< The Other Provision


Friday, October 02, 2009

BROOKE GLADSTONE: From WNYC in New York, this is NPR's On the Media. I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob Garfield. When The Patriot Act was first signed into law in October, 2001, certain parts had sunset provisions, in other words, expiration dates. Three sections of the act are supposedly headed into the sunset in December, and this week Congress opened a discussion about whether to let them lapse. The President wants them renewed and so, discussion not withstanding, they probably will be. Some civil libertarians say the first three expiring provisions aren't all that important anyway. There haven't been many complaints about them. Instead, activists want to use the coming months to argue that another part of The Patriot Act, the part involving National Security Letters, ought to be reformed. National Security Letters give the FBI the power to obtain records from companies such as banks or Internet service providers about their customers. And when a company receives a National Security Letter, it cannot tell anyone but its own lawyers. Greg Nojeim is the senior counsel at the Center for Democracy and Technology. He says that a debate on National Security Letters is far more important than arguments over the sun-setting provisions of The Patriot Act.

GREG NOJEIM: National Security Letters don't sunset, but there’s strong evidence that they've been abused. The Department of Justice’s own Inspector General issued two reports showing, for example, National Security Letters were issued for investigations that hadn't even been opened. Well, you can't get a National Security Letter unless you’re conducting an investigation, and yet the government issued these letters anyway.

BOB GARFIELD: I understand more than 200,000 of them were presented by FBI agents since 9/11. Is that right, 200,000?

GREG NOJEIM: Yes. It used to be that you couldn't issue one of these letters unless you could show that the records pertain to a person who is tied to a foreign terrorist or to another agent of a foreign power. Most Americans aren't that, so the government could not use that power to get records about Americans. The Patriot Act took that requirement away and said that you can get a National Security Letter whenever the information you seek is relevant to an investigation. Well, that opened the floodgates. Now most National Security Letters seek information about Americans, and the Inspector General found that now many National Security Letters seek information about people two or three steps removed from the actual target of the investigation. The FBI is looking into information about me, but it says that information about you, because we've had contact, is relevant to that investigation of me, and then it says information about someone you've had contact with is also relevant.

BOB GARFIELD: What I'm having trouble understanding is why the expiration of the three provisions that not all that many people have a quarrel with is occasion to review the question of National Security Letters, the authorization for which is not expiring in December.

GREG NOJEIM: One of the provisions that expires, Section 215, the so-called Library Records Provision, is closely related to National Security Letters. Both enable the government to get business records. Section 215 is broader, but requires a court order. National Security Letters are for a narrower class of records, including email to/from information, of numbers you dial on a telephone. Now, Congress is taking the occasion of the expiration of Section 215 to examine National Security Letters, which apply to another class of business records.

BOB GARFIELD: It’s not hard to understand why the Bush administration would acquiesce to the wholesale use of this kind of investigative tool. It’s a little harder to understand why the allegedly transparency-friendly Obama administration would stand by the abusive use of National Security Letters. What has the Obama administration had to say about this? Why aren't they all over this?

GREG NOJEIM: So far they've said nothing. The Obama administration has only said that it favors reauthorization of the three expiring provisions and that it would consider amendments to those provisions.

BOB GARFIELD: When a law like this is in place, you kind of have to trust the Justice Department and the FBI not to overreach. Do we have any data to suggest that we can trust Attorney General Eric Holder and the FBI under Obama than we could trust Attorney General Gonzales and the FBI under George Bush?

GREG NOJEIM: The degree of trust that anyone has in any particular administration ought not to drive what’s in the law. The question is, what will Congress do, knowing that it can't know who will be in the White House 10 years, 20 years from now when this power is still being used.

BOB GARFIELD: Well Greg, thank you very much for joining us.

GREG NOJEIM: My pleasure.

BOB GARFIELD: Greg Nojeim is Senior Counsel at the Center for Democracy and Technology. More disheartening news came this week from those who track the Obama administration’s commitment to press freedom. The New York Times reported that the White House engaged in some behind-the-scenes maneuvering to gut a proposed federal shield law that’s been gathering steam in the Senate. Shield laws, on the books in most states, protect reporters from being forced to reveal their sources. A national shield law has never made it through Congress, but in recent weeks it looks like the legislation finally had a chance, that is, until Wednesday, when The New York Times reported on the administration’s proposed changes to the bill. Specifically, the White House is concerned that a shield law would impinge on its ability to track down leakers, and it wants judges to give the administration the benefit of the doubt about what exactly constitutes a threat to national security. That’s kicked the bill further down the road, some speculate, forever.