USA PATRIOT Act, Section 215

Legislation

By: U.S. Congress

Date: October 24, 2001

Source: Electronic Privacy Information Center. "U.S.A. Patriot Act." October 24, 2001 <http://www.epic.org/privacy/terrorism/hr3162.html> (accessed May 16, 2006).

About the Author: The U.S. Senate and House of Representatives, the two houses of the U.S. Congress that enacted this legislation, form the legislative branch of the U.S. government.

INTRODUCTION

The USA PATRIOT Act was passed by both houses of Congress and signed into law by President George W. Bush on October 24, 2001. The acronym stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. Written and enacted in the immediate aftermath of the terrorist attacks of September 11, 2001, it was passed with a little opposition: Only one senator (Russ Feingold, D-WI) and a handful of representatives voted against it.

The act's title declares it is intended "to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." One of its most controversial provisions is Section 215, which allows Federal Bureau of Investigation (FBI) agents to request "certain business records" after obtaining a warrant from the Foreign Intelligence Surveillance (FISA) court. The FISA court proceedings are secret and its decisions are not subject to appeal. Although libraries and bookstores are not specifically mentioned by the USA PATRIOT Act, many legal experts agree that the section's language allows the FBI to request records from public and university libraries and bookstores. While the language of Section 215 is vague, many privacy and civil liberties advocates claim that authorities may obtain records about who has been borrowing or buying which books or using which Internet resources. Further, the act prevents librarians and booksellers from revealing that they have had to supply records to the FBI—what has been called the "gag provision" of the bill. The FBI does not need to show the library that there is probable cause for suspecting the person whose records are requested.

Another section of the bill, Section 505, allows the FBI to request records without a court order by issuing a document called a National Security Letter. As with Section 215, recipients of National Security Letters are barred from revealing that they have received such requests. The American Civil Liberties Union (ACLU) has challenged the constitutionality of this controversial section.

PRIMARY SOURCE

H.R. 3162

107th CONGRESS.

107 1st session.

in the senate of the united states.

october 24, 2001.

Received.

AN ACT

To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.

section 1. short title and table of contents.

1. short title.—This Act may be cited as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.…

sec. 215. access to records and other items under the foreign intelligence surveillance act.

Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:

"sec. 501. access to certain business records for foreign intelligence and international terrorism investigations.

1. 1. The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
   2. An investigation conducted under this section shall—
      1. be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
      2. not be conducted on a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
2. Each application under this section—
   1. shall be made to—
      1. a judge of the court established by section 103(a); or.
      2. a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
   2. shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.
3. 1. Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.
   2. An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).
4. No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.
5. A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

" sec. 502. congressional oversight.

1. On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.
2. On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period—
   1. the total number of applications made for orders approving requests for the production of tangible things under section 402; and
   2. the total number of such orders either granted, modified, or denied."

SIGNIFICANCE

Sections 215 and 505 of the USA PATRIOT Act have been controversial since 2002. The government's authority to obtain personal and business information about persons not accused of any crime struck some Americans as an unconstitutional invasion of privacy; others have defended the Act's provisions as a necessary tool in the struggle against terrorism.

The National Library Association (ALA) became a major opponent of the USA PATRIOT Act, organizing letter-writing and other campaigns to express its views to senators and representatives.In2003,theorganization's executive director said to a reporter for the Washington Post, "This law is dangerous. I read murder mysteries— does that make me a murderer? I read spy stories—does that make me a spy? There's no clear link between a person's intellectual pursuits and their actions."

The USA PATRIOT act can require records to be handed over secretly, but it does not require that they be kept to begin with; therefore, some booksellers and librarians began destroying records that could identify who had borrowed or bought books, so that they would have no information to hand over if asked. In 2003, ten libraries in Santa Cruz, California, destroyed borrowing records on a daily basis and posted signs warning patrons that the government can secretly review whatever borrowers read. Several towns in Maine started a campaign to get entire communities to read George Orwell's novel 1984, a cautionary tale in which the government watches citizens incessantly, justifying its actions as necessary defensive measures in a never-ending war against dangerous enemies. Librarians in Bath, Maine, obliterated all traces of borrowing and Internet records each day. In Monterey Park, California, librarians taped signs to every computer terminal saying, "Beware: Anything you read is now subject to secret scrutiny by federal agents." Similar actions were carried out at many libraries across the country.

Federal officials objected that the new law targeted only those connected to terrorism. "We're not going after the average American," said a Justice Department spokesman. "We're only going after the bad guys." Critics fear that a law that empowers federal agencies to spy on citizens will inevitably be abused for political purposes. Such concerns were apparently bolstered in March 2006 when the American Civil Liberties Union obtained government documents showing that the FBI had spied on a number of nonviolent antiwar groups under the rubric of antiterror investigation, including the Thomas Merton Center of Philadelphia, a pacifist religious organization named in honor of the Catholic monk Thomas Merton (1915–1968).

The USA PATRIOT Act was due to sunset (expire) four years from the bill's original passage. In early 2006, a modified version was passed by the House and Senate and signed into law by President Bush. Many of the new act's provisions were made permanent, with no sunset date, but the new, slightly modified version of Section 215 must be renewed in 2008. The ALA expressed disappointment, stating that the new legislation "offers little improvements to Section 215 regarding individualized suspicion … [T]he recipient of a Section 215 court order does not have the ability to meaningfully challenge the order or the attached gag order in a court of law." President Bush, welcoming Senate passage of the bill in March 2006, said that "[t]he Patriot Act is vital to the war on terror and defending our citizens against a ruthless enemy."

FURTHER RESOURCES

Books

Baker, Stewart A., and John Kavanagh, eds. Patriot Debates: Experts Debate the USA Patriot Act. Chicago: American Bar Association, 2005.

Periodicals

O'Connor, Anahad. "Librarians Win as U.S. Relents on Secrecy Law." The New York Times. April 13, 2006.

Sanchez, Rene. "Librarians Make Some Noise Over Patriot Act: Concerns about Privacy Prompt Some to Warn Patrons, Destroy Records of Book and Computer Use." The Washington Post. April 10, 2003.

Web sites

American Civil Liberties Union. "With Patriot Act Debate Over, Government Drops Fight to Gag Librarians from Discussing Objections to Controversial Law." April 12, 2006. <http://www.aclu.org/natsec/gen/24995prs20060412.html>.

American Library Association. "USA PATRIOT Act of 2001." April 17, 2006. <http://www.ala.org/ala/washoff/WOissues/civilliberties/theusapatriotact/usapatriotact.htm> (accessed May 16, 2006).