The Patriot Act Threatens Freedom of the Press

Reporters Committee for Freedom of the Press

Following the September 11, 2001, terrorist attacks on America, Congress passed the Patriot Act, which President George W. Bush signed into law on October 26, 2001. This law makes it easier for the government to conduct wiretapping and other intelligence gathering in an attempt to prevent terrorist attacks. In the following selection the Reporters Committee for Freedom of the Press describes the law and examines its impact on press freedoms. According to the committee, the law allows the government to require journalists to turn over their notes upon demand, potentially forcing them to reveal the identities of secret sources. In addition, journalists' communications could come under FBI surveillance without their knowledge.

The Reporters Committee for Freedom of the Press is a nonprofit organization whose main mission is to provide free legal assistance to journalists confronted with threats to their First Amendment rights.

Primary Source Text

The USA PATRIOT Act's impact on newsgathering is still largely unknown nearly two years after Congress rushed to enact the law.

Journalists should be concerned about certain provisions of the law, which grant broad new powers to government agents to investigate terrorism.

Source

The Reporters Committee for Freedom of the Press, "How the War on Terror Affects Access to Information and the Public's Right to Know," www.rcfp.org, September 2003. Copyright © 2003 by The Reporters Committee for Freedom of the Press. Reproduced by permission.

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.

Secret Court Orders

The USA PATRIOT Act amended certain provisions of Foreign Intelligence Surveillance Act (FISA), thereby expanding the government's ability to conduct surveillance of foreign powers and agents of foreign powers in the United States.

Enacted in 1978, FISA set forth procedures governing foreign intelligence investigations and established a secret court that approves or denies the use of electronic surveillance by the government for foreign intelligence purposes.

The Foreign Intelligence Surveillance Court's 11 judges, who come from different federal circuits, meet twice a month in Washington, D.C., with three judges always available in Washington. The USA PATRIOT Act increased the number of FISA judges to 11 from the previous seven. If the court denies an application for surveillance, the government may appeal to the Foreign Intelligence Surveillance Court of Review, a panel of three federal judges appointed by Chief Justice William Rehnquist.

Secrecy permeates the process of obtaining the court order. The FISA court that issues the surveillance order meets and decides its cases in secret. As a result, the public is left in the dark about the number of FISA search warrants issued against U.S. citizens, who are never informed of the surveillance and are not represented before the court. Not only is the public uninformed, but Congress is kept in the dark about how the FISA court interprets provisions of the USA PATRIOT Act drafted by Congress. The FISA court is not required to reveal its legal opinions, thereby establishing a secret body of case law unprecedented in American jurisprudence. . . .

Under Section 215 of the USA 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?

Theoretically, the USA PATRIOT Act allows a newsroom search. However, 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.

Nothing in the USA PATRIOT Act expressly preempts the Privacy Protection Act.

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. 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 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.

The Library Association Complains

While Congress was drafting the USA PATRIOT Act, the American Library Association objected to the potential intrusion into its 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 USA 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. And the American Civil Liberties Union filed suit challenging the constitutionality of Section 215 in July 2003, arguing among other things that the law violates the First Amendment by allowing the government to easily obtain information about reading habits and expressive activities that will be "chilled" by the threat of a federal investigation, and by imposing a gag order on the third party, such as a library, newspaper or broadcaster, whose records have been taken under such an order.

No one knows exactly how often the USA PATRIOT Act has been used to obtain records, although libraries already have received visits from FBI agents. 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.

The House Judiciary Committee, which oversees how the Justice Department enforces the USA PATRIOT Act, asked the Justice Department for a more detailed accounting. 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?"

The Press Is Not Exempt

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 "[making] 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 USA PATRIOT Act, they were unaware of how the Department of Justice was interpreting these provisions before the FISA court.

In response to this secrecy, Senators Leahy, Grassley and Specter joined together to introduce Senate Bill 436, the Domestic Surveillance Oversight Act of 2003. The bill requires that the rules and procedures of the FISA courts be shared with the U.S. Supreme Court and the Intelligence and Judiciary committees of the Senate and House. In addition, the attorney general must submit an annual public report detailing portions of the applications and opinions of the FISA courts that contain significant legal interpretations of FISA or the constitution. "This type of disclosure . . . will prevent secret case law from developing which interprets both FISA and the Constitution in ways unknown to Congress and the public," said Senator Leahy in a Feb. 25 statement made upon introduction of the bill.

