Patriot Act Uproar
The library profession, led by the national organization
the ALA, is in an apparent uproar over provisions of the US Patriot Act. The ALA is pushing this issue -- trying to make it appear as if the United States government has new authority to obtain personal records, including library records. Two of the items highlighted in the debate are the process of obtaining search warrants and the obligation of citizens and the press to provide information about terrorist acts.
If search warrants are what are issued under this Act this is an "ex parte" proceeding. But search warrants are almost always issued "ex parte", in
ANY matter. The governmental authority rarely is involved in any type of hearing.
An adversarial hearing prior to the issuance of a search warrant would defeat the purpose of the warrant. In every criminal case where there is probable cause a search warrant is acquired, not a subpoena. Probable cause has always been the standard. If a search warrant is later found to have been issued incorrectly then that evidence may be
thrown out -- which is one of the reasons I think judges will be better arbitrators of this. Judges hate to overturned and they do not want their judicial record tarnished.
However, probable cause has not and is not the standard for ALL searches. Right now the police can search someone pursuant to a
Terry stop and frisk on nothing more than reasonable suspicion. Again, one must put search and seizure into context.
As for who may be targeted for search pursuant to the Act, that is nothing new either. You do not have to be the criminal himself to be subject to a search. Probable cause of possessing information leading to a criminal arrest will suffice.
By my understanding, under federal law, the press has never been exempt, either constitutionally or in constitutional jurisprudence, from criminal procedure because he may have a good story. States (including TN) have passed laws protecting a journalist's sources, but it is by no means constitutional law. Freedom of the press keeps the
government from saying that you
can't publish a story. I have seen several legal arguments stating that if a journalist has information leading to a known terrorist organization (or other criminal acts that may harm people) that evidence should be discoverable.
Does the Patriot Act have problems? Yes it does, as would any law passed so quickly (the Act was signed into law on October 26, 2001 -- just a few weeks after the terrorist attacks on US soil). But this law was passed by the vast majority of Congress (House and Senate) and by both sides of the aisle. The Bill was passed in the Senate by a vote of 99-1, with then-Majority Leader Thomas Daschle urging unanimous passage. The House passed the bill by a vote of 357-66. The various components of the law have been in place for a number of years. The Patriot Act is an attempt, at least in my reading of it, to bring all of these components under one umbrella for a certain type of crime --terrorism.
To learn more about the Patriot Act visit these sites:
USA PATRIOT ACT , text of Act via
Thomas, Legislative Information on the Internet a service of the
Library of Congress.
Electronic Frontier Foundation
Electronic Privacy Information Center