Freedom of Information Act Lawsuit Filed Against the Justice Dept Over Patriot Act

The American Civil Liberties Union, The American Booksellers Foundation for Free Expression, the Electronic Privacy Information Center (EPIC) and the American Library Association’s Freedom to Read Foundation have sued the Justice Department under the Freedom of Information Act in an effort to extract more information about the government’s application of the Patriot Act.

I covered the original suit back in August and wrote of Section 215 of the USA Patriot Act:

The FBI can walk into any bookstore or library with a search warrant, demand sales or lending records for anyone suspected of “international terrorism” or “clandestine activities.” The employee has no recourse but to turn the records over, then cannot discuss this activity with anyone other than his/her attorney. The House Judiciary Committee and representatives of booksellers want to know how many times this has happened. I’m not sure that the booksellers have any right other than courtesy to the information, but surely the House Judiciary Committee, with legal responsibility for overseeing the Patriot Act, does.

Again we see a near-paranoid aversion to divulging any information to anyone from John Ashcroft’s Justice Department – a condition that only leads others to a similar state of paranoia in others, with or without cause. Why give so-inclined people the opportunity to let their imaginations run wild? When people perceive a pattern of unwarranted secrecy, they suspect the worst. Ashcroft’s Justice has handled this general problem very poorly in both word and deed.

The ACLU has FAQs on Section 215 of the Patriot Act here, and the original request can be found here.

According to a statement today from the ACLU:

“The Justice Department conceded in early September that the information is of exceeding importance to the American public, but it nonetheless continues to stonewall,” said Jameel Jaffer, an attorney with the ACLU’s Technology and Liberty Program.

The records requested concern the government’s implementation of the USA PATRIOT Act, legislation that was passed in the wake of the September 11 terrorist attacks. By amending laws such as the Foreign Intelligence Surveillance Act (FISA), USA PATRIOT vastly expands the government’s authority to obtain personal information about those living in the United States, including United States citizens.

In a letter to the ACLU dated Sept. 3, the Justice Department agreed to respond to the FOIA request speedily, acknowledging that the request concerned “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” The FBI made similar promises. Yet to date, Jaffer said, neither agency has disclosed any records in response to the ACLU request nor stated which records, if any, it is going to disclose.

The ACLU and the Electronic Privacy Information Center filed the lawsuit as attorneys for their organizations and for the American Booksellers Foundation for Free Expression and the Freedom to Read Foundation, citing concerns that the new surveillance laws threaten the First Amendment-protected activities of librarians, library patrons, booksellers and their customers, and investigative journalists.

The FOIA request, which was filed on August 21, seeks general information about the use of new surveillance powers, including the number of times the government has:

Directed a library, bookstore or newspaper to produce “tangible things,” e.g, the titles of books an individual has purchased or borrowed or the identity of individuals who have purchased or borrowed certain books;
Initiated surveillance of Americans under the expanded Foreign Intelligence Surveillance Act;
Conducted “sneak and peek” searches, which allow law enforcement to enter people’s homes and search their belongings without informing them until long after;
Authorized the use of devices to trace the telephone calls or e-mails of people who are not suspected of any crime;
Investigated American citizens or permanent legal residents on the basis of activities protected by the First Amendment (e.g., writing a letter to the editor or attending a rally).

Some of the information was previously sought by the House Judiciary Committee, and last week Rep. James Sensenbrenner, Jr., (R-WI), the Chairman of the Committee, reported that he had received some of the information in classified form.

The Milwaukee Journal Sentinel reported on Sensenbrenner’s findings last week:

“I’m satisfied for now” that Justice officials have responded to Congress, Sensenbrenner said in an interview Wednesday. But he promised “more questions” in the future.

What do the Justice Department’s disclosures reveal about how the hotly debated USA Patriot Act has been used in the war on terrorism?

The department refused to make public some of its answers, saying the information is classified and would go instead to the intelligence committees of Congress.

One example: The department declined to say how many times the government had used its expanded authority under the law to obtain “roving” wiretaps on suspected individuals.

Nor would it say how many U.S. citizens had been subject to the new surveillance powers provided in the law.

In other cases, officials were more specific.

For instance, the Justice Department said that on 40 occasions, it had shared grand jury information involving foreign intelligence with other federal officials. Such intelligence sharing among different government agencies was liberalized under the new law.

Some of the department’s disclosures about its new powers are anecdotal.

One provision of the new law allows Internet service providers to disclose communications to the government if they believe they are saving someone from death or injury by doing so.

The department said that had happened “several times” but said it could not be more specific.

But it described one case in which a high school canceled classes and bomb-sniffing dogs went through the halls after someone claiming to be a student “posted a death threat to an Internet message board in which he singled out a faculty member and several students to die by bomb and gun.”

According to the Justice Department, the Internet provider, when the change in the law was explained, disclosed information that led to a student’s arrest. The student confessed to making the threats, said the department.

….Asked if the answers demonstrate to him that the government’s new powers are being used properly, Sensenbrenner said: “I can’t say for sure the act is not being abused. That’s why I fully intend right when the new Congress is seated . . . to draft another set of questions.”

Back to the ACLU release:

David Sobel, General Counsel to the Electronic Privacy Information Center, emphasized that the FOIA request does not seek any information that could compromise a terrorism investigation. “Much of the information that the Justice Department claims is classified consists of statistical information whose release could not possibly endanger national security or any other legitimate government interest,” he said.