Another Cave-In on the Patriot Act

Editorial

New York Times

February 11, 2006

The Patriot Act has been one of the few issues on which Congress has shown backbone lately. Last year, it refused to renew expiring parts of the act until greater civil liberties protections were added. But key members of the Senate have now caved, agreeing to renew these provisions in exchange for only minimal improvements. At a time when the public is growing increasingly concerned about the lawlessness of the Bush administration's domestic spying, the Senate should insist that any reauthorization agreement do more to protect Americans against improper secret searches.

When the Patriot Act was passed after Sept. 11, 2001, Congress made some of its most far-reaching provisions temporary so it would be able to reconsider them later on. Those provisions were set to expire last December, but Congress agreed to a very short extension so greater civil liberties protections could be added. This week, four key Republican senators — later backed by two Democrats — said that they had agreed to a deal with the White House. It is one that does little to protect Americans from government invasions of their privacy.

One of the most troubling aspects of the Patriot Act is the "gag order" imposed by Section 215, which prohibits anyone holding financial, medical and other private records of ordinary Americans from saying anything when the government issues a subpoena for those records. That means that a person whose records are being taken, and whose privacy is being invaded, has no way to know about the subpoena and no way to challenge it.

Rather than removing this gag order, the deal keeps it in place for a full year — too long for Americans to wait to learn that the government is spying on them. Even after a year, someone holding such records would have to meet an exceedingly high standard to get the gag order lifted. It is not clear that this change has much value at all.

The compromise also fails to address another problem with Section 215: it lets the government go on fishing expeditions, spying on Americans with no connection to terrorism or foreign powers. The act should require the government, in order to get a subpoena, to show that there is a connection between the information it is seeking and a terrorist or a spy.

But the deal would allow subpoenas in instances when there are reasonable grounds for simply believing that information is relevant to a terrorism investigation. That is an extremely low bar.

One of the most well-publicized objections to the Patriot Act is the fact that it allows the government to issue national security letters, an extremely broad investigative tool, to libraries, forcing them to turn over their patrons' Internet records. The wording of the compromise is unclear. If it actually says that national security letters cannot be used to get Internet records from libraries, that would be an improvement, but it is not clear that it does.

In late December, it looked as if there was bipartisan interest in the Senate for changing the worst Patriot Act provisions and standing up for Americans' privacy rights. Now the hope of making the needed improvements has faded considerably.