It's being reported as a blow against the Bush administration via the Patriot Act. For example:
"But the ACLU argues that Marrero's ruling is a warning to the government about some of its tactics in the war on terrorism. "This is a wholesale refutation of the administration's use of excessive secrecy and unbridled power under the Patriot Act," said Ann Beeson, an ACLU lawyer. . . . " Washington Post
"Declaring that personal security is as important as national security, a judge Wednesday blocked the government from conducting secret, unchallengeable searches of Internet and telephone records as part of its fight against terrorism. The American Civil Liberties Union called the ruling a "landmark victory" against the Justice Department's post-September 11 law enforcement powers." - AP
But I've learned to follow the links when How Appealing's Howard Bashman refers me to more reading from legal experts: like to this post by Orin Kerr at the Volokh Conspiracy. Turns out the stricken law had nothing to do with the Patriot Act, it's actually part of a 1986 law known as the Electronic Communications Privacy Act.
As Kerr says:
"The early reports are trying to view this ruling as a rebuke to antiterrorism strategies of the Bush Administration, but that's just not accurate: if anything, it is a rebuke to the antiterrorism strategies of the Reagan Administration."
I'm not an expert on this area by any means, but it would seem a simple matter of fact checking. I looked into the law in question: 18 USC 2709. I found that it was modified by the 2001 Patriot Act.
For those of you into the details, here's how it changed. For the rest of you, skip to the end for my point.
The Electronic Communications Privacy Act had read:
§ 2709. Counterintelligence access to telephone toll and transactional records
(a) Duty to provide.--A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(b) Required certification.--The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may--(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that--
(A) the name, address, length of service, and toll billing records sought are relevant to an authorized foreign counterintelligence investigation; and
(B) there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and
(2) request the name, address, and length of service of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that--
(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and
(B) there are specific and articulable facts giving reason to believe that communication facilities registered in the name of the person or entity have been used, through the services of such provider, in communication with--(i) an individual who is engaging or has engaged in international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States; or
(ii) a foreign power or an agent of a foreign power under circumstances giving reason to believe that the communication concerned international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States.
(c) Prohibition of Certain Disclosure.— No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section."
. . .
Part of the October 2001 Patriot Act had modified it to read:
§ 2709. Counterintelligence access to telephone toll and transactional records
(a) Duty to provide.--A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(b) Required certification.--The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may--(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(c) Prohibition of Certain Disclosure.— No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.
. . .
The modifications were made in Pub.L. 107-56 section 505a. The Patriot Act modifications changed the language under Section B of the old Electronic Communications Privacy Act. Some of the modifications were substantive, others a simplification of the numbering. The problem? The court's ruling actually struck down Section C, not A or B. The court found C to be an unconstitutional prior restraint on free speech, and held the entire statute unconstitutional because it found that the provisions of C could not be severed from A and B. (Severability would've allowed the rest of the statute to stand and only C to be struck down).
Of course, C was not ever touched by the Patriot Act in any way, only B was modified. So it looks to me as though the reference to the Patriot Act is really inaccurate, though it sounds like better copy - more relevant to the current election.
My question: The Times statement a direct quote from an ACLU lawyer. It's possible the reporters simply ran the quote without checking for accuracy. A bad policy, in my opinion, but as the ACLU is a legal entity, and the person being quoted a lawyer, I can see the temptation to simply take the quote at face value rather than wading through the code.
But did the ACLU fail to notice which portion of the law the ruling concerned? Make a sloppy reference? Or was the Patriot Act cited to make the ruling seem more relevant to the current political landscape? After all, it's a little late to be attacking Reagan's policies.
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