This past semester, I took a course in comparative constitutional history that ended with a seminar paper on a constitution of our choice. I choose to write my paper on the Soviet Constitution of 1936, also known as the Stalin Constitution because of its chief architect and promoter. My goal in writing the paper was to try and figure out why a totalitarian dictatorship, as the Soviet Union certainly was by 1936, would bother putting a constitution together in the first place.
Surprisingly, the internet did not have enough to say about the Soviet Constitution of 1936 to write a paper with, so I went to my law library – which has an extensive section on Soviet law – and checked out fifteen books on the subject. Most of them had not been pulled since the 1970s.
When I came back to work after finishing the paper, I spoke with my mentor about the subject of the paper and about how proud I was of the fact that I went to an actual library and checked out some actual books for the first time since grade school. For checking out several books on Soviet communism and its patron saint, he jokingly wished me good luck the next time I tried to board a plane.
As right-wing media is always happy to point out, this administration is already run by a communist tyrant, so I doubt I have much to worry about with respect to my Stalinist reading record the next time I am unlucky enough to find myself at the airport.
But my mentor’s comment did make me wonder what about the USA PATRIOT Act actually makes it legal for the federal government to pull a person’s record of library checkouts.
How the government gets into your library records
Our story takes us to Section 215 of the USA PATRIOT Act. Laugh at the backronym of the law all you like, but it probably took more time to come up with the name than it did to get the Act put into law.
That’s because Section 215, like the rest of the USA PATRIOT Act was drafted and put before Congress within twenty days of the September 11th attacks. It is extraordinary that the 342 page document that became the USA PATRIOT Act was drafted within those twenty days. In fact, it is so extraordinary, that the text of the bill must have been sitting in a drawer somewhere in a government office for many years, waiting for an opportunity to be put into law.
In any event, Section 215 of the USA PATRIOT Act amends Title V of the Foreign Intelligence Surveillance Act of 1978 by amending Sections 501 through 503 of the act. It’s incorporated into federal law under 50 U.S.C. §1861, entitled “Access to certain business records for foreign intelligence and international terrorism investigations.” Pursuant to section (a)(1) of the statute:
The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
The application must be made to the Foreign Intelligence Surveillance Court, also known as the FISA Court after the Foreign Intelligence Surveillance Act of 1978 that authorized the court. It must include a statement of facts showing that there are “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities”, and relevance is presumed where the facts pertain to foreign countries, suspected agents of foreign countries, or individuals in contact with those agents.
If the application meets these requirements, part (c)(1) of the statute requires that “the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things.” In this respect, there is very little discretion, because once the government makes a satisfactory statement of facts, the court must approve some kind of release.
In light of frustration over the government’s reach into America’s libraries, the USA PATRIOT Improvement and Reauthorization Act of 2005, signed into law on March 9, 2006, scaled back this authority somewhat by limiting the federal government’s ability to delegate authority to make applications under Section 215.
(3) In the case of an application for an order requiring the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the Director of the Federal Bureau of Investigation may delegate the authority to make such application to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position). The Deputy Director or the Executive Assistant Director may not further delegate such authority.
This is what the structure of the FBI looks like:
Therefore, the rule of delegation may make it a little less likely that you’ll see random sweeps of your library history. But then again, it probably just means that the officials so named by the law will make applications on behalf of the people they oversee.
Section 215 doesn’t stop with library books. To collect the phone records it pulled from Verizon, the federal government goes before the FISA court and gets the same Section 215 orders, which are only increasing in regularity. When the government wants to go after a communications provider, Section 215 is one of the primary tools it uses. “Books, records, papers, documents, and other items” covers most everything in your life.
The rubber stamp is for your own good
So we now know that Section 215 of the USA PATRIOT Act is how the government can get into your reading history, among many other things. According to the Brennan Center for Justice, there were 21 applications for Section 215 orders in 2009, and 212 applications in 2012. None of the 2012 applications made in 2012 were denied. If this process sounds entirely ministerial, it is. Andrew C. McCarthy, an attorney and a senior fellow at the Foundation for the Defense of Democracies, explained more in a series of debates hosted by the American Bar Association:
Yes, Section 215’s judicial exercise is ministerial, but that does not make it unique or inconsequential. It is analogous to familiar pen register law, under which a judge must issue the authorization upon the request of criminal investigators, with no demonstration of cause. Why? Because our system is premised on separation of powers. Investigation is an executive function. The judicial role is not to supervise the executive but to protect U.S. persons against improper invasions of legitimate expectations of privacy. People do not have such expectations regarding the phone numbers they dial, thus a ministerial judicial role is appropriate: the order issues on the court’s power, but it is not the judiciary’s place to question bona fides of a co-equal branch carrying out its own constitutional function.
In other words, everything is fine. You can trust your government.
