SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Friday, April 15, 2005

KERR ON THE CONTINUANCE OF THE PATRIOT ACT. Today I had the good fortune to attend a small, brown bag lunch at the offices of Davis Wright Tremaine—across the street from my own office—to hear Professor and Volokh Conspirator Orin Kerr give a talk: “The Renewal of the Patriot Act: What Should Congress Do? What Will They Do?”

I won’t attempt any sort of comprehensive summary of Kerr’s talk or provide any quotes. But I will say that I found it informative and...refreshing. For there was an actual discussion about the Patriot Act without a resort to hysterics!

Kerr noted that there are, in a sense, two Patriot Acts: 1) the Patriot Act that was actually passed by the Congress and signed by the President; and 2) the Patriot Act as portrayed through certain media outlets, the ACLU and like-minded, outspoken critics. He pointed out that there is a wide gap between these respective versions.

One might say there is now a convergence of these two versions in Congress, as many provisions of the Patriot Act are set to expire under it sunshine provisions. Congress has the task of examining such provisions, with an eye toward renewal. The differences between the Patriot Act's opponents and propoenents are smaller than commonly perceived through media accounts, and those differences will be dealt with accordingly. One should not expect all sides to come away with everything they want, but some compromises will be made on the differences.

Kerr did say that there are two provisions of the Patriot Act for which some legitimate objections have been raised, (and for which there is some acknowledgement by the Department of Justice). Specifically, Kerr cited the “sneak and peek” provision concerning the execution of warrants and delayed notice. Such delayed notice procedures are nothing new to American law, but in times past the reasonable delay in executing such warrants was set by judicial decision and was of a much shorter time period than allowed under the statute. Look for an alteration of this provision.

Another objectionable provision of the Patriot Act that Kerr mentioned is Sec. 215—the so-called “library provisions.” Kerr stated that there is DOJ acknowledgment that the provision was terribly written. But on the other hand, the provision did not serve as the monstrosity proclaimed by opponents. Governments run public libraries, and one has to ask whether there is any expectation of privacy concerning the books one checks out at public libraries.

There is far less attention being paid to the renewal of the Patriot Act, according to Kerr. He attributed this, in large measure, to the fact that there is far less of a wide-ranging disagreement over what should be in the law. In fact, much of the Patriot Act was taken from pre-existing reform proposals which had a general consensus of support.

All in all, it was one worthwhile talk by one sharp legal scholar. It will be interesting to listen to the public debate as the Patriot Act renewal process goes forward.

(Downtown Seattle, WA)


  • At 3:56 PM, Blogger James J. Na said…

    Ah! I am sorry I missed it.

    I'm going to link this one to my blog.

  • At 10:03 AM, Anonymous Anonymous said…

    A particularly baseless worry is the idea that the DOJ wants to "monitor" everyone's bookstore and library usage. That's not a true representation of the law as written, or its intent.
    It's useful to law enforcement to have the ability to subpoena library records: it helped them catch the UNABOMer, after all.

    Anybody in the library can see what you're carrying out, in most cases. The entire municipal library staff, including the high-school part-timer staff, (none sworn to secrecy) has easy and open access to the records. So I can't see how it's a big deal if the FBI or police want to see them too, especially since a court writ is necessary. Their aim would be to compare terror suspect notes, communications and tendencies against linguistic or textual clues from books that this suspect may have checked out. So what?

    In response to a column praising "patriotic" local librarians for shredding records to "protect the privacy of patrons from John Ashcroft," I wrote the following letter to the Seattle P-I, and the author:

    Dear Mr. Shapley,

    Your editorial got me worrying about our constitutional protections Sunday... the "slippery slope" (brilliant coinage on your part), etc.

    I did some research and was SHOCKED to discover that, even long before the Patriot Act, law enforcement agencies could not only subpoena my library internet usage, not just seek a warrant to investigate my book checkout record, but with the same nefarious Big Brother warrant, could actually barge into my home, handcuff me, and jail me until I get a hearing! It has something to do with a shady doublespeak phrase: "probable cause." Can you believe that?! I mean, loss of privacy (with "probable cause" and a "subpoena") regarding my internet usage on a taxpayer-owned computer and use of publicly owned books is bad enough, but with court permission, the government can actually deprive me of my liberty!!!

    I also heard they could invade my home and seize my private computer, books, and financial records! I heard an urban legend about some guy named Richard Jewell in Georgia; they sent dogs to sniff all over his home after a bombing at the Olympics. They took everything he owned to search for explosive residue.

    But that may be only a dubious myth, because Ashcroft wasn't in office then. I mean, if your paper's readership is so incensed about public, tax-funded library materials being investigated (I think that's what you meant by "unbridled government surveillance"), surely they will be implacably enraged by the idea of dragging individuals out of their homes or having one's personal effects confiscated?

    Don't you think? With a slippery slope like this, what's next, summary executions? My paranoia-meter is really off the scale about this!

    Living in fear under the new fascist police state,


    Shapley's entire reply?:



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