The blogs are full of complaints that the Senate Judiciary committee didn't do enough last week to restrict the Patriot Act when it voted to extend several of the Act's provisions until 2013. On the whole, that's good news. Hostility to the Patriot Act long ago came unmoored from the actual substance of the Act, which was always more a cleanup than the wholesale rebalancing of rights and government authority that its opponents have portrayed. See, for example, the balanced set of essays I put together for the ABA.
The Obama Justice Department seems to have worked hard to achieve a reasonable outcome, while at the same time agreeing to new restrictions, audits, and reports intended to satisfy at least some critics.
In the process, though, a new and dangerous amendment was introduced by Sen. Feingold and adopted by the committee (almost alone among the left-leaning amendments). This amendment requires minimization procedures for data obtained by the FBI under a national security letter. In particular, it requires the FBI to "to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information" consistent with the need to disseminate foreign intelligence (emphasis added). If the data isn't foreign intelligence, it must be anonymized "unless the identity of the United States person is necessary to understand foreign intelligence information or assess its importance."
These concepts are borrowed from FISA, where the sensitivity of the intelligence (intercepts of the content of communications) and the relatively limited reporting of those intercepts makes it possible to anonymize data during dissemination. But NSLs mostly obtain transactional data with a limited expectation of privacy. And the data is often valuable only when combined with other data, or when searched by another agency that has encountered the same person in another context and wonders what else is known about the person.
For example, let's suppose DHS questions someone at the border because he's returning from a long unexplained stay in Pakistan and DHS asks whether he's ever transferred funds to a terrorist front in that country. He says no. If the FBI has used an NSL to get financial records in the course of a separate investigation, and these records contradict the returnee's story, that's a big deal, and it will turn the routine questioning into an investigation.
How can DHS find out about the data obtained by the FBI unless it has routine access to the information? And if it has access, how can we say that the minimization procedures "prohibit access" to the information?
It's possible to square this circle by adopting a broad interpretation of "foreign intelligence" and of what it takes "to understand or assess the importance of the intelligence." But bureaucratic interests are going to work against adopting such a broad interpretation. A broad interpretation of those terms will require DOJ and FBI to take risks -- they'll be criticized by Judiciary, maybe sued, and abused in the media. And the beneficiaries of that broad interpretation won't be the FBI; it will be DHS and the National Counter Terrorism Center and the CIA. Why should DOJ and FBI take risks to help those other agencies?
In fact, it's worse than that. At the margin, DOJ and FBI are always engaged in a bit of competition and conflict with all of those agencies. Limiting access to information is a time-honored bureaucratic weapon in such conflicts. So, if only the FBI can search NSL databases, the FBI has to be cut in on any investigation that it might like to be part of, just so its rivals can see NSL data. In my example, if DHS can only check the statements of the returnee by going through an FBI agent, it will have to explain what it's found, and the FBI will be able to take over the case right away if it wants to. That's a bureaucratic advantage. Of course it also adds greatly to the complexity of getting the NSL data, and at the margin the DHS questioner may not have the time or inclination to go through a complex process just to check the returnee's statement.
So, the Feingold amendment creates both a legal and a bureaucratic incentive to set up "minimization" procedures that will make it hard for agencies other than the FBI to review data quickly and easily, even in a counterterrorism context. That's how the wall was built, brick by brick, in the 1990s.
My questions are whether (1) DOJ signaled that it could live with the Feingold amendment and (2) whether other agencies that need access to NSL data got a chance to weigh in. I'm guessing that the answers are (1) yes and (2) no. But if the answer to either question is no,this amendment needs to be dropped.
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