The Washington Post reports that the Justice Department recently sent out a letter to the chairs of the Asian Pacific, black, and Hispanic caucuses in Congress, reassuring them that the Patriot Act’s expansion of information-gathering powers, including the controversial Section 215, does not override federal statutes guaranteeing the confidentiality of census data. DOJ’s view, according to Assistant Attorney General Ronald Weich, is that “if Congress intended to override these protections, it would say so clearly and explicitly.”

Section 215, recall, is colloquially referred to as the “business records” provision of Patriot, though in fact it permits investigators to obtain “any tangible thing” from a designated person or entity by obtaining an order from the secret FISA court, subject only to a showing that the records sought are “relevant” to a national security investigation. As Weich observes, §215 does not contain the “notwithstanding any other law” language present in other parts of the Foreign Intelligence Surveillance Act, which means that it cannot be presumed on face to override other federal privacy statues establishing a higher degree of protection for specific categories of sensitive records. 

What’s interesting to me, however, is that a similar issue arose several years ago, not with respect to the census confidentiality statute, but rather the Family Educational Rights and Privacy Act (aka FERPA, aka the Buckley Amendment). Initially, DOJ attorneys similarly opted not to seek education records under §215 on the grounds that the FISA court might conclude FERPA trumped Patriot in the absence of language giving §215 explicit priority, as the Office of the Inspector General’s initial report on the use of §215 explains. Nevertheless, the Counsel for Intelligence Policy told OIG that his office “would have been willing to present an application to the FISA court for educational records if the FBI considered the information important enough and wanted to press the issue with the FISA Court.” 

Subsequent amendments to the statute alleviated those concerns:

According to [National Secrity Law Branch] and [Office of Intelligence Policy and Review] attorneys, this legal impediment to obtaining educational records has been addressed. Section 106(a)(2) of the Reauthorization Act amended FISA by ading 50 U.S.C. §1861(a)(3), which specifically addresses educational, medical, tax and other sensitive categories of business records. The amendment provided that when the FBI is requesting such items, the request must be personally approved by the FBI Director, the FBI Deputy Director, or the Executive Assistant Director for National Security. According to several NSLB and OPPR attorneys we interviewed, because this provision clarifies that educational records are obtainable through the use of a Section 215 order, the non-disclosure provisions of Section 215 apply rather than the notification provisions of the Buckley Amendment.

Census records, of course, are not mentioned, and the statutory language protecting those records from legal process is unusually strong and unqualified. On the other hand, neither does the amended language explicitly override the federal statutes protecting the specified categories of records. Rather, it adds a layer of oversight for several types of requests that are implied to fall within the scope of §215. Indeed, at the time, this portion of the Reauthorization Act was publicly portrayed as increasing protections for sensitive records.

That, at any rate, was the spin the Congressional Research Service gave it. Based on OIG’s account, it sounds as though a reform that had been painted as a concession to civil libertarians actually allowed the acquisition of those sensitive records for the first time, since they’d previously been regarded as off-limits by statute. So I suppose we should be glad they didn’t decide to simultaneously “enhance” the safeguards on census records.

Of course, that doesn’t mean it’s necessarily impossible for those records to ever be obtained via a §215 order. As Weich’s letter clearly says, the Census Act prohibits “the Commerce Secretary and other covered individuals from disclosing protected census information.” But as the Supreme Court clarified in St. Regis Paper v. United States, that confidentiality requirement is only binding on specific covered individuals. If the government is able to get its hands on a copy of a census record by serving some non-covered individual, the record itself is not off limits.

Since I know approximately nothing about the fine points of record handling protocol within the Census Bureau, I can’t really say how much of a practical difference that makes. Still, given that we’ve seen statutory records protections effectively stripped away under the guise of enhancing those protections, I think it’s reasonable to infer that census records will be considered fair game under §215 if they can be obtained from a source other than the designated officials.