In Thursday’s Senate Judiciary Committee’s markup of a bill to reauthorize the Patriot Act, Senator Patrick Leahy tried to insert an amendment. The amendment would allow the government to obtain records of book sales that do not meet the Constitution’s requirement that there be probable cause to believe the target has committed a crime. Instead, Leahy’s amendment would substitute a standard lower than the Constitution’s standard but higher than the current standard of the Patriot Act. If Leahy’s amendment passed, in order to get book sales records the government would have to demonstrate its investigation pertains to either to the activities of a known or suspected foreign agent or terrorist, or to individuals in contact with or known to such a suspect.
Republicans on the Judiciary Committee voted against Leahy’s requirement for the government to demonstrate relevance to a terrorism or spying suspect. They’d have the Patriot Act stay as it is, allowing the government to obtain records of book purchases when there is no indication that the target is a terrorist or spy.
Why? Republican Senator Jon Kyl made himself perfectly clear in committee debate: the Patriot Act is used when the government doesn’t know who is and who isn’t a terrorist. The collection of records on our purchases of books is carried out in order to generate leads that don’t exist by finding out who in America is interested in what sort of books.
Senator Kyl remarked:
How does the law enforcement official know in advance, before he sees the order from the bookseller, that it includes the book? That is, how do you prove the standard that is required in this amendment just to obtain the record? Remember, we’re just obtaining a record of something. There’s no expectation of privacy….
We’re really missing something basic here. What law enforcement is trying to obtain at the early stages of an investigation are leads. They’re trying to figure out if somebody might have engaged in the activity that they have to go to a judge to prove is relevant to an investigation of terrorism. They don’t know what he bought! They don’t know what book he checked out. Or they don’t know who checked out the book or bought the equipment.
They can get a warrant later, to meet the standard to convict somebody in court, they will have gathered all these leads because they will have figured out what he did purchase or what book he did check out and so on. Prior to a preliminary investigation they don’t know these things.
First comes the fishing expedition to find out who has read what books, and later comes the search warrant for other things with book records used to provide the basis of that warrant. And unless you missed it, Jon Kyl doesn’t believe that you have any expectation to keep private from the government information about what books you read. And just in case you think Senator Kyl might have committed a slip of his tongue in this regard, allow me to quote him a few moments later declaring the same position unequivocally:
There is no expectation of privacy. Nobody believes that a library record or a sale over the internet is a private record where there’s an expectation of privacy.
Republican Senator Orrin Hatch concurred during the same markup meeting:
Records held by third parties, such as bookseller records, are not entitled to a reasonable expectation of privacy.
Do you think the government has the right to find out what books anybody in America reads, even if there’s no reason to believe they’re connected in any way to spying or terrorism? Jon Kyl and Orrin Hatch do. They’d like the government to conduct fishing expeditions through America’s reading records to identify the buyers of the wrong sort of books. These are your representatives on Capitol Hill, and this is what they are working so hard to defend.