Over at Marginal Revolution, Alex Tabarrok has a post suggesting that the Patriot Act is a bad law because it has been used to do some dumb things. Here is the post, which was recently Instalinked:
Yeah, I feel much safer now
The USA Patriot Act has so far been used to fine PayPal $10 million dollars in an effort to crack down on internet gambling, it’s been used to intimidate a New York artist’s collective, and most recently to shut down a Stargate fan site.
As an occasional Patriot Act rumor debunker — tough work, but someone’s got to do it — I thought I would check out Tabarrok’s claims and see which if any of the claims held up. The result: 1 out of 3, at least by my standards. Unless I’m missing something, only one of the three claims is a fair statement supported by the facts.
Let’s start with the first claim, that the Patriot Act was used “to fine PayPal $10 million dollars in an effort to crack down on internet gambling.” This is true, as detailed in this story. Specifically, the Patriot Act rewrote a criminal statute codified at 18 U.S.C. 1960, primarily in an effort to disrupt terrorist financing schemes. The new version of the law makes it a crime to operate a “money transmitting businesses,” when the “transmission of funds . . . are known to the defendant to have been . . . intended to be used . . to promote or support unlawful activity.” Because some kinds of online gambling are illegal, and PayPal apparently did business with certain illegal gambling sites, PayPal was fined. (Why fine PayPal, you ask? From the perspective of law enforcement, because the sites themselves are offshore and therefore out of reach. Basically, the government used the amended law to block PayPal from aiding illegal conduct.)
Let’s turn to the next claim, that the Patriot Act “has been used to intimidate a New York artist’s collective.” This one is a stretch. According to the story that Alex links to, the FBI opened a bioterrism investigation after an investigation of a person who fell unconscious led to the discovery of lots of biology equipment in an art professor’s home. Evidently, the FBI suspected that the equipment might be part of a biological weapons lab, and opened an investigation. I gather that the alleged “intimidation” is that the grand jury issued subpoenas ordering three artists to testify, and the artists reported that they were very intimidated by the subpoenas (understandably, I might add). What’s the connection to the Patriot Act? The Patriot Act expanded the bioliogical weapons statute; if the biology equipment had been a bioweapons lab and not an art project, possession of the bioweapons lab would have violated the Patriot Act. Was the Patriot Act “used to intimidate” anyone here? I don’t think that’s a fair conclusion. First, it seems that the law enforcement officers opened an investigation in good faith; second, the officers could have used another criminal statute as the predicate offense to open an investigation if the Patriot Act had not been passed.
Alex’s third claim is that the Patriot Act was used “to shut down a Stargate fan site.” As best I can tell, this is simply false. Alex links to this story, but the story tells us that a defendant who ran a website was charged with criminal copyright violations. These charges have nothing to do with the Patriot Act; nothing in the Patriot Act was used to shut anything down. As best I can tell, the only alleged connection to the Patriot Act is investigative. The site claims that in the course of investigating the defendant for copyright violations, “the FBI invoked a provision of the USA Patriot Act to obtain financial records from his ISP.” It’s not clear what this means, but it may refer to amendments to a 1986 law, 18 U.S.C. 2703, that clarified existing law on the scope of what information government officials can subpoena from ISPs. It’s hard to tell. Either way, however, the power to obtain financial records from an ISP is as old as ISPs; it isn’t a power created by the Patriot Act.
So, at least as I see it: (1) it is true that a provision in the Patriot Act was used to crack down on Internet gambling, leading to a civil settlement; (2) it is not fair to say that the Patriot Act was used to intimidate a group of artists; and (3) the Patriot Act was not used to shut down a fan site.
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