March 22, 2005Representatives from the FBI and the privacy community on Tuesday clashed over how provisions in a 2001 anti-terrorism law known as the USA PATRIOT Act are being used to access information.
"We at the FBI do not want your secrets, unless of course you are a terrorist or a spy," Valerie Caproni, general counsel for the FBI, said at a conference sponsored by the American University National Security and Law Society.
Caproni downplayed the controversy surrounding the law, which has been criticized as giving the government too much investigatory and surveillance powers. The act simply "changed the standard that we have to meet" in order to conduct certain investigations, she said.
Section 215 of the law has "generated the most complaints ... from the ACLU to librarians," she said. That section allows federal agents to access information such as book orders and reading records at libraries in connection with international terrorism investigations.
"We don't like the fact that librarians are upset," Caproni said. "While their concerns are held very much in good faith, they are misplaced."
The only way the requests under the statute differ from regular grand-jury subpoenas is that recipients cannot tell anyone they have received the orders, she said. "It's not unreasonable ... in a national security investigation" to keep certain information a secret.
She acknowledged that "any time the government can gather information, there is some chance of [infringement]. But again, this is very minimal. The FBI almost never seeks library records. It would just be a very unusual thing for us to do."
Marc Rotenberg, executive director of the Electronic Privacy Information Center, was unconvinced. "How many people here are terrorists or spies?" he asked meeting attendees, and no one responded. "How many people have flown on a commercial airliner in the past two years?" he asked, and a majority raised their hands.
"The FBI has obtained 257 million air travel records on American passengers on Northwest Airlines" since the Sept. 11, 2001, terrorist attacks, he said. "It seems to be among this small sample a lack of congruence among the number of self-admitted terrorists and the number of people's information that was turned over to the FBI."
Rotenberg said the PATRIOT Act created "a trump card" that allowed law enforcement to use Section 215 as a means to avoid pre-existing privacy laws.
Caproni noted that any investigation authorized under Section 215 must be approved by a judge, but Rotenberg said the "discretion of the judge to review the order [is] significantly diminished. Greater authority is given to investigators."
The next "enormous challenge" will be to establish "adequate means of oversight to balance new powers that have been given to the executive branch," Rotenberg said.
But Caproni insisted that, "We are not willy-nilly gathering personal data" on Americans.
March 22, 2005