By Pike, George H.
Information Today , Vol. 22, No. 8
Writer George Orwell was under surveillance by Scotland Yard's Special Branch from 1936 to 1948, according to recently released records. Ironically, 1948 was also the year he published his classic novel, 1984, the futuristic and frightening tale depicting a land of continual electronic and personal eavesdropping and regulated behavior ("Big Brother Is Watching You").
Scotland Yard had Orwell under surveillance because of his alleged involvement in communist activities. Fast-forward to 2005 and Orwell's reflections and his vision of 1984 can be viewed in light of the cold and hot war on terrorism.
The USA PATRIOT Act became one of the first responses to the war on terrorism after 9/11. Enacted in October 2001, the act responded to intelligence faults that allegedly prevented information from getting to proper authorities in time to block the attacks. The act was also intended to strengthen law-enforcement and intelligence-gathering tools to prevent future attacks. At its core, the PATRIOT Act allows the government to gather more information about more people and to share that information among additional government agencies. And this has raised concerns for many people, particularly those in the information industry.
While the 9/11 attacks were unprecedented, the PATRIOT Act was not necessarily a unique government response to an attack against the nation. In his book All the Laws but One, Chief Justice William Rehnquist pointed out that threats to national security are often met with heightened surveillance or--worse--surveillance of the country's citizens. World War I witnessed the Alien and Sedition Acts, World War II saw the internment of the Japanese, and the Cold War observed the House Un-American Activities Committee (in which even American icon President Abraham Lincoln is implicated, because he did not hesitate to suspend the constitutional protections of habeas corpus in order to protect against allegedly treasonous activity during the Civil War).
Many of the PATRIOT Act's provisions were directed to expire in December 2005, perhaps because of these lessons or perhaps just for political expediency. Not surprisingly, President George W. Bush made renewal of those provisions a prominent goal of his second term. Congress also is engaged in an increasingly partisan battle over which provisions to renew and for how long.
Section 215: Business and Library Records
In the nearly 4 years since the PATRIOT Act was enacted, its controversial provisions have become well-known. For the information community, Section 215 is particularly relevant. This section expanded the records that could be seized in an intelligence investigation to include virtually all "business records," including library and bookstore records, and possibly database user records.
Other provisions elevated the secrecy that surrounds an investigation to a higher level. For example, a library that receives a subpoena for records cannot discuss even the receipt of the subpoena. Individuals under investigation would also not be informed about the investigation until well after it had been undertaken, which could be as long as 6 months.
An important legal consideration underlying the controversy is the distinction between the constitutional rights of subjects in a criminal investigation and the rights of subjects in intelligence-gathering investigations. Criminal defendants have rights to be free from unwarranted searches, rights to consult with an attorney, a right to be notified of charges, and rights to confront witnesses and evidence. Subjects of intelligence investigations did not have the same level of rights even before the PATRIOT Act. The controversies surrounding the act are tied to this distinction. By broadening the scope of intelligence-targeted surveillance, the act allows the potential for greater invasion of private activities without the benefit of constitutional rights for the subject. …