Zero Reassurance

The crucial snooping powers that have never been used

According to Attorney General John Ashcroft, all the complaints regarding Section 215 of the USA PATRIOT Act are much ado about nothing. Literally.

In a recent memo to FBI Director Robert Mueller, the attorney general said he had decided to correct misconceptions about Section 215, which authorizes the FBI to demand "any tangible thing" upon certifying to a secret court that it's relevant to a terrorism investigation. "The number of times Section 215 has been used to date is zero," Ashcroft said.

Well, doesn't everyone who worried about the privacy implications of Section 215 look silly now? Sure, the FBI could use Section 215, with no meaningful judicial supervision, to secretly scrutinize the private records of innocent people. So far, though, it hasn't.

This is the sort of reassurance we've come to expect from Ashcroft. A few days before he finally agreed to reveal how often Section 215 had been used, he condemned the provision's critics for stirring up "baseless hysteria."

By Ashcroft's account, crazy alarmists were trying to convince the public that the FBI was staking out libraries to "ask every person exiting the library, 'Why were you at the library? What were you reading? Did you see anything suspicious?'"

Actually, one of the critics' main points was that you'd never know if the FBI snooped through your records, because the people required to provide them are forbidden to talk about it. If the feds approached you directly, at least you'd know they were curious, and you could decline to answer their questions.

Ashcroft said the government "has no interest in your reading habits. Tracking reading habits would betray our high regard for the First Amendment. And even if someone in government wanted to do so, it would represent an impossible workload and a waste of law enforcement resources."

Notice that Ashcroft did not deny that the PATRIOT Act authorizes the government to monitor your reading habits (along with many other private aspects of your life). He just said the government has no interest in doing so.

All the government wants to do, Ashcroft assures us, is catch the bad guys, and if you've done nothing wrong you have no cause to be concerned—presumably because government officials never waste resources, make mistakes, or act maliciously. In other words: Trust us.

But the way the Justice Department has handled concerns about Section 215 and other aspects of the PATRIOT Act does not inspire trust. It says the new surveillance powers are not really new, and they're necessary to prevent terrorist attacks; people are wrong to fear FBI snooping, and they have no right to expect their records to remain private; talking about how Section 215 has been used would compromise national security, except when the attorney general decides it's politically prudent; the powers are absolutely crucial to the war on terrorism, and they've never been used.

One reason for that may be that the government is making liberal use of another PATRIOT Act provision with even looser requirements. Under Section 505, the Justice Department, including FBI field offices, can issue "national security letters" demanding telephone, Internet, credit, and bank records. This power has been used enough times in the last two years to fill a five-page, blacked-out list obtained by the American Civil Liberties Union under the Freedom of Information Act.

As with Section 215, anyone subject to such orders is forbidden to talk about them, and the people whose records are examined may be completely innocent. The government need not allege, let alone show probable cause to believe, that they are involved in terrorism.

Although Section 215 requires the FBI to seek an order from the Foreign Intelligence Surveillance Court, the court seems to have little or no discretion in granting such requests. National security letters, by contrast, involve no outside review at all.

Section 215 is broader than Section 505 in at least one respect. It covers "any tangible thing" held by anyone, which presumably could include the PC on your desk, the diary in your night stand, the records in your doctor's office, lists of people who visit particular Web sites, and the membership rosters of religious or political organizations.

With its recent proposal for administrative subpoenas in terrorism cases, the Justice Department wants to combine the breadth of Section 215 with the unilateral authority of Section 505. It seems determined to provide a basis for people's hysteria.