The importance of research
Thursday, September 30th, 2004Note to self: When reading news stories about court decisions, always download and read the decision. And look up the statute being ruled upon, because apparently the media does neither of these things, nor do the organizations filing amicus briefs in the cases.
Take, for example, the EFF’s triumphant message that an onerous provision of the USA PATRIOT Act has been struck down. Now see Orin Kerr’s post at the Volokh Conspiracy.
So finally I just downloaded the decision myself (it’s available from a link in the EFF post) and looked up the statute actually at issue- which I did by Googling “title 18″ and then searching for 2709, the section at issue.
The USA PATRIOT Act amended Title 18, section 2709, to have a much lower standard of evidence required before a National Security Letter can be used. I strongly oppose that, of course, but Kerr is correct- it was completely irrelevant to the court’s decision. The statute authorizing the use of NSLs was struck down for a number of reasons, not the least of which being that the gag order provisions prevent any sort of judicial review of what evidence the government does have anyway. So the decision had nothing at all to do with the USA PATRIOT Act and the Bush Administrations anti-terrorism policies (which were passed with overwhelming, if misguided, bipartisan support).
In fact, only one of the amicus briefs filed in the case actually addressed the issue of the revisions from the USA PATRIOT Act. Guess what? It wasn’t the EFF’s. (You’ll find that in the decision as well, I think on page 22 or 23.)