THE VOTE BY the House of Representatives last month to block use of a provision of the USA Patriot Act against libraries and bookstores sends a powerful message of bipartisan anxiety about the Bush administration's approach to terrorism. Unfortunately, that message is something of a misfire. Attached to an appropriations bill, the amendment by Rep. Bernard Sanders (I-Vt.) responds to a provision that, while imperfect, makes a good deal of sense and about which there is no evidence of abuse. The administration's response was characteristically hyperbolic: The Justice Department warned that Mr. Sanders's amendment would carve out "bookstores and libraries . . . as safe havens for terrorists and spies, who have, in fact, used public libraries to do research and communicate with their co-conspirators." But on the merits, the provision is not one that merits particular concern -- and a spending bill, in any event, is a ridiculous means of improving it.
The provision in question, Section 215 of the Patriot Act, allows the FBI to get an order from a special court in national security cases to force the production of business records and other documents. The provision does not deal specifically with libraries or bookstores; indeed, the Justice Department says it has never used it to get library or bookstore records and, as of the end of March, had used it only 35 times for any purpose. What's more, the power it grants is largely redundant; the FBI can get that same material using a grand jury subpoena. Although there are procedural differences between the two mechanisms, these differences do not seem hugely significant either from an investigative or from a civil liberties point of view. In fact, in some respects, the procedure under Section 215 is more protective than a conventional subpoena.
Section 215, which, like the rest of the Patriot Act, was passed in haste, could stand improvement. The mechanism for challenging an order under it in court should be made explicit, for example, and it ought to be clarified so that the secrecy associated with orders issued under it does not impede communication between a recipient and his or her lawyer. But the department supports such changes, which would merely codify rules it already observes in practice.
Even if cutting off money were a reasonable way to improve the law, the substance of Mr. Sanders's amendment makes little sense. The amendment would prohibit spending on Section 215 orders for records from libraries or bookstores. But the privacy interest in such records, while real, is not obviously stronger than the comparable privacy interest in medical, credit card or other business records. And, of course, barring production orders under the Patriot Act would not protect libraries from having to turn over those same records under other laws.
If this vote signals that the House of Representatives is truly interested in acting to protect civil liberties, a whole host of issues awaits its attention. But Section 215 of the Patriot Act shouldn't be high on its list.