Why the ACLU Is Right To Challenge The FBI's Access to Library, Bookstore, and Business Records Under the USA PATRIOT Act

By ANITA RAMASASTRY

Wednesday, Aug. 06, 2003

On July 31, the American Civil Liberties Union (ACLU) filed a lawsuit against the federal government in Michigan federal court. The suit - the first of its kind - is aimed at curbing the FBI's expanded spy powers granted in the USA PATRIOT Act. The Act was passed by Congress soon after September 11, in a process many now view as hasty, and void of meaningful deliberation.

The lawsuit alleges that that the Act's infamous Section 215 - which authorizes FBI searches of records, including those of businesses, libraries and bookstores - is unconstitutional. While some sections of the Patriot Act are aimed at foreigners and immigrants, Section 215 applies to visitors, permanent residents and U.S. citizens.

The plaintiffs in the ACLU suit are six Arab-American advocacy and community groups from across the United States. Their members and clients believe they are currently the targets of government investigations because of their ethnicity, religion and political affiliations.

However, they are not the only ones who are upset about Section 215. Librarians, booksellers, and others have publicly criticized this provision and called for its repeal. Their concern is its broad reach, and lack of prior notice: Under Section 215, the government can peruse a lot of private data, without the targets ever knowing.

In my view, the ACLU and the plaintiffs are entirely right to have brought the suit. Americans should not have to worry that the FBI is rifling through their personal belongings - learning what clubs we belong to, what charities we give to, and what books we read.

Fortunately, also on July 31, Senator Russ Feingold (D-WI) introduced legislation that would roll back part of Section 215. His bill, the "Library and Personal Records Privacy Act,"should be enacted into law.

In addition, Representative Bernie Sanders (I-VT) introduced a bill protecting library and bookstore patrons in the House. The bill had bipartisan co-sponsors. But recently, it was blocked procedurally from coming to the House floor. Hopefully, similar legislation will surface.

Meanwhile, municipalities and city councils throughout the United States have passed resolutions opposing the Patriot Act - including Section 215. Plainly, public opinion is beginning to make a difference - and citizens are pressing for amendments to an Act that threatens to destroy basic civil liberties in America.

The Complexities of Section 215: What it Says, and Does Not Say

The ACLU's complaint alleges that Section 215 violates the Fourth Amendment by "vastly expand[ing]" the FBI's power "to obtain records and other 'tangible things' of people not suspected of criminal activity."

Under Section 215, these searches and seizures can occur not only without notice to the target, but also without a warrant, without a criminal subpoena, and without any showing of probable cause that a crime has been committed.

What types of records come within Section 215? They may be held by libraries, booksellers, doctors, universities, Internet Service providers, and other public entities and private sector businesses. They may consist of records, books, papers, or other personal data and property.

And to invoke Section 215, the FBI need only certify that the records are sought "for an investigation to protect against international terrorism or clandestine intelligence activities."

There is only one limitation: If the investigation is of a "United States person," defined as a permanent resident or U.S. citizen, it cannot be "conducted solely upon the basis of" First Amendment-protected activities.

Put another way, citizens can't be singled out for investigation simply because of speaking, writing or protesting, if such activity is protected as free speech. But note that, as the ACLU has pointed out, this limitation is not relevant when the investigation is of a foreign national. So the FBI presumably now feels free to ransack records relating to U.S. citizens in the course of such investigations.

Prior law only allowed such broad search powers when the FBI was investigating suspected spies. Now, under Section 215, literally anyone can be subjected to such searches.

It's important to understand that the target need not be a suspected terrorist. All the FBI must certify is that the records are sought for an investigation related to either spying, or international terrorism.

Why Section 215 Invites Abuse, and Threatens Free Speech Rights

There is an obvious potential for profiling or targeting of specific religious, political, or ethic groups. Today it may be Arab-Americans and Muslims. Tomorrow, it may be other groups.

