February 12, 2004 | Commentary on Legal Issues
Our politicians trade strident accusations about everything from budget deficits to intelligence failures. Our troops face daily dangers overseas. And always, we live with the threat posed by terrorists who want to kill as many Americans as quickly as they can.
So let's not go out of our way to worry needlessly, the way so many misguided souls who are hyperventilating over the USA Patriot Act are.
On its Web site, the American Library Association warns, "sections of the USA Patriot Act are a present danger to the constitutional rights and privacy rights of library users."
Michigan's state librarian, Christie Pearson-Brandeau, told the Detroit Free Press, "we worry about the FBI coming in and demanding to know who checked out what books and visited what sites on library computers."
And on Jan. 16, the Concord Monitor reported the following exchange between Democratic presidential candidate Dennis Kucinich and some elementary school students:
"If the FBI says, We want Jimmy Smith's library list, then the librarian has to give them that list without telling Jimmy Smith. 'No way' a student hollered. 'Yes, way,' Kucinich replied."
Well, not quite "way."
Kucinich should know the most important aspects of the USA Patriot Act only apply to terrorist investigations, which should put Jimmy Smith's mind at ease.
Of course, before the Patriot Act, the government would have needed both to obtain a warrant and to show probable cause that a crime had been committed before it could look at most financial records, library records, phone logs, etc. Now, under Section 215 of the Patriot Act, if the government is involved in an authorized investigation of international terrorism - and only under such circumstances - it needs simply a judge's warrant to see those records.
This makes sense. Before Sept. 11, there were too many restrictions on the FBI's intelligence gathering. For example, federal agents wanted to search the laptop belonging to Zacarias Moussaoui after his arrest in August 2001. But their warrant was denied, based on the Foreign Intelligence Surveillance Act that was then in effect.
If the agents had been able to search Moussaoui's hard drive, they'd have found a flight simulator computer program, software describing the Boeing 747 and extensive information about crop dusters.
Today, under the Patriot Act, they'd be able to perform that search, and possibly save lives, without violating Moussaoui's civil rights.
But while the Patriot Act gives the government important - and limited - new powers, it's actually being applied only rarely. For example, despite all the complaints from librarians, Attorney General John Ashcroft announced last fall that the federal government has never used Section 215 to search library records. Not once. It's difficult to understand how Section 215 could be considered abusive of rights when it's never been used.
But instead of being glad that the law is being judiciously applied, the American Library Association's executive director said that the lack of warrants proves the law isn't needed. "They have demonstrated that there is no need to change the tradition of protecting library patrons' reading records," Emily Sheketoff sniffed.
Wrong. What the federal government has actually done is prove that it won't abuse Section 215. But the fact it's never been used doesn't prove it's not needed. As in the Moussaoui case, there may well come a time when we need information, and we'll be glad we can get it with a judge's warrant.
We should keep a careful eye out to make sure the Patriot Act isn't abused, just as we should keep a careful eye on everything the federal government does. But many librarians are stressing out over nothing. Next time, they should do a little research before they get worked up over a sensible reform.