"It is still unclear how or when the FBI's expanded wiretapping and warrantless search powers will affect journalists, but the Justice Department has shown that it intends to use its powers aggressively, even making clear that a law barring newsroom searches is trumped by the USA PATRIOT Act when it comes to terrorism investigations. "
The USA PATRIOT Act's impact on news gathering is still largely theoretical nearly four years after Congress rushed to enact the law. No newsrooms are known to have been searched and apparently no documents have been taken from reporters under the law -- although those subject to such a search and seizure would be prohibited from talking about it.Nevertheless, journalists should be concerned about certain provisions of the law, which grant broad new powers to government agents to investigate terrorism and make previous statutory protections for newsrooms almost irrelevant when it comes to terrorism investigations.Congress enacted the law with little debate just six weeks after the terrorist attacks on the World Trade Center and the Pentagon. President Bush signed the USA PATRIOT Act into law on Oct. 26, 2001.The awkwardly named law -- the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 -- expands the FBI's ability to obtain records through secret court orders. The law also gives government investigators greater authority to track e-mail and telephone communications and to eavesdrop on those conversations.
Although aimed at trapping terrorists, those provisions of the law could ensnare journalists and compromise their ability to report on the war on terrorism. Journalists should be aware of this law and future amendments and proposals that attempt to expand government surveillance powers and increase secrecy surrounding the government's efforts to combat terrorism.Some of the most controversial parts of the law, including the sections of most concern to journalists, are set to expire at the end of 2005. With critics calling for those sections to be allowed to expire and the Bush administration asking for them to be made permanent, bills have been working through both houses of Congress that will make most of the provisions permanent and extend two others for another five years.
"How do FISA and the USA PATRIOT Act affect journalists?
Under Section 215 of the PATRIOT Act, the FBI can seek an order requiring the production of "any tangible thing" -- which the law says includes books, records, papers, documents and other items -- from anyone for investigations involving foreign intelligence or international terrorism. The person or business receiving the order cannot tell anyone that the FBI sought or obtained the "tangible things." For journalists, the big question is whether the provision for secret court orders will allow a newsroom search for "any tangible thing" related to a terrorism investigation. Could a government agent use the law to gain access to a reporter's notes and confidential sources?The short answer is that the PATRIOT Act does allow the search of newsrooms in connection with terrorism investigations. Another federal law, the Privacy Protection Act of 1980, spells out when newsroom searches are forbidden and the limited exceptions in which they are allowed. However, it only applies to criminal investigations, and the FBI has made it clear that the PATRIOT Act's application to any "investigation to protect against international terrorism or clandestine intelligence activities" does not subject it to the limits of criminal investigations.
The Privacy Protection Act states that, "notwithstanding any other law," federal and state officers and employees are prohibited from searching or seizing a journalist's "work product" or "documentary materials" in the journalist's possession, as part of a criminal investigation. A journalist's work product includes notes and drafts of news stories. Documentary materials include videotapes, audiotapes and computer disks.
Some limited exceptions under the Privacy Protection Act allow the government to search for or seize certain types of national security information, child pornography, evidence that a journalist has committed a crime, or documentary materials that must be immediately seized to prevent death or serious bodily injury.
Documentary materials also may be seized under the Privacy Protection Act if there is reason to believe that they would be destroyed in the time it took government officers to seek a subpoena. Those materials also can be seized if a court has ordered disclosure, the news organization has refused and all other remedies have been exhausted.
The Privacy Protection Act gives journalists the right to sue the United States or a state government, or federal and state employees, for damages for violating the law. The law also allows journalists to recover attorney's fees and court costs.While Congress was drafting the PATRIOT Act, the American Library Association objected to the potential intrusion into library patrons' personal information, including reading habits and the Web sites they viewed. The group described the law as a threat to patrons' privacy and First Amendment rights. In response, the library association posted guidelines on its Web page advising libraries to avoid creating and retaining unnecessary records.
On Jan. 29, 2003, the library association passed a formal resolution objecting to certain provisions of the PATRIOT Act and warned that "the activities of library users, including their use of computers to browse the Web or access e-mail, may be under government surveillance without their knowledge or consent." Likewise, on Feb. 10, 2003, the American Bar Association adopted a formal resolution that calls for congressional oversight of FISA investigations to ensure that the government is complying with the constitution and limiting improper government intrusion.
