The power of the Patriot Act stops at the Census... for now

In September 2009, several members of the Asian Pacific, black and Hispanic caucuses queried the Department of Justice regarding concerns that the sweeping nature of the Patriot Act would put census data into the hands of law enforcement.

The official response seems to be, "No."

But what I found somewhat amusing was information trail in the chain of links that I visited in an effort to better understand what would prompt the question.

First, allow me to visit some memories worth mention:

By law (92 Stat. 915, Public Law 95-416, enacted on October 5, 1978), individual census records are sealed for 72 years. This figure has remained unchanged since before the 1978 law, reflecting an era when life expectancy was under 60 years, and thus attempts to protect individuals' privacy by prohibiting the release of personal information during individuals' lifetimes.

Wiki - Census (US)

(Sadly, the US Census government link referenced was dead... www.census.gov...)

Now apparently, the troublesome empowerment clause of the Patriot Act, the caucuses' inquiries was explore by a Washington Post article entitled:

Patriot Act doesn't override confidentiality in Census, Justice Department says

In which the author, Ed O'Keefe, failed to mention the offending provision. Although he did tell us that ...

Civil rights leaders said the clarification will help them convince minorities that it is safe to participate in the census.

However, had I read his article , I believe I would not have been much interested in following up.

The only reason I know the source was the Washington Post article was because it was referenced in the article you can find at CATO@LIBERTY entitled:

The Census Meets the Patriot Act

The title seems far less telling about the content. But at least the author, Julian Sanchez, was much more diligent in presenting the specifics regarding the Act.

The Washington Post reports that the Justice Department recently sent out a letter to the chairs of the Asian Pacific, black, and Hispanic caucuses in Congress, reassuring them that the Patriot Act’s expansion of information-gathering powers, including the controversial Section 215, does not override federal statutes guaranteeing the confidentiality of census data. DOJ’s view, according to Assistant Attorney General Ronald Weich, is that “if Congress intended to override these protections, it would say so clearly and explicitly.”

After that opening volley, he recalls similar complacency about the same question which arose regarding the Patriot Act's power over the Family Educational Rights and Privacy Act (FERPA, aka the Buckley Amendment). FERPA was never challenged in FISA court, apparently because the establishment wasn't sure it could get away with it without a fight. After the matter had been broached however, a legislative amendment conveniently addressed the issue.

According to [National Secrity Law Branch] and [Office of Intelligence Policy and Review] attorneys, this legal impediment to obtaining educational records has been addressed. Section 106(a)(2) of the Reauthorization Act amended FISA by ading 50 U.S.C. §1861(a)(3), which specifically addresses educational, medical, tax and other sensitive categories of business records. The amendment provided that when the FBI is requesting such items, the request must be personally approved by the FBI Director, the FBI Deputy Director, or the Executive Assistant Director for National Security. According to several NSLB and OPPR attorneys we interviewed, because this provision clarifies that educational records are obtainable through the use of a Section 215 order, the non-disclosure provisions of Section 215 apply rather than the notification provisions of the Buckley Amendment.

Which appears to 'refine' (the establishment and the Congressional Research Service billed it as an 'enhancement') the law so as to state it was possible to trump FERPA.

He makes a fair case that there would be similar vulnerability to the privacy of census data. Noting that...

Based on [the] Office of the Inspector General’s account, it sounds as though a reform that had been painted as a concession to civil libertarians actually allowed the acquisition of those sensitive records for the first time, since they’d previously been regarded as off-limits by statute.

So now at least, I know that the problem was Section 215, also known as the “business records” provision of Patriot Act (Sanchez adds that it "... in fact it permits investigators to obtain “any tangible thing” from a designated person or entity by obtaining an order from the secret FISA court, subject only to a showing that the records sought are “relevant” to a national security investigation."

But actually, I was not alerted to the news of what may be the 'empty' assurance by the Department of Justice. Instead it was brought to me via Dvorak Uncensored piece entitled:

Can the Government Use the Patriot Act to Obtain “Private” Census Records?

A much more alluring title no?

Census records, of course, are not mentioned, and the statutory language protecting those records from legal process is unusually strong and unqualified. On the other hand, neither does the amended language explicitly override the federal statutes protecting the specified categories of records. Rather, it adds a layer of oversight for several types of requests that are implied to fall within the scope of §215. Indeed, at the time, this portion of the Re-authorization Act was publicly portrayed as increasing protections for sensitive records.

Of course, that doesn’t mean it’s necessarily impossible for those records to ever be obtained via a §215 order. As Weich’s letter clearly says, the Census Act prohibits “the Commerce Secretary and other covered individuals from disclosing protected census information.” But as the Supreme Court clarified in St. Regis Paper v. United States, that confidentiality requirement is only binding on specific covered individuals. If the government is able to get its hands on a copy of a census record by serving some non-covered individual, the record itself is not off limits.

Which leads me to believe that the Dvorak piece was far clearer and far more informative than the 'source' article which started the whole string of links... the much more prestigious and well thought of Washington Post.

Perhaps it means nothing, perhaps it tells me that no MSM news source is as good as they tell us they are...

By the way, I was never able to recover a sample of the letter the caucuses had sent, only the reply....

......
This is in response to your letters of September 14,2009 and December 3,2009 requesting the Justice Department's views as to the potential effect of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 ("Patriot Act"), as amended, on confidentiality protections provided by the Census Act, 13 U.S.C. $5 8,9,214 (2006). In particular, your letters express concern on the part of some members of the public that information-gathering or information-sharing provisions of the Patriot Act may override the confidentiality requirements of the Census Act so as to require the Commerce Secretary to disclose otherwise covered census information to federal law enforcement or national security officials. The long history of congressional enactments protecting such information from such disclosure, as well as the established precedents of the courts and this Department, supports the view that if Congress intended to override these protections it would say so clearly and explicitly. Because no provision of the Patriot Act, including Section 215, indicates such a clear and explicit intent on the part of Congress, the Department's view is that
no provisions of that Act override otherwise applicable Census Act provisions banning the Commerce Secretary and other covered individuals from disclosing protected census information possessed by the Commerce Department.

It seems to be true that it avoids any mention of provisional changes such as those in the renewal amendment may be of consequence to the matter....

Time will tell.

Thanks for reading!

[edit on 13-3-2010 by Maxmars]