Section 215 One More Time

April 28, 2014 by Arkady Bukh

Today is the first day of the 2010 Patriot Act extensions; in particular, section 215, also known as the library provision or business records provision. Section 215 was extended another year until February 28, 2011.

This section allows FBI investigators to apply to the FISA court for an order granting access to tangible items (including books, records, papers, and other documents) in foreign intelligence, international terrorism, and clandestine intelligence cases without much regard for fourth amendment restrictions on government search and seizure. Under the PAtriot Act, investigators submit a statement of facts to the court to inform them that the request is related to an ongoing terror investigation.

Under 215, disclosure of the request to the intended target, if that can be determined, is prohibited. Probable cause is not required. This is going to open a door for FBI to investigate Identity Theft cases with the ease of Patriot Act.

Many people and groups including myself have fought against these provisions, most notably Senator, now President, Obama during his election campaign and during his stint as an Illinois senator. Current senators, like Vermont’s Senator Leahy, still take up the cause. In this Congress, Senator Leahy introduced S. 1692 which would curb the violations against civil liberties under the Patriot Act. In his originally proposed bill, the government would have to show:

• That the investigators had reasonable grounds to believe that the materials pertained to either a foreign power or an agent of a foreign power
• That the materials were relevant to the actions of a suspected foreign agent who was the subject of an investigation, or
• That it pertained to someone who was either in contact with or known to be a suspected foreign agent

Yet, even before it had a chance, Senator Leahy watered it down considerably. I won’t speculate as to his motivations, but if you search CQ Weekly you might uncover the details for yourself. Even so, the extension passed without consideration of his watered down bill, or any other bills, or any debate.

Although organizations like ALA and the ACLU have the 215 measure on their radars, I feel rather sad that what was once a hot button issue that rose to the level of a presidential campaign, did not get the press it deserves. I feel that our representatives are so preoccupied with other important issues like health care and the “war,” that they just ran out of steam when it came to civil liberties. And the rest of us are weary too.

As a resident of NYC living less than 1 mile from the World Trade Center, I must admit that I have mixed feelings about section 215 and other provisions of the Patriot Act. But, I still would appreciate the debate because, thought I know my stance on a professional level, I am still deciding where I stand on a personal level.

I may be crazy, but I do look toward our elected officials, among others, to provide that debate. The President, who was once-upon-a time a champion of civil liberties and spoke out against 215, roving wiretaps and the lone wolf provisions, signed the extension into law yesterday without a whisper. Senator Leahy chickened out. And others who would reexamine the need or utility of these provisions are not put into positions of sufficient power to do anything.

I urge AALL to join with ALA and the ACLU to amend the provisions as they currently exist. Senator Leahy’s original idea seems like a reasonable place to start.

New York City Defense Attorney can help you understand the do’s and don’ts under section 215.