacob Sullum pointed out recently, Section 215 of the act plainly allows this.
It is also misleading to suggest that PATRIOT somehow strengthens civil liberties by beefing up privacy protections for the Internet. In this, let me defer to Cindy Cohn, the legal director of the Electronic Frontier Foundation, whose October 2001 analysis of the PATRIOT Act remains an invaluable work. Cohn's comments come from an e-mail to me. Now granted, EFF is packed with precisely the sort of civil libertarians who drive the Des Moines Register and National Review to distraction, but I suspect most readers will find Cohn's take on that matter notably light on black helicopters and bogeyman and heavy on common sense and persuasion. And remember you read it here, because this sort of talk isn't getting airtime on Ashcroft's Preserving Life and Liberty site. Writes Cohn:
Here's the deal. Before the Patriot Act there was a theoretical disagreement between civil liberties types and the government about what standard would apply to government real-time surveillance of web activities like searches. The feds argued informally what Prof. Kerr states—that there was no requirement of any court order because the information wasn't "content" and the lower level statute, pen/trap, didn't apply either because it is essentially limited to telephone calls (there was also a disagreement about the treatment of e-mail headers).
The civil liberties folks argued that internet searches are indeed content, just like the 'subject' line on an e-mail (which the govt admits is content in its internal manuals), and so a wiretap order was required. The basic argument is that if the government can tell that you are searching for information about fertilizer or cancer drugs, or following links to specific news stories or blogs, the government knows much more about you than they do if they just have a listing of the phone numbers you call and that call you, which is all they get with pen/trap orders on telephone calls.
There were no cases on the issue, so it was up for grabs. As far as we know, the government had never tried to get real-time information about a web surfer from an ISP prior to the passage of the Patriot Act. We on the civil liberties side thought we had a good chance of convincing a court that this information is 'content' for purposes of the wiretap laws, invoking a much higher standard, or of creating a newer standard with more protections for websurfing than pen/trap but still less than the wiretap act protections.
Patriot took that option away. It made clear that pen/trap orders are all that is required. It is a higher degree of protection than some government attorneys thought they could get away with, but it is lower than what many civil libertarians thought a court would do if asked. And of course it is a much lower standard than what most Americans think they have as privacy protection when they are surfing online. As you note, it does not require that the government demonstrate that you are a suspect, nor does it provide any substantive judicial review prior to issuance.
So I think you're correct in what you say and we were correct in our alert. Patriot did ensure that the government doesn't need to prove you are a suspect before they can do real-time surveillance of your online web-surfing activities.
Given this background…it's not really tenable to say that the public somehow gained MORE protections through Patriot simply because prior to Patriot some government attorneys thought they would win an argument that internet searches weren't content if the matter were brought before a judge. Prof. Kerr is a former federal prosecutor, by the way. I have a lot of respect for him, but here he is putting forth the opinions of the prosecutors.
Instead, I think it's correct to say that as a result of Patriot, the public lost the chance to argue that their web searches were 'content' and so a wiretap was required, or to argue for some middle standard between the wiretap act and pen/trap. Instead, the government got a clear green light to surveil us under the lowest level of court protection–the pen/trap statute.
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