November 2, 2011


In Defense of the Patriot Act (Amitai Etzioni, November 1, 2011, National Interest)

The most important provisions of the Patriot Act seem to meet the criterion of reasonableness.

Phones: Before the Patriot Act was passed, authorities had to obtain a court's permission to tap a phone, but the warrant had to be "particularized" to a given instrument, reflecting the days when most people had just one phone. Cell phones made this narrow rule obsolete. The Patriot Act changed this requirement to attach warrants to a suspect, rather than to one of his instruments in particular. It merely allowed the law to catch up with technological development.

Libraries: Critics have been outraged by the right of the government to search the computers of public libraries. Actually, the term "library" is not mentioned in the act. The bill authorizes searches of "books, records, papers, documents and other items... to protect against international terrorism or clandestine intelligence activities." Critics singled out libraries because such searches evoked more public outrage than if one referred to the actual wording of the bill. While critics argued that this measure would or could have a chilling effect, this observer, at least, is unaware of credible evidence to support this claim.

Homes: The "sneak and peek" clause has been particularly vilified. The act grants authorities the right to search a home without notifying the owner for a period of days. But how long is enough? Russ Feingold favored seven days; Republicans in the House wanted 180 days. But there was little discussion of the grubby details of conducting such a search. How long does it take to de-encrypt a PC? To translate messages? To find collaborators? Clearly, some delay seems reasonable. This provision was amended in 2005 to detail that notification must be provided within 30 days (unless the facts of the case justify a longer delay, which must be overseen by a court and consists of periods of 90 days).

E-mail: Another reasonable new measure changed search warrants from local to national when dealing with the Internet. E-mail often is stored remotely on the servers of Internet service providers (ISPs).

Posted by at November 2, 2011 6:28 AM

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