Perhaps the most controversial part of the act is section 215. It gives the FBI unprecedented access to the communication, research, and reading habits of the public. Before Patriot, the FBI could subpoena business records only from rental-car agencies, transportation services, storage facilities, and the like. Section 215 allows the government to get “any tangible thing” via a subpoena—library, academic, financial, travel, and medical records; bookstore transaction receipts; Internet use logs; and so on. A secret court in a closed proceeding must issue the subpoena on request without the FBI having to show probable cause or even reasonable grounds to believe the subject is engaged in terrorism or other crime. It doesn’t even have to show how or why it might need the records, only that they are relevant to an ongoingnational security investigation.
Patriot forbids recipients of a section 215 subpoena to tell anyone that they received it. The only limit to the government’s power here is that the investigation may not be based “solely” on a citizen’s First Amendment activities (though it can be based solely on a noncitizen’s First Amendment activities). Based on this limit, the Justice Department claims that the alarm expressed by the American Library Association, the American Booksellers Association, and other publishing industry groups over section 215 is excessive.
Opponents point out that even if agents of the FBI never misuse their new power, the very fact that the government can study what people are reading threatens our intellectual freedom by inhibiting what we choose to read—a classic chilling effect on free expression. Protests against section 215 cut across the political spectrum. Organizations as varied as the American Conservative Union, the NRA, the Electronic Frontier Foundation, and the NAACP decry its intrusion into privacy.
Opposition to section 215 is widespread and active, notably within the book community. At least four states and 299 communities have passed resolutions opposing this part of Patriot and recommending that local businesses and institutions, especially libraries and bookstores, destroy or not gather information that identifies patrons by name.
The ACLU has sued to challenge section 215’s gag order as violating the First Amendment. A district court judge in Detroit is expected to rule on the government’s motion to dismiss the suit this year. In a separate suit, the ACLU and an unnamed Internet service provider that received an FBI “National Security Letter” demanding customer records sued over the forced disclosure of personal information without any judicial oversight. (Before Patriot, the FBI could issue NSLs only to those actually suspected of terrorism or of being foreign spies.) Patriot’s gag order prevented the plaintiffs from divulging the existence of the suit for weeks until they were able to negotiate with the government about what little they were permitted to say publicly. The ACLU has moved for the public release of more information in the case and for summary judgment. The motions are under consideration by a district court in New York City.
In a speech last fall in which he defended the Patriot Act, Attorney General John Ashcroft called concerns about section 215 “baseless hysteria” and said that it had never been used against a library or bookstore. A survey done a few months later of more than 500 libraries in Illinois showed that 7 had received FBI requests for information about patrons or borrowing records and another 17 had gotten requests from police or other agencies. Eight of the 24 reported that the requests were made for a national-security investigation. An earlier study cited by the ACLU said more than 85 out of some 1,500 libraries nationwide had been approached by December 2001. The Justice Department now says the number of libraries subpoenaed is “classified information.”
THE PROGNOSIS FOR PATRIOT
Much of the Patriot Act, including section 215, will expire at the end of 2005. The president has recently called for those expiring provisions to be renewed permanently. One of the most troubling aspects of the act is that the Congress that must decide whether to renew these provisions has only limited oversight of how and to what end the expanded powers are being used. In a June 2002 hearing, the Justice Department would not give the House Judiciary Committee information it sought about the results of the greater surveillance under Patriot, claiming that much of the information Congress requested is “classified.”
The Administration has drafted new legislation, dubbed “Patriot II,” details of which were leaked late last year. This bill would, among other things, expand the wiretapping authority of the agencies and allow for collection of DNA samples of innocent citizens. After loud public protests from even some administration supporters, the legislation was not introduced, but it wasn’t disavowed, either. The ACLU has expressed concerns that some parts of Patriot II will be added piecemeal to existing legislation.
More than 150 legislators, including Democrats, Independents, and Republicans, are sponsoring legislation that would amend section 215. The various bills include the Freedom to Read Protection Act, which would exempt bookstores and libraries from the subpoenas and the Security and Freedom Ensured (SAFE) Act, which would require a stronger showing of necessity to issue subpoenas.
IF YOU WANT TO TAKE ACTION
In February, PEN American Center, the American Library Association, and the American Booksellers Foundation for Free Expression started a drive to collect one million signatures for a petition to Congress in support of the numerous bills introduced to limit the broad subpoena power over libraries and bookstores. You can sign the petition online by visiting: www.readerprivacy.com. At the same Web site, there are detailed instructions for contacting your representatives to enlist their support for the various bills.
The ACLU, which has been very active in challenging and monitoring the Patriot Act, offers many ways for people to, as they put it, “keep America safe and free.” Find out more at: www.aclu.org.
Kay Murray is general counsel and assistant director of the Authors Guild, the nation’s largest organization of published writers.