The Justice Department has charged that the media and civil liberties advocates are misrepresenting the procedures and effect of section 215 of the USA PATRIOT Act (PL 107-56). The civil liberties community stands by its claims.
Section 215 of the USA PATRIOT Act, entitled “Access to Records and Other Items Under the Foreign Intelligence Surveillance Act,” revises the Foreign Intelligence Surveillance Act of 1978 (FISA). Section 215 provides that designated FBI personnel may apply to the FISA court for an order requiring the production of business records relevant to an investigation concerning international terrorism or clandestine intelligence activities, provided that investigation of a U.S. person (a U.S. citizen or legal permanent resident) may not be conducted solely on the basis of First Amendment protected activities. Once the application is submitted, the FISA judge shall issue the order as requested or as modified if the application is complete. The order shall not disclose that it is issued for the purpose of a terrorism investigation. In addition, the person on whom the order is served or who produces the records may not disclose to anyone that the FBI has sought or obtained records. Twice a year, the Attorney General must inform specific Congressional committees of the number of applications submitted and the number of applications granted, modified, or denied within the previous six months.
On July 30, 2003, Barbara Comstock, Director of Public Affairs for the Justice Department, issued a press release regarding Section 215 of the USA PATRIOT Act. Let’s look at the claims in her statement and compare them to the reality of section 215.
Narrow Scope:
Rhetoric: Ms. Comstock stated that section 215 has a “narrow scope” - that it “can only be used . . . (1) to obtain foreign intelligence information about people who are neither American citizens nor lawful permanent residents; and (2) to defend the United States against foreign spies or international terrorists.”
Reality: Section 215 affects business records relevant to an investigation concerning international terrorism or clandestine intelligence activities. The term “business records” includes library records, bookstore and other commercial purchase records, medical records, psychiatric or psychological therapy records, education records, genetic records, insurance records, travel records - the term “business records” captures a broad range of information. “Foreign intelligence information” need not be exotic. It can be related to everyday, personal records concerning an individual’s life, as long as the investigator correlates those records to an investigation in some way.
And, this section can be used against anyone. If the suspect is a U.S. person, the basis for the investigation has to be something in addition to protected First Amendment activity (e.g., speech, reading, association with others, political, or religious activity). However, even records of protected First Amendment activities can be searched as long as records of non-protected activities are also under investigation. In addition, a U.S. person’s records may be searched to further an investigation of a suspect who is not a U.S. person.
To make things more unsettling, because the definition of “foreign terrorism” is so broad, people in the U.S. may participate in a seemingly innocent activity (e.g., contributing to a reputable agency for humanitarian assistance) that is actually suspect in the eyes of the Justice Department.
First Amendment Rights:
Rhetoric: Ms. Comstock stated, “FBI agents are prohibited from using a suspect’s exercise of First Amendment rights as a pretext for seeking records or information.”
Reality: Under section 215, if the suspect is not a U.S. person, the FBI may base its investigation on all activities, including those protected by the First Amendment. If the suspect is a U.S. person, the FBI can base its investigation on activities protected by the First Amendment, as long as protected activities are not the only basis for the investigation.
Court Order Requirement:
Rhetoric: Ms. Comstock noted the requirement for the FBI to receive “a court order,” elaborating that FBI agents can obtain business records “only by appearing before the FISA court and convincing it that they need them.”
Reality: When the Justice Department says that section 215 requires a “court order,” many people assume that the FBI has to produce evidence for a court to weigh, that the FBI has to have probable cause of commission of a crime (past or present), or that the judge can refuse to issue the warrant if the judge doesn’t think the evidence justifies issuing the order. None of those assumptions apply to a section 215 application. Normal judicial supervision of the search warrant process is reduced to a rubber stamp of the application’s careful preparation by the FBI.
Applications for warrants under section 215 are made to a FISA court judge (a federal judge appointed by the Chief Justice of the U.S. Supreme Court without confirmation by the Senate), or to a federal magistrate judge, also especially appointed by the Chief Justice of the U.S. Supreme Court. The proceedings are ex parte, meaning that they are obtained without notice to the suspect. The order may not specify that it is issued for the purposes of the terrorism investigation. And, the individuals served with the order and responding to the order are prohibited from informing the suspect or any third party that the order has been served.
Section 215 allows the government to obtain records without probable cause of past or planned criminal conduct. The FBI’s application must merely certify that the investigation is relevant to an ongoing investigation. Once this request is presented in the proper format, the FISA judge must then issue the warrant. The judge has no discretion to refuse the FBI’s request for a section 215 business records search warrant unless the certification is incomplete.
In addition, the work of the FISA court is all conducted ex parte (without notice to or participation by the other party; only the FBI even knows the court is considering the application). Add to this secrecy the a gag order preventing the business served with the order from telling anyone about the order, and what results is that the people whose records are being searched have no way to defend themselves. For example, they have no way to present an argument to any court that there has been a mistake in identity, or that the search arises solely from protected First Amendment activity.
And further, many people assume that “court proceedings” are monitored by the press and through the press is available for public scrutiny. Again, these assumptions are not true when applied to the FISA court. The FISA “court” is a secret chamber with very different rules and procedures than those most people in the United States associate with a “court.” The Justice Department is using familiar language, but with unstated definitions.
It is also important to note that under constitutionally sound procedures, approved by the U.S. Supreme Court, courts and prosecutors have the ability to shield warrants from the view of the suspect in cases where evidence may be destroyed or other security needs are at risk. The Justice Department does not need this tool to safeguard sensitive searches.
Congressional Oversight:
Rhetoric: Ms. Comstock describes section 215's requirement for reports to Congress of the number of applications and the number of orders issued as “thorough.”
Reality: Far from being “thorough,” the reports required by section 215 are barely minimal. The Attorney General is required each six months merely to inform Congress of how many applications the FBI submitted to the FISA court and how many orders the FISA court granted. The reporting requirement does not include such vital information as how the section 215 applications and FISA court orders related to terrorism, how many of the orders were actually served, or whether those orders served resulted in meaningful information in service to fighting terrorism.
