Does This Justify a "Told You So" Yet?


So, one of the earlier Web pieces I wrote for Reason argued against PATRIOT Act apologists who thought civil libertarian "Chicken Littles" should shut up unless they could point to some way the powers it grants had been abused. The nature of the PATRIOT Act, I argued, made this an unfair burden of proof:

Of course, that's roughly what one should expect from a law distinguished by the amount of secrecy it imposes. [National Review Editor Rich] Lowry's demand amounts to: "Show me just one classified, top-secret abuse of power!" As such, the request is disingenuous at the very least. The American Civil Liberties Union (ACLU) filed a Freedom of Information Act request for information on the uses of PATRIOT powers last August, and was rebuffed. "It is literally impossible," observes ACLU staff attorney Jameel Jaffer, "to know in what contexts the government has used these powers unless they tell us of their own accord, which they have so far refused to do."

Well, a story in The Washington Post tries to present at least a rough picture of how the authority to demand records via National Security Letters has been used:

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters—one of which can be used to sweep up the records of many people—are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans. [….]

The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks—and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined. [….]

Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of any wrongdoing. Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect—a single telephone call, for example—may attract the attention of investigators and subject a person to scrutiny about which he never learns.

A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

Maybe that doesn't count as an "abuse," at least as far as PATRIOT apologists are concerned, in the sense that it all appears to be within the letter of the law. But what the article describes is a process by which law enforcement is just scooping up data, not just on their initial targets or suspects, but on the suspects' friends and friends-of-friends… or maybe just anyone who's been in any kind of contact with the suspect. And that sounds to me like the definition of a fishing expedition.