Media bias and the Patriot Act

If you read the stories in the mainstream press today about how a US District Judge ruled that a provision of the Patriot Act is unconstitutional (for instance, here, here, or here, know that you are reading a LIE. No part of the Patriot Act was actually struck down. Why? Because the provision in question is 18 years old, thereby predating the Patriot Act by 15 years.

Orin Kerr at The Volokh Conspiracy (link above) explains the media foul-up:

As I noted in my post below, a recent decision of the Southern District of New York struck down part of a 1986 law known as the Electronic Communications Privacy Act. How does the press report the decision? No mention of the 1986 law, of course. Instead, the press is reporting that the court struck down a major part of the Patriot Act, in a blow to the Bush Administration's overzealous response to terrorism. As I trace the history of the statute, this is quite inaccurate: the basic law was implemented in 1986, almost 20 years ago. To be fair, the Patriot Act did amend some language in this section; just not in a relevant way. As best I can tell, the court's decision does not rely on or even address anything in the Patriot Act. (See page 14-22 of the Court's opinion for the details of the statute's history.)

And for further reading, here is Kerr's original post on the decision. It is clear from reading his post (I'll try to read some of the opinion later) that the judge rejected an interpretation of the statute that would have rendered the provision constitutional -- a result the Supreme Court has repeatedly rejected by stating that if an Act of Congress can be interpreted in a constitutional manner, it should be given that interpretation by a court.

The judge seems to have rejected the constitutional interpretation based on the fact that the mere threat of FBI investigation for national security purposes (embodied in an FBI letter to the target of a given search) is intimidating. This is typical nonsense from judges in the Southern District of New York (of which Judge Marrero is one). In the real world, police and law enforcement have to be intimidating on some level, otherwise they would never command respect (two words: British Bobbies).

See the Kerr posts for details and insight; Prof. Kerr is a Fourth Amendment specialist so he knows whereof he writes.

UPDATE: Here is Andy McCarthy's take, slightly different from Kerr's reaction.