In the grand scheme of terrorism, which is more terrifying? Not knowing what the bad guys are reading or knowing for certain theyre reading your credit card statement?
In a dichotomy that would be ironic anywhere on Earth except Washington, your legislators are busily deciding whether the thorniest information disclosure provisions of the USA Patriot Act—that lasting testament to reactionary fear and anger—should be kept beyond their expiration date. Meanwhile, marquee information purveyors, including some on contract with the government such as ChoicePoint and Lexis-Nexis, are hemorrhaging personal data.
There ought to be a law.
Congress this week continues its spring-fling reconsideration of the sweeping power afforded law enforcement in the wake of the Sept. 11, 2001, terror attacks to, among other things, seize confidential customer records from businesses without showing probable cause. Among those of chief concern to the technology crowd, the dreaded Section 215 of the Patriot Act forces ISPs and others—notably booksellers and librarians—to turn over records to the FBI even when theres no evidence that the subjects of the search are involved in a crime.
Its admittedly hard to raise public hackles over ISPs, bookstores and libraries. But the bland setting of these searches aside, weve suffered a fundamental shift in the way our government and its agents are allowed to go poking around in our business. What the Patriot Act lacks in drama it makes up for in smoldering outrageousness.
Section 215 is one of several Patriot Act provisions that were scheduled to expire at the end of this year. The so-called sunset clause was the diminutive voice of reason in the cacophony that consumed the Capitol in the wake of 9/11.
U.S. Attorney General Alberto Gonzales now says the provisions could use a tweak. But make no mistake, he wants these powers—torn from the Constitution and turned over to law enforcement—to live forever.
In the flurry of investigations, arrests and detentions that followed 9/11, youd expect Patriots proponents to argue that the distasteful provisions of the act had, at least, helped keep us safe from terrorists, especially those looking to buy “Catcher in the Rye” from Amazon.com.
But by Gonzales own admission, Section 215 has never been invoked to gather data from a library or bookseller. While he uses that fact to illustrate the restraint law enforcement has shown with its newfound powers, its equally sufficient evidence that the constitutionally questionable abilities arent needed at all.
“If it hasnt been used, then I question why we need it,” said bookstore owner Ryan Coonerty, who also serves on the Santa Cruz, Calif., City Council and teaches a legal studies course at the University of California, Santa Cruz. “Youd think that if they werent using it, they wouldnt be putting up such a fight against librarians.”
You would think that, wouldnt you?
Others in government go further than Gonzales. FBI Director Robert Mueller last week suggested the Patriot Act needs more than mere renewal. Hes asked for a significant expansion of his organizations subpoena authority.
“In renewing those provisions scheduled to sunset at the end of this year, Congress will ensure that the FBI will continue to have the tools it needs to combat the very real threat to America posed by terrorists and their supporters,” Mueller told a Senate subcommittee. “In addition, by giving the FBI administrative subpoena authority, Congress will enable the FBI to be more efficient.”
Section 215 isnt the tech sectors only concern, either. Sections 209, 212 and 220 lump together several types of electronic communications—voice mail and e-mail, for instance—that had been treated as legally separate. The provisions also lower the barriers to disclosure for law enforcement seeking a peek at such data.
Meanwhile, the epicenter of the Patriot Act debate remains the American Bar Associations source blog on the matter, at www.patriotdebates.com. As haggling over the act continues into summer, look for the list of arguments on either side of the debate posted here to grow.
E-mail eWEEK Executive Editor/News Chris Gonsalves at firstname.lastname@example.org.