House Vote on the Patriot Act:
A big item in the news today is that the House of Representatives voted to block the part of the Patriot Act that allows the government to get library and book store records. I'm having a hard time figuring out exactly what the House voted on — as usual, the press coverage is devoid of the details needed to tell you what actually happened — but as best I can tell the actual issue was a bit narrower, and the vote is likely to be mostly symbolic.

  It seems that the bill approved by the House would block federal funding for any effort to use Section 215 of the Patriot Act to obtain records from libraries or bookstores relating to actual book purchases or borrowing. I'm not sure if this would actually stop Section 215 from being used in such contexts, as I don't know enough about the appropriations process to know how directly the funding question links to the practice. More broadly, it's my understanding that the bill would still allow Internet records to be obtained from libraries and bookstores under Section 215, and would still allow records of libraries and bookstores to be obtained under traditional criminal authorities and also under other provisions of FISA beyond Secton 215. Finally, it helps to keep in mind that this is just a House vote. It seems unlikely that the Senate will go along with this, and the President's promised veto if this passes means it is not likely to make it into legislation (something that I assume the House members knew when they voted on it). Still, an interesting development. Stay tuned.
Sigivald (mail):
Interesting, but really of no note at all.

House members get to score easy points by voting to prevent the government from doing something it has not, to my knowledge - and DOJ's own reports, last I heard, ever done.

Can't really fault it, of course, since the power sure doesn't look necessary, and a grand jury subpoena, as I understand the issue, can still get those same records if it's needful.

At the same time, though, I've never understood what the big deal was supposed to be about, anyway. The State might find out what books I checked out from a public library? A state-run public library? ... So? (Likewise a bookstore; if they can convince the FISA judge that bookstore purchases are somehow relevant to a national security investigation, I just don't see the problem. I have no rational or legal grounds to think that book-buying or book-checking-out are so specially protected that they're different from any other records of activity.

Call me, activists, when the State tries to tell me I <I>can't</i> read or buy the book, or the mere fact of buying/reading a book becomes criminal. As it is, it sure looks like all it can do is help build a case for probable cause for further warrants or to corroborate [or the opposite] some claim or other about someone's activity. The harm is not evident.)
6.16.2005 1:29pm
Rob Lyman (mail) (www):
Yeah, I'd consider my phone records and credit-card records--which, if I understand the text of 215 correctly, are subject to its provisions--much, much more private than what I checked out from the library. I never understood the fuss.
6.16.2005 1:34pm
Anderson (mail) (www):
I would suppose there's a chilling effect. If I want to read up on the intellectual background of the current terror movement, say ("intellectual" in a very neutral sense), but I fear that I will be placed on some government watch list as a result, then I might be discouraged from reading same.

Especially if the same geniuses who go around arresting innocent guys with the same names as terror suspects, are the ones deciding which books are "suspicious."

Remember, the President's lawyers have argued that he, and only he, is the judge of who is an "enemy combatant." If the FBI looks at my reading list, decides I'm an enemy combatant, and ships me to Gitmo, what legal recourse do I have, according to the arguments made in the Padilla case?

"But the U.S. would never do such a thing." You know, that argument just isn't as persuasive as it used to be.
6.16.2005 1:47pm
Maybe someone can answer this:

Does section 215 permit the state to make a blanket request for records pertaining to *every* customer of a given library/cc company/bookstore/etc in one fell swoop? Or does it require the govt to cherry-pick one customer at a time?
6.16.2005 2:12pm
JacobS (mail):
Do people even have a reasonable expectation of privacy in their library book records? I'm no fourth amendment expert, but does this part of the PATRIOT act really even give the government any new powers? I seem to recall from Constitutional criminal procedure class that the government needs no warrant to look at your bank records — so why would they need a warrant to look at your library records?
6.16.2005 2:19pm
Anderson (mail) (www):
The difference between bank records and book records "smells" like a First Amendment issue ... but while we have a right to free speech, does that include listening/reading?

Can the government allow X to speak but make it illegal for anyone to listen? I'm imagining one of the (obnoxious) "campus free speech zones" with a perimeter about it which no one not "speaking" in the zone is allowed to enter.

On the face of it, apparently not. As for the press, it would be a bit odd to say "you're free to print your newspaper but we can forbid anyone to read it." Maybe that's the better analogy. Still, if there were any cases on this back in Con Law, I was asleep that day ...
6.16.2005 4:31pm
BTD_Venkat (mail) (www):
The Tattered Cover case from the CO Supreme Court looks at this issue. The Kramerbooks decision is instructive as well. The court in Tattered Cover quoted Justice Douglas:
Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears. Then the spectre of a government agent will look over the shoulder of everyone who reads. . . . Fear of criticism goes with every person into the bookstall. The subtle, imponderable pressures of the orthodox lay hold. Some will fear to read what is unpopular, what the powers-that-be dislike. . . . [F]ear will take the place of freedom in the libraries, book stores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press.
This doesn't answer the questions (and it's far from clear) what the effects of the section 215 and the House amendment are . . . .
6.17.2005 4:28am
JacobS (mail):
"The difference between bank records and book records "smells" like a First Amendment issue ... but while we have a right to free speech, does that include listening/reading? "

I wasn't arguing that it was a First amendment issue -- but rather asking if it was a Fourth amendment issue (i.e. is this an illegal search if done without a warrant?). If I recall correctly, the test for whether something is a 'search' is whether a person has a reasonable expectation of privacy in the area being searched.

It has long been established by the courts (again, if I remember correctly), that the government can look at your bank records without a warrant because you have no reasonable expectation of privacy in your bank records and it is therefore not a search.

Aren't library records the same? In other words, even without the PATRIOT act, couldn't government look at your library records without a warrant, simply because you have no reasonable expectation of privacy in your library records?

I would appreciate it if a Fourth amendment person could set me straight. Thanks!
6.17.2005 10:19am