The bill also requires annual reporting on the aggregate number of FISA wiretaps and surveillance orders against Americans and requests for information from libraries.

According to Leahy: "This bill does not in any way diminish the government's powers, but it does allow Congress and the public to monitor their use. We cannot fight terrorism effectively or safely with the lights turned out and with little or no accountability. It is time to harness the power of the sun to enable us to better win this fight."

The bill was referred to the Judiciary Committee, but no action had been taken by late August [2003].

Electronic Surveillance

As long as a reporter is not an "agent of a foreign power," the USA PATRIOT Act does not make it easier for the government to wiretap a reporter's phone. As was the case before the law passed, investigators still must have probable cause to believe a person has committed a crime before they can bug that person's phone.

However, it is now easier for investigators to eavesdrop on a terrorism suspect's telephone calls and e-mail communications with so-called "roving" wiretaps. Because of that change, reporters may run a heightened risk of having their telephone or e-mail conversations with sources intercepted by government agent if those sources are deemed "agents of a foreign power." . . .

What Does This Mean for Journalists?

Lee Tien, senior staff attorney at the Electronic Frontier Foundation, described this scenario:

A reporter contacts a foreign student or a member of a foreign political organization who would meet the definition of "agent of a foreign power" under the Foreign Intelligence Surveillance Act.

Unknown to the reporter, the source is the subject of a roving wiretap authorized under the USA PATRIOT Act.

Because the roving wiretap gives government officials the power to eavesdrop on the suspect's phone and e-mail communications, the government is hearing and recording the reporter's conversation with the source.

As was the case before the USA PATRIOT Act passed, government investigators could not wiretap the reporter's phones and e-mail accounts unless they had probable cause that the reporter had committed or was about to commit a crime.

But by contacting someone who is the target of foreign intelligence surveillance, the reporter might be vulnerable to having a pen register or trap-and-trace device placed on the reporter's phone and e-mail accounts. Remember, the government agent has to certify to a secret court only that the information likely to be obtained would be relevant to an ongoing foreign intelligence investigation. Once approved, the devices give investigators a list of every e-mail address and phone number the reporter is contacting, although not the contents of those communications.

And because all of this goes on in secret, the reporter may never know that his or her communications have been under government surveillance.

How Likely Is This to Happen?

No one knows. In their June 2002 letter to Ashcroft seeking information on how the Justice Department was implementing the USA PATRIOT Act, Reps. Sensenbrenner and Conyers of the House Judiciary Committee asked how many times the department had obtained permission for roving wiretaps, pen registers and trap-and-trace devices. The congressmen did not ask how many times journalists had been caught up in such investigations.

Bryant, the assistant attorney general who responded to the letter, did not provide the information to Sensenbrenner and Conyers. Instead, he wrote them that the information on roving wiretaps was classified; he did not respond at all to the question on pen registers and trap-and-trace devices but indicated that a response would come later.

Reporters do have a measure of protection in the Attorney General's Guidelines for Subpoenaing Members of the News Media, which have been in place since the Nixon administration. Those guidelines, which do not carry the force of law, require that news media subpoenas identify particular relevant information that cannot be obtained any other way. The guidelines also call for negotiations between the Justice Department and the reporter when the agency seeks a subpoena against the news media.

The Bush administration has shown that it will ignore those guidelines if it believes the reporter might have information that could help a criminal investigation.

The Justice Department violated the guidelines in 2001 when it subpoenaed the telephone records of Associated Press reporter John Solomon. The agency was trying to discover the reporter's confidential source for information about a now-closed investigation of Sen. Robert Torricelli (D-N.J.).

Solomon did not learn until late August 2001 about the subpoena, which covered his phone records from May 2 to 7, 2001. The Justice Department did not negotiate with Solomon or his employer, did not say why the reporter's phone records were essential to a criminal investigation, and did not explain why the information could not be obtained any other way.

Also, the Justice Department ignored a provision in the guidelines that allows no more than a 90-day delay in notifying a reporter about a subpoena. The department missed that deadline in the Solomon case.

The Solomon subpoena was issued before September 11 and before Congress enacted the USA PATRIOT Act. But it could be a bellwether event in gauging the willingness of the Bush administration to use journalists as a tool of surveillance.