To equate the state-mandated thump of a rubber stamp court with the separation of powers envisioned by the Founding Fathers is to take a sledgehammer to the mantle of the legendary leaders who fought against the kind of rubber stamp ministerial government Mr. McCarthy describes in the first place. The separation of functions in a ministerial process with only one possible outcome does not constitute the separation of powers as it was envisioned after the Revolution.
The executive branch in America has never had an issue establishing its co-equal status with the judiciary because the executive branch has the power to back its initiatives – ultimately, through the pressure of armed agents. Instead, it is always the judiciary that must remind the executive of its co-equal status, because courts have only their independent judgment and the prestige accorded to them for the honorable exercise of this independent judgment. Eliminating that independent judgment leaves a court as nothing more than a superfluous salve for the conscience of people who would defend democracy by wearing away its basic foundations.
A gag rule for the 21st century
Perhaps the worst part of Section 215 is the gag rule that makes it illegal for Americans to reveal that the government has compelled them to provide documents or other tangible things.
No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.
The law makes it criminal for a librarian or any other person even to say that there has been a FISA request, without saying more about the nature of the request or the name of the target. This “gag rule” is an unjustified expansion of a special rule for wiretaps, and is contrary to the rules that have historically applied to government requests for records.
Forget whether this sort of thing constitutes a technical violation of the First Amendment – what about the spirit of republican citizenship itself? Sometimes these kind of laws are necessary to prevent people from becoming accessories to criminal activity, but anytime you tell Americans not to talk to other Americans on pain of penalty of law, you’re ever so slightly weakening the ties that bind us as a people together.
There are some possible alternatives when it comes to informing people – under the text of the statute, you might be able to do so backhandedly. For example:
But either way, we as a people cannot even begin resolve our own problems as individuals if we have no faith in our fellow citizens, and laws like this set us as Americans against one another in very subtle, but nonetheless very real ways. They gradually politicize institutions at every level, and as post-communist Eastern Europe has shown by comparison with Western Europe, this kind of institutionalized politicization makes it even more difficult to build and maintain democratic fundamentals. All of this eventually hurts American business as well.
The long-term impact of these laws is already here
So the USA PATRIOT Act is over a decade old. I thought about ending this piece with a stale appeal about how we as a people need to do something before these changes become permanent, but the truth is that for now they are as permanent as any other law. Last year’s revelations about the NSA show what happens when you institutionalize these practices – the government just goes farther and does more.
By now, we’ve all heard our share of jokes about the NSA. John Oliver did a good job taking over for Jon Stewart as guest host of The Daily Show back in 2013, and he probably told the best one.
“Mr. President, no one is saying you broke any laws, we’re just saying it’s a little bit weird you didn’t have to.” –The Daily Show’s John Oliver on the NSA spying scandal
This is where the Soviet Constitution of 1936 comes into play. The document is written in such a way that every chartered freedom – they’re all chartered by the state, as opposed to being self-evident – every chartered freedom is limited by its own language. When freedom of speech and of the press is guaranteed so long as it is exercised in “conformity with the interests of the working people,” and when the government defines itself as a government “of the working people,” then there is no freedom outside of the freedom to speak at the state’s direction. But in a lot of ways, the Soviet government really practiced what it promised in the 1936 Constitution. It’s just that when you parse the text, you can see that it effectively promised nothing short of dominance over every organ of society, public and state, by the Communist Party of the Soviet Union.
There’s no doubt that the brave citizens entrusted with keeping our country safe follow every word of Section 215. And there’s no doubt that the FISA court and its judges really believe in their work. But as Milton Friedman used to say, it is a great mistake to judge policies and programs by their intentions rather than their results. With respect to Section 215 and the USA PATRIOT Act as a whole, the text of the statute counts for more than good intentions. And the text of the statute creates a rubber-stamp process that accomplishes nothing. Good intentions are overrated.
The reference to the First Amendment in the law is particularly tragic, because at first, it appears to be a reasonable safeguard. But because this court has no independent judgment, and because there is no requirement for a showing of fact or evidence and there is no discretion provided for by the law, the reference to the First Amendment was probably made for public consumption alone. If a court is performing a ministerial function, then this law requires only that the authorities get their documents straight.
Either way, the issue of state surveillance in America is never going away. The War on Terrorism will probably continue forever, or at least until we get into an old-fashioned nation-versus-nation war against a major country somewhere outside of the Middle East.
America, unlike the Soviet Union, has always been relatively wealthy, and it will always be able to afford the dead weight economic loss that comes with extensive domestic surveillance. NSA surveillance costs $574 per year, or about 6.5¢ per hour, per citizen, per year, which is nothing to a government willing to spend millions on cruise missiles that are only used once, if ever. Severe domestic surveillance won’t go away on its own.
In fact, if there’s one lesson from all of this, it is that lawful processes can sometimes do more harm than unlawful practices. If the government had simply chosen to break the law for what they would surely say is our own good, people could at least be held to account for it. But by writing domestic surveillance into the law, we are all, through our marginally accountable elected officials, partially complicit with the USA PATRIOT Act through its continued existence. The resulting passivity when makes the law that much stronger.