Government Snoops May Find Door Barred at Berkeley

Did you know that under the USA Patriot Act, the Department of Justice can obtain a warrant to read the e-mail or library or academic records of university students, staff or faculty? And that all the agency has to do to get the warrant is say that the information is related to an investigation involving espionage or terrorism?

It’s true. And what’s more, the Department of Justice can do it in secret, without ever telling the subject of the investigation that it did so. That latter provision is particularly troubling, because if the subject doesn’t know about the search, then there’s no one to challenge it in court. No one, that is, unless the custodian of the documents at the university is himself or herself prepared to say no.

It’s an outrageous invasion of privacy and a violation of academic freedom. That is why the UC Berkeley Faculty Senate took a stand against it by a vote of 105 to 0, with no abstentions, on May 6.

We voted -- at my urging and that of several other professors -- because of a fundamental constitutional question raised by the provision: Does a search of a student’s or staff member’s e-mail or a faculty member’s library records, based simply on the Justice Department’s saying that it is “related to” an investigation of terrorism, satisfy the 4th Amendment’s requirement that “no warrants shall issue, but upon probable cause”? The Patriot Act does not require any showing of probable cause. Is that constitutional?

As far as we know, this provision has not yet been used by the Justice Department. But, of course, there’s no way to be sure.

And if and when it is used, how can it be challenged under the 4th Amendment? The Patriot Act cleverly prevents such an important challenge from ever being heard in court by providing that the individual never knows the search took place. An FBI agent can simply show up at the computer center of a school, demand to see the e-mail of a particular student and show a warrant from a federal judge ordering that no one be told. No computer center operator, I suspect, would refuse to comply, and the damage would be done.

What the Faculty Senate did was to ask Berkeley’s chancellor to remove the authority in advance from the manager of the computer center, or the librarian, or whoever is in charge of the records. Instead, the authority to respond would rest with only one person, the chancellor or his designee.

Assuming that person stands up and says no, the Justice Department would then either have to walk away or go to court to hold that person in contempt. Facing jail for contempt, the chancellor or his designee would have concrete legal standing to challenge the provision.

In response to the Faculty Senate’s unanimous vote, Berkeley Chancellor Robert Berdahl said that “the notion of secret subpoenas and other aspects of the Patriot Act” were “certainly troubling.” But no final resolution of what will be done in the event of a subpoena has yet been reached. We hope that our action will have one of two effects.

Either the Department of Justice will never try to pry into our private records (rather than risk losing in court); or it will try us and the university will resist, in which case a matter of great constitutional importance will be resolved by the judiciary -- the only branch capable of neutrally evaluating the meaning of our Constitution’s 4th Amendment in the modern context of terrorism.