Should the USA Patriot Act Be Reauthorized?
Why the Current Proposal on Section 215, the Business Records Provision, Still Falls Short

In January, when Congress resumes its session, both houses are expected to make a decision about the reauthorization of certain controversial USA Patriot Act provisions.

Both houses have agreed to a Conference Report that includes a compromise bill on the subject, which would amend the Patriot Act in certain ways. But a small, bipartisan coalition of Senators has argued that these amendments are insufficient.

In this column, I will explain why I agree with their arguments - in particular, with respect to Section 215 of the Act, which governs the procurement of records.

Section 215: How It Has Been Used So Far

As currently written, Section 215 allows investigators to procure "tangible things (including books, records, papers, documents and other items)," as long as they certify that the records are sought for an investigation to "protect against international terrorism or clandestine intelligence activities."

Some commentators refer to Section 215 as the "business records" provision because many of the records sought are retained by businesses, such as car rental companies. The scope of Section 215 is far more expansive, however -- encompassing records retained by libraries and nonprofit political or religious organizations, as well.

Those who receive such orders are prohibited from disclosing that fact. Thus, if a person's records are held by a third party such as a hospital or a library, that person may never know he or she has been the subject of investigation at all.

According to the Department of Justice (DOJ), as of March 30, federal judges had reviewed and granted its request for a section 215 order 35 times. (Previously, DOJ had denied invoking Section 215 at all; either that denial was false, or the requests all came in the interim period.)

To date, the DOJ reports that Section 215 has only been used to obtain records of driver's licenses, public accommodations, apartment leases, and credit cards, and to procure subscriber information--such as names and addresses--matching telephone numbers retrieved through court-authorized pen registers. (A "pen register" is a device that can track the numbers for outgoing calls.)

So far, DOJ reports that it has never obtained a Section 215 order to obtain library or bookstore records, medical records, or gun sale records. But Section 215 does not currently exclude requests for such records. And, significantly, DOJ has apparently sought library records using another provision of the Patriot Act, Section 505. (Section 505 permits access to certain records through the use of an administrative subpoena known as a National Security Letter.)

The Conference Reports's Proposed Amendments to § 215

The Conference Report proposes a series of amendments to Section 215.

Some of these proposed amendments are related to auditing and reporting and are laudable. The Conference Report would require DOJ's Inspector General to conduct twice-annual audits of the FBI's use of Section 215, and mandates enhanced reporting to Congress with regard to the use of this authority.

It also requires detailed public reporting with regard to the aggregate use of this authority. Each April, the Attorney General would report to Congress on the number of order applications made, granted, modified, and/or denied.

In addition, the Attorney General would have to report on number of requests for specific categories of records including: library records; tangible things from a person or entity primarily engaged in the sale, rental, or delivery of books, journals, magazines, or other similar forms of communication; gun sale records; health information; and tax return information

Some of the proposed amendments are substantive. They improve Section 215, but, as I will explain, they leave its most serious flaw unaddressed:

First, the Conference Report proposes that requests for an order directing the production of certain categories of records -- library circulation records, library patron lists, book sales records, book customer lists, gun sales records, and medical records containing personally identifiable information -- must be approved in advance by the FBI director or his senior designee.

Second, the Conference Report proposes that the FBI's application for a Section 215 order must include a "statement of facts" showing "reasonable grounds to believe that the records or other things sought are relevant to an authorized investigation" involving international terrorism or espionage.

That statement would have to describe the items with sufficient particularity; prescribe a date when the items will be returned (allowing a reasonable period of time for items to be made available to the government); and provide clear and conspicuous notice of the government's nondisclosure principles and procedures.

Third, the Conference Report proposes that law enforcement would also be forbidden from requiring the production of anything that would be protected under the standards applicable to a subpoena issued in aid of a grand jury investigation.

Fourth, the Conference Report proposes that recipients of orders be allowed to consult legal counsel and seek judicial review of an order in the Foreign Intelligence Surveillance Act (FISA) Court. But it does nothing to give them any incentive to do so. The person whose records are being requested still is not informed. And those who receive Section 215 orders are still granted immunity from liability for "good faith" compliance. So it seems likely that few businesses will avail themselves of these rights. (Possibly, when requests are targeted to political associations or religious groups, they may avail themselves of these avenues of legal protection, but even that seems dubious.)

Moreover, even if the recipients of record requests do fight them in the FISA court, they still will not be able to see the classified information on which the Court might base its decision, and still will have to select a lawyer with a security clearance.

Finally, the Conference Report proposes to create a new category of information that is deemed presumptively relevant: information that pertains to a foreign power or its agents; to the activities of a "suspected" agent of a foreign power under investigation; or to "an individual in contact with, or known to, a suspected agent of a foreign power" who is under investigation.

Why Section 215 Remains Too Broad: A Strong Potential Chilling Effect

Crucially, this last proposal does nothing to prevent the FBI from seeking information outside these categories. Thus, although the Conference Report summary notes that "This provision was added in order to mitigate concerns about government 'fishing expeditions,'" there is no guarantee that it will have this effect.

Making other information presumptively irrelevant might have been effective. But that's not what this provision does: It simply makes it easier to obtain records in these categories, while making it no more difficult to obtain records in other categories.

And that means that, even if all the Conference Report's proposals become law, the FBI will still be able to seek the sensitive records of plainly innocent people.

It will still be able to use dragnet searches -- such as a search of all the membership records of an entire mosque, church, synagogue, or other place of worship.

It will still be able to peruse entire databases and mine them, even though they overwhelming contain innocent people's records.

And it will still be able to base its requests partly - though not, by law, solely -- on First-Amendment-protected activities such as reading or surfing the Internet.

For these reasons, Section 215 will still exert a powerful chilling effect on the exercise of First Amendment rights -- in that certain groups of people may be deterred from reading or speaking or joining groups, such as political parties or religious associations, for fear that if they do, their patterns and behavior will be monitored. (As I have noted in another column, this is the basis for a lawsuit brought by the ACLU on behalf of various Muslim- and Arab-American organizations in the U.S.)

The Important Change that Should Be Made to Section 215

The most serious flaw in Section 215, then, remains unaddressed. It is the fact that there is no requirement that law enforcement show that the individual (or individuals) it is targeting have links or connections to suspected terrorist activity.

Why is this so troubling? In part, the reason has to do with the uniqueness of intelligence investigations.

The Bush Administration has compared Section 215 orders to more commonplace grand jury subpoenas available in criminal cases. But intelligence investigations are unique, in ways that make them especially challenging to our civil liberties.

They are broader than criminal inquires. They can focus entirely on legal activities - and even focus in large part, as noted above, on First Amendment-protected political activities. They are more secret than criminal inquiries. And they

are not subject to after-the-fact scrutiny, as are criminal trials - which is why it's all the more important to build in privacy protections at the beginning, before rights-infringing searches take place.

The solution? The Senate reauthorization bill, which proposed amendments to Section 215, contains a provision requiring that the DOJ state facts which show reasonable grounds to believe that the records being requested pertain to a foreign power or an agent of a foreign power; are relevant to the activities of a suspected agent of a foreign power; or pertain to an individual in contact with or known to a suspected agent of a foreign power.

The Senate bill thus requires that all records be connected more directly to individuals suspected of terrorist activities. This is a vital check on the government's ability to obtain our records.

Section 215 should not be eliminated - just fixed.