Section 215 also imposes serious free speech costs, as the ACLU has pointed out - and thus it violates the First Amendment. It allows the FBI to easily obtain information about a person's reading habits, religious affiliations, Internet surfing and other expressive activities. Predictably, the threat of investigation will "chill" these activities. That kind of free speech chill violates the Constitution.

Meanwhile, separate provisions of Section 215 constitute even more blatant violations, for they directly target speech.

The first provision says that the agency can impose a lifelong "gag" order prohibiting anyone served with Section 215 orders - aimed, for example, at getting information about a suspect's medical history, reading habits, political activities or religious affiliation - from telling anyone else about the investigation.

The relevant portion of Section 215 says, "[n]o 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."

The upshot is this: All of the government's searches and seizures are done in secret. For example, librarians cannot tell you if the FBI has come to look at your Internet surfing habits, or to review what books you recently checked out.

The Justice Department Defends Section 215

In response to the ACLU lawsuit, the department issued a statement signed by Justice Department spokeswoman Barbara Comstock. Comstock claimed that Section 215 cannot be used to investigate "garden-variety crimes, or even domestic terrorism."

While the FBI may not be checking our library records to investigate shoplifting, the Justice Department has made other public statements about Section 215 that appear misleading.

In July, the ACLU issued a report on Section 215, "Seeking Truth from Justice - Patriot Propaganda: The Justice Department's Campaign to Mislead the Public About the USA Patriot Act." The ACLU has also issued a second report, focused on how Section 215 works in practice. It is entitled Unpatriotic Acts: The FBI's Power to Rifle Through Your Records and Personal Belongings without Telling You.

According to the former ACLU Report, Justice Department officials have, in the past suggested that Section 215 does not apply to citizens or lawful permanent residents - and, more than this, that it only applies to international terrorists.

That is simply not the case, as explained above. Citizens and lawful permanent residents may be subject to searches. They may also be the targets of an investigation of which these searches are a part - unless only free speech alone has led to the investigation.

Section 215 does protect, say, an Arab-American newspaper columnist from being investigated based on his columns alone. But it doesn't prevent him from being investigated based on the combination of his columns, and neighbors' unfounded suspicions. And it doesn't protect anyone who is not being investigated - even if the searches lead to their being investigated later!

Remember, to invoke Section 215, the FBI need only certify that the records are sought "for an investigation to protect against international terrorism or clandestine intelligence activities." That's it. Once that certification occurs, the Fourth Amendment or individual privacy rights become irrelevant.

Congress Revisits the Broad Scope of the Patriot Act

In the post-September 11 chaos and trauma, Congress did not think carefully about the USA PATRIOT Act. Fortunately, it is being to think more carefully about it now.

In late July, the House voted overwhelmingly to prohibit the FBI from spending any funds to conduct "sneak and peek" searches in criminal cases. That vote amended Section 213 of the Act - which had authorized the FBI to search peoples' homes and offices without telling them until weeks or months later.

And now, Senator Feingold has offered his Liberty and Personal Privacy Act. It would not repeal Section 215 powers altogether. But, if enacted, it would at least make a positive contribution to preserving basic civil liberties.

The Feingold bill would require the government to show some individual suspicion to obtain and review personal records, or library and bookstore records.

Specifically, it would require the government to show "specific and articulable facts" that warrant an individual being suspected of being "an agent of a foreign power."  

In passing the Feingold bill, or one like it, Congress should be careful. It is clear that the Justice Departments strategy is to enact broad language, while claiming that in practice, it will only - and can only - be applied only in the narrow circumstances.

But in a free society, we can't always trust the government to restrain its own powers. Laudable goals like stopping terrorism may lead to terrible abuses unless laws are narrowly tailored to achieve specific objectives while preserving our Constitutional rights. .

Clear, specific limitations on FBI powers should be included in any revision of Section 215, or other provisions of the PATRIOT Act.


Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology.

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