House Approves Amendment Related to Section 215 of the PATRIOT Act

6/15. The House approved an amendment to HR 2862, the "Science, the Departments of State, Justice, and Commerce, and Related Agencies Appropriations Act for Fiscal Year 2006" that pertains to Section 215 of the USA PATRIOT Act. The amendment was offered by Rep. Bernie Sanders (VT).

The vote was 238-187. The vote was largely partisan. Democrats voted 199-1 for the amendment. Republicans voted 38-186. See, Roll Call No. 258.

Sanders Amendment. This is an appropriations bill. Hence, it contains no substantive law. The amendment merely limits the use of funds appropriated by this bill for certain purposes.

It reads as follows: "None of the funds made available in this Act may be used to make an application under section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) for an order requiring the production of library circulation records, library patron lists, book sales records, or book customer lists."

§§ 215 and 501. § 215 of the PATRIOT Act pertains to access to business records under the Foreign Intelligence Surveillance Act (FISA). Library records are a form of business records, and interest groups such as the American Library Association (ALA) oppose the provision. In contrast, the Department of Justice (DOJ) is adamant about the importance this provision. Several DOJ witnesses have testified at various hearings that they do not want to allow libraries to become safe havens for terrorists.

§ 215 of the PATRIOT Act is titled "Access to records and other items under the Foreign Intelligence Surveillance Act". The FISA only applies to foreign powers, and agents of foreign powers, including international terrorists. § 501 of the FISA enables the FBI to obtain from a judge or magistrate an order requiring the production business records. While the statute does not expressly include library records, it is not disputed that library records could be obtained.

§ 215 rewrote § 501 of the FISA, which is codified in Title 50 as § 1861. It pertains to "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations". § 215 (of the PATRIOT Act) replaced §§ 501-503 (of the FISA) with new language designated as §§ 501 and 502.

Currently, § 501 (as amended by § 215) requires that an application to a judge or magistrate "shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."

Consequences. Allowing § 215 to sunset would raise the standards for obtaining a FISA order for business records. If the Sanders amendment were to become law, certain library records would become completely beyond the reach of § 501.

Nevertheless, the Sanders amendment is largely symbolic, and would have very limited consequences. First, this is an annual appropriations bill. It only applies for one fiscal year.

Second, this only applies to the use of Section 501 of the FISA to obtain records. It does not affect other procedures or authorities that the DOJ might use to obtain library records, such as a grand jury subpoena, or a warrant obtained pursuant to probable cause.

Third, this will only affect records held by the library. In the case of use of a library's internet connected computers, the pertinent party would mostly likely be the library's internet service provider (ISP). The Sanders amendment does not affect the DOJ's ability to go to the ISP for records and information. Also, since the amendment enumerates the types of library records, and does not reference internet records, the amendment does affect internet access records that the library possesses, if any.

Rep. Sanders acknowledged this during the House debate. He said that "I have heard from some Members who have expressed concerns about the possible need for the FBI to access library Internet records. Some Members believe that by exempting library Internet records from section 215 , we could be creating an opportunity for terrorists. The amendment today addresses that concern and does not apply to library Internet records. Under this amendment, the FBI could still use a section 215 order to obtain these records. This amendment only applies to the records that contain information on which books people are checking out of the library or buying from a bookstore."

Also, the Crime Subcommittee held a hearing on § 215 on April 28, 2005. Gregory Nojeim, of the ACLU, testified that even if the Congress were to amend § 215 to exempt library records, the FBI would still be able to obtain a library's internet use records from its ISP with a national security letter under the new powers provided by § 505(a) of the PATRIOT Act. Moreover, a national security letter requires no prior court approval. See, story titled "House Crime Subcommittee Holds Hearing on Library and ISP Records and § 215 of the Patriot Act and National Security Letters" in TLJ Daily E-Mail Alert No. 1,125, April 29, 2005.

Fourth, this issue is more hypothetical than real. DOJ representatives have testified that the DOJ has not used Section 215 authority to obtain records from libraries.

In contrast, many of the other sunsetted provisions of Title II of the PATRIOT Act pertain to communications and new information technologies, and are used with greater frequency.

Prospects for Future Limitations Upon PATRIOT Act Authority. The breakdown of the vote on the Sanders amendment may be significant. While 38 Republicans voted the bill, only one of these, Rep. Jeff Flake (R-AZ), is a member of the House Judiciary Committee (HJC).

That is, 38 out of 230 Republicans (16.5%) voted for the amendment. 1 out of 23 Republicans on the HJC (4.3%) voted for the amendment. The 38 were enough to overcome the Republican majority in the House. A swing of one vote will not tip the balance in the HJC.

The HJC Committee and its Crime Subcommittee, have just completed a series of about a dozen detailed oversight hearings on the sixteen sections of the PATRIOT Act, including Section 215, that are scheduled to expire at the end of this year, unless extended.

The HJC will likely produce a bill that extends some or all of the sunsetted provisions of the PATRIOT Act. That only one member of the HJC voted for the Sanders amendment may indicate that there is not now much support among HJC Republicans for imposing further sunsets, reporting requirements, or other checks on PATRIOT Act powers.

If there is not much Republican support on the HJC for imposing limits on PATRIOT Act powers, one reason may be the events of Friday, June 10. See, story titled "Commentary: Partisan Theatrics Threaten Efforts to Place Limits in Title II of PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,152, June 13, 2005.

There is also the matter that by holding a vote on this PATRIOT Act issue, many members now have cover for not voting for future proposals to impose limits on PATRIOT Act powers. They can inform their constituents that they voted for the Section 215 amendment.

See also, Rep. Sanders' release.