Stone Revisits the Patriot Act

Geoffrey R. Stone

July 8, 2005

A little more than a month after Sept 11, 2001, Congress enacted a complex piece of emergency legislation with more than 150 sections designed to grant new powers to federal officials to enable them to protect the security of the United States.

The act was hastily drafted by the Department of Justice and presented to Congress and the nation by Atty. Gen. John Ashcroft as vital to the nation's safety. The Bush administration voiced barely veiled threats that anyone who questioned the legislation was unpatriotic and would be accused of aiding the terrorists. Even the name of the act was intended to send that intimidating message. Not surprising, the act sailed through Congress with no hearings, no debate, no deliberation and almost no opposition.

In this emotionally charged atmosphere, it was inevitable that the act would sacrifice civil liberties. Aware of this danger, Congress included a sunset provision for the most controversial sections of the act, ensuring that they would automatically expire on Dec. 31, 2005, unless Congress re-enacted them. The sunset provision was added in the hope that it would protect us from repeating the mistakes of the past, for throughout our history we have had a consistent pattern of overreacting to the fears and anxieties of wartime and excessively restricting civil liberties in the name of national security.

Against this background, and in light of the mood surrounding the passage of the USA Patriot Act, it was predictable that in at least some of its particulars the act would reach too far. Although the Patriot Act is a far cry from the worst excesses of our past, and although most of its provisions are defensible, it is implausible to believe that any law enacted in such circumstances would be perfect.

4 years later

Yet here we are, four years later, as the sunset provision is about to kick in, and President Bush insists that the act must be re-enacted lock, stock and barrel. According to the president, not a single provision, not a single clause, not a single word of the Patriot Act went too far in its limitation of civil liberties. Unlike John Adams, Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt, Bush apparently believes he is infallible in his ability to strike the right balance between national security and individual freedom.

Against this claim of perfection, consider Section 215 of the act, which authorizes executive branch officials to demand records from businesses and other institutions and organizations without any show of probable cause. This includes not only business records, but personal medical records, bank records, educational records, and library and bookstore records.

At first blush you might think this would violate the 4th Amendment, which prohibits "unreasonable searches and seizures" and ordinarily requires a showing of probable cause. But the Supreme Court has held that the 4th Amendment applies only when the government intrudes upon an individual's "reasonable expectations of privacy." For example, suppose you walk down the street and a police officer follows you to observe your behavior. Is this a "search"? The court has held that it is not, because you have no "reasonable expectation of privacy" when you voluntarily expose things to the public. In this example, that conclusion makes sense.

What privacy?

But suppose now that the government wants to seize and examine your financial records from your bank. Surely, you have a "reasonable expectation of privacy" in your personal finances. Guess again. Because you voluntarily disclose your financial dealings to complete strangers--the bank's employees--you have no "reasonable expectation of privacy" in those records, and the government can scrutinize them without showing that you have done anything wrong.

It gets worse. When library and bookstore records are involved, you would seem to have not only a privacy interest, but also a 1st Amendment interest in shielding your choice of reading material from the eyes of prying government officials. Surely, government officials cannot track what books you read without any show of justification. Just think of the implications. If FBI agents can create a file on you merely because you buy a book on, say, the history of terrorism, and this file may turn up sometime in the future when you apply for a government job, you will think twice before making such a purchase. But under Section 215 of the Patriot Act, this is precisely what federal officials are authorized to do.

Perhaps in the immediate aftermath of Sept. 11 it seemed necessary to grant this power to federal officials. Terrorists do use libraries and buy books. But now it is four years later, and how does the Bush administration argue for re-enactment of this authority? It says it hasn't used Section 215 to obtain library or bookstore records. That is certainly comforting. But if the government hasn't needed this power even once in the past four years, how is it essential to the national security? With this in mind, the House of Representatives voted overwhelmingly in June to limit Section 215 in its application to libraries and bookstores. Even many Republicans supported this legislation. But Bush has announced that he will veto any effort to limit any of the provisions of the Patriot Act, and this one in particular.

Whether the application of Section 215 to libraries and bookstores violates the Constitution is not the issue. Reasonable minds can differ on this. But the Constitution provides only the minimum protection of individual liberty in our society. For the most part, we rely on common sense, a commitment to traditional American values, and a decent respect for the fundamental freedoms of the American people to protect our liberty. We deserve better than a thoughtless insistence that whatever was enacted in the throes of Sept. 11 must be forever written into law. That much we should know from some of the sorrier chapters of our own history.

Geoffrey R. Stone is a law professor at the University of Chicago and the author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.