The problems with both the Patriot Act and the debate surrounding it are well illustrated by Section 215, popularly known as the "library records provision."
Section 215 says that the government can obtain a court order for the disclosure of any business records upon the mere assertion that they are relevant to a terrorism investigation.
James X. Dempsey is the executive director of the Center for Democracy & Technology. He previously served as assistant counsel to the House Judiciary Subcommittee on Civil and Constitutional Rights.
Supporters of the law would have you think it's an all or nothing proposition: unfettered government access or total privacy for terrorists. But that's not how it works (or should work) in America. Checks and balances can be — and in this case, should be — built into the system.
Of course, the government needs access to records in terrorism investigations — in rare cases, even to library records. Most Patriot Act critics recognize that Section 215 and the law's other provisions have some justification. They should not sunset.
Instead, the issue before Congress and the American people is what standards, oversight and accountability should apply to intelligence investigations. Such guidelines and a measure of judicial review will not prevent the government from doing its job. In fact, a properly constructed framework of rules will make the government more efficient and effective.
The Bush administration often compares Section 215 orders to the grand jury subpoenas available in criminal cases. But intelligence investigations are special, in ways that make them potentially dangerous to personal liberties.
First, intelligence investigations are broader than criminal inquires. They are not limited by the criminal code and can focus entirely on legal activities. Investigators can collect information about political activities — a chilling line of inquiry in any democracy.
Intelligence investigations are also conducted in much greater secret than criminal cases, even perpetual secret. When a person receives a grand jury subpoena, he can publicly complain about it. Section 215 orders are secret forever.
Finally, in a criminal investigation, a prosecutor knows that at the end of the process, his actions will all come out in public. If he went on a fishing expedition, he will face public scrutiny and even ridicule. He will have to explain his actions. That's a powerful constraint. But most intelligence investigations never result in a trial, and the government's tactics are shielded from public challenge.
Since intelligence investigations are broader and more secret, and are not subject to after-the-fact scrutiny, we need to build in protections at the beginning. That is where Section 215 and other provisions of the Patriot Act fall short.
Under 215, the government does not have to identify in any way the persons whose records it is seeking. Instead, it can seize entire databases and mine them for suspicious conduct, which may be perfectly innocent.
The judicial approval under 215 is not serious. The judge is presented with no factual basis for the request and has no discretion to turn it down.
Furthermore, unless the target is actually charged with a crime and the records are used against him at trial, he is never notified that his records have been disclosed to the government. The innocent person whose records have been disclosed and scrutinized by federal agents never knows of it.
These flaws can be corrected. Members of Congress on both sides of the aisle have recommended two changes to the Patriot Act that will ensure the government has access to the information it needs, but with protections against overreaching:
The first is to require the government to justify its demands — to explain to a judge the facts on which it bases its suspicions. The case doesn't need to be airtight. It can be as simple as "This phone number was found in the address book of a suspected al Qaeda member. We want to know in whose name the phone is registered." As it stands, the judges involved are mere rubber stamps. This would give them something on which to base their decisions.
The second safeguard is to require the government to specify with some particularity the person or persons whose records it is seeking. Right now, the government can mine an entire database under Section 215 without ever naming a target. This has the potential to make an investigation little more than a fishing expedition. Instead, the government should use Section 215 to pursue specific leads.
The DOJ's answer to all of the criticism is to allow recipients of a 215 order to challenge it in court, but that's not sufficient, because most businesses (with the exception of libraries and maybe bookstores) have no incentive to do so. The businesses have immunity for complying, and their customers are never notified, so the path of least resistance is to comply. That's why we need up-front protections in the form of meaningful judicial approval.
For Section 215 and other provisions of the Patriot Act, our message is simple: "Fix it, don't nix it." We can and must fight the war on terrorism while maintaining our democratic principles, such as meaningful judicial controls on invasive tactics.