Defending the Patriot Act

In today’s Washington Post, Heather MacDonald defends the Patriot Act against some of the criticisms that have been leveled against it. She’s not quite as eloquent as the Trunk was on the radio yesterday, but is still well worth reading.
To me, the weirdest attack on the Patriot Act is the decunciation by “civil libertarians” of Section 215 of the Act, which allows the FBI to seek permission from a federal court to allow it to subpoena records from a third party if they are relevant to a terrorism investigation. The ACLU says that this lets the FBI “spy on a person because they don’t like the books she reads, or because . . . she wrote a letter to the editor that criticized government policy.” Librarians have been particularly exercised about Section 215 because they fear the government may use its subpoena power to find out what books a suspect has checked out of a library.
Put aside for a moment the fact that the FBI has to make a showing of probable cause and get an order from a federal judge before such a subpoena can be served under Section 215. (With such a court order, forget about your library card: any police department in the country can search the nightstand beside your bed, under longstanding law.) What strikes me as bizarre about this focus on subpoenaing records in the possession of third parties is that those who complain about the Patriot Act don’t seem to understand that this happens all the time.
As a lawyer, I do it constantly. Hardly a day goes by that I don’t instruct my staff to serve a subpoena on a third party to obtain records in connection with a lawsuit I am handling. If you think your library records (or bank records, or any other records) are somehow sacrosanct and safe from prying eyes, you’re badly mistaken. Either I or any of the other tens of thousands of lawyers in the United States can require the library or other third party to turn them over to us. And we don’t need a court order, either, unlike the FBI. And the records don’t have to be relevant to the case I’m working on; I just have to think that they could somehow lead to the discovery of evidence that might be relevant.
Of course, to obtain records from a third party I have to serve notice on the adverse party in my lawsuit, and they can challenge the subpoena in court if they want to. But the idea that it is somehow an invasion of our civil liberties to allow the FBI to obtain copies of records from third parties via subpoena in the course of a terrorism investigation–with a court order, no less–is ridiculous.
BIG TRUNK adds: Section 215 itself provides that the government cannot seek a warrant under it based solely on the exercise of a person’s First Amendment rights. The ACLU campaign against it is a contemporary version of the big lie.

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