""Confusion over use and implementation""
It remains unclear whether or how often provisions of the PATRIOT Act have been used to obtain records, although libraries started reporting visits from FBI agents early on. The Associated Press reported in 2002 that of the 1,020 public libraries surveyed by the Library Research Center at the University of Illinois, 85 said they had been asked by federal or local law enforcement officers for information about patrons related to September 11. In June 2005, the American Library Association released the results of a survey that revealed that state and federal officials had asked librarians for information about their patrons 268 times since 2001, although it is unknown how many of these requests were made under provisions of the PATRIOT Act.
In September 2003, the Justice Department reported that it had never actually used Section 215, according to a confidential memo from Attorney General John D. Ashcroft obtained by the Washington Post and The Associated Press. Ashcroft said in the memo to FBI Director Robert S. Mueller III that he had decided to declassify that previously secret information because of his "concern that the public not be misled about the manner in which the U.S. Department of Justice, and the FBI in particular, have been utilizing the authorities provided in the USA Patriot Act."
However, in June 2004, The Washington Post reported that government documents disclosed to the ACLU under court order show that the FBI asked the Justice Department the previous fall to seek permission from a secret federal court to use Section 215, four weeks after Ashcroft said that part of the law had never been used. The memo did not indicate the nature of the search, whether the Justice Department ever asked the FISA court to approve the search or whether the court granted the request. The records do not indicate how many times the FBI has invoked Section 215 since October 2003.
The confusion over use of Section 215 can largely be blamed on the department's lack of cooperation with Congress, which prompted complaints of interference with congressional oversight.
The House Judiciary Committee, which oversees how the Justice Department enforces the PATRIOT Act, asked the Justice Department for a detailed accounting after the 2002 library survey was announced. On June 13, 2002, committee chairman Rep. F. James Sensenbrenner Jr. (R-Wis.) and ranking member Rep. John Conyers Jr. (D-Mich.) sent a list of 50 detailed questions to Attorney General John Ashcroft.
Question 12 asked: "Has the law been used to obtain records from a public library, bookstore or newspaper? If so, how many times?"
In a written response on July 26, 2002, Assistant Attorney General Daniel J. Bryant conceded that newspapers were not exempt from the secret court orders.
"Such an order could conceivably be served on a public library, bookstore, or newspaper, although it is unlikely that such entities maintain those types of records," Bryant wrote.
He declined to state the number of times the government has requested an order or the number of times the FISA court has granted an order. That information is classified, his letter said.
Senator Patrick Leahy (D-Vt.) again sought answers to this question and others after an oversight hearing in July 2002. Of the 93 questions posed by Leahy, 37 remain unanswered.
This type of stonewalling and secrecy was cited in a February 2003 interim report by Senators Leahy, Charles Grassley (R-Iowa), and Arlen Specter (R-Penn.) as "mak[ing] exercise of our oversight responsibilities difficult."
In addition, the interim report found that the refusal of the Department of Justice to disclose the legal opinions and operating rules of the FISA court "contributed to the deficiencies that have hamstrung the implementation of the FISA." Even though members of the Senate Judiciary Committee authored provisions in the PATRIOT Act, they were unaware of how the Department of Justice was interpreting these provisions before the FISA court.
In a bid to shore up support for the Act, the Justice Department unveiled extensive new details of its use of the Act on July 13, 2004, asserting that it has helped thwart al Qaeda plots and led to scores of criminal convictions since the Sept. 11, 2001, attacks, The Washington Post reported. According to a 29-page report to Congress released by Attorney General John D. Ashcroft, Justice Department terrorism investigations have resulted in charges against 310 people and have yielded 179 convictions or guilty pleas -- although not necessary on terrorism-related charges. The report says the expanded law enforcement powers of the PATRIOT Act were central to those cases.
In December 2004, Congress created the Privacy and Civil Liberties Oversight Board in response to a recommendation by the Sept. 11 Commission. President Bush delayed appointments to the five-member board for six months, and as of August 2005 the board had still not met for the first time.
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