Orin Kerr of the Volokh Conspiracy has just published a very interesting working paper on internet surveillance titled "Internet Surveillance Law After the USA-PATRIOT Act: The Big Brother That Isn't". It's an enlightening read. You can get your copy from SSRN here. Please do. Kerr's previous job (before summer '01) was in the Computer Crime and Intellectual Property division of the USDoJ, so I'm willing to stipulate that he knows his stuff. A lot.
The upshot of Kerr's argument is that the alarm over the U-P Act's sections on internet surveillance is overwrought and founded in wrong principles. He argues that this section of the Act simply took a disparate patchwork of existing statutes, combined and rationalized them, and made internet surveillance work as telephone and mail surveillance do. As there were no prior statutes specifically governing internet surveillance, the U-P Act actually makes privacy abuses less likely by codifying how it's to be done. Therefore, on this issue at least, the U-P Act actually could strengthen privacy. He also argues that the flap over Carnivore is similarly grounded in wrong assumptions.
If all this is true, and I have no reason to doubt Kerr substantially on this, then that is a good thing for 4th Amendment Chicken Littles like myself. At the very least, it makes me less totally pessimistic as regards privacy issues and the Patriot Act.
Moreover, the article is a decent primer in privacy and the law, explaining such things as pen register statutes, the difference between envelope information and content information, and the evolution of privacy rights in intrapersonal communications. This is very handy, indeed, as it covers a lot of the vocabulary commonly used in electronic privacy legislation. Be aware, though, that Kerr confines his argument solely to the aspects of the U-P Act relating to Internet surveillance and privacy-- you can still find a lot not to like in it, if that's your inclination.
Proving that you should always read the footnotes and expository paragraphs in any paper, Kerr puts some of the best bits in his. First among these is a fact that has become obscured in the current fashion for Ashcroft-bashing (not that he doesn't deserve some of that). Let me put this as simply as possible, and highlight it for you.
Many elements of the USA-PATRIOT Act are a legacy of the Clinton administration, not of John Ashcroft.
Granted, it was polished, tweaked, pulled together, revised, negotiated, and compromised before passage, and bears the name of AG Viet Dinh (who works under Ashcroft), but we presumably have the Clinton and Reno teams to thank for its origins, good bits and bad bits alike.
This is an interesting train of thought which bears further investigation. Verrry interesting, yes indeedy. I shall dig on.
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