Safety in Dullness

Relax--your records are too boring to interest the FBI.


Attorney General Alberto Gonzales recently assured the Senate Judiciary Committee the Justice Department "has no interest in rummaging through the library records or the medical records of Americans." This is pretty much the extent of the limits imposed by the USA PATRIOT Act on the FBI's ability to peruse your personal records: It can do so only if it wants to.

But if the FBI should one day take an interest in such potentially sensitive matters as your reading habits, health, finances, travel, gambling, Internet activity, firearm purchases, or pay-per-view orders, there is little in the PATRIOT Act to stop it from satisfying its curiosity. Regardless of how many times the privacy of innocent people has been compromised so far—a hard question to answer, given the secrecy that shrouds the government's use of the anti-terrorism law's snooping provisions—the potential for abuse remains a serious concern.

Under Section 215, which will expire at the end of the year unless Congress decides to renew it, the FBI can demand the production of "any tangible things," a breadth of coverage that makes you wonder why the law's critics have chosen to focus so obsessively on library records. The law says the Foreign Intelligence Surveillance Court (which operates in secret) "shall enter" a Section 215 order as long as the records are "sought for" a terrorism or espionage investigation that is not based "solely" on a U.S. citizen or resident's exercise of his First Amendment rights.

Another provision of the PATRIOT Act that allows secret seizures of private records has received less attention, although it includes even fewer safeguards, has been used more often, and is not scheduled to expire. Section 505 expands the use of national security letters (NSLs), which order the production of records without even cursory judicial review.

Unlike Section 215, which seems to cover everything that could conceivably be turned over to the government, Section 505 pertains only to Internet records, credit reports, and financial records. But in 2003 Congress expanded the definition of "financial institutions" covered by NSLs to include any business "whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters," including casinos, insurers, real estate brokers, travel agents, pawn shops, car dealers, and jewelry stores.

Both Section 215 and Section 505 can be used to obtain records of people who are not suspected of terrorism, and both prohibit the recipient of an order from discussing it with the subject of the records or anyone else. On their face, they do not allow the recipient to challenge the order in court; indeed, the ban on discussion seems to preclude even talking to an attorney.

At the same Senate hearing where Attorney General Gonzales sought to assuage Americans' concerns about the privacy of their records, FBI Director Robert Mueller called for administrative subpoenas that would combine the worst elements of Section 215 and Section 505: They could be issued unilaterally by the FBI, and they could cover any records it deemed relevant to a terrorism investigation.

That prospect should worry anyone who values privacy and freedom, for reasons explained by U.S. District Judge Victor Marrero in a decision last fall. Marrero ruled that NSLs issued to Internet service providers violate the Fourth Amendment's prohibition of "unreasonable searches and seizures" because there is no meaningful opportunity to challenge them. He also said they violate the First Amendment by imposing an indiscriminate, perpetual gag order on anyone required to produce records.

Marrero noted that NSLs also could infringe on the First Amendment rights of Internet users by, for example, demanding the identities of bloggers who anonymously criticize the government or of people who receive messages through a political campaign's e-mail system. And depending on how an ISP interpreted a demand for "transactional information," he said, the government could gain access to complete e-mail headers, including the subject lines that are supposedly beyond the reach of NSLs.

The wider the range of information that can be demanded, the more serious the First Amendment implications. According to accounts collected by the American Civil Liberties Union, the threat of investigation resulting from Section 215 fishing expeditions already has inhibited people "from publicly expressing their political views, attending mosque and practicing their religion, engaging in political activity, donating money to legitimate charitable organizations, and visiting particular websites."

Apparently they did not get the word that the Justice Department has no interest in their records.