Reading for Terrorism: Section 215 of the USA Patriot Act and the Constitutional Right to Information Privacy

Journal of Legislation Volume 31 | Issue 1 Article 5 1-1-2005 Reading for Terrorism: Section 215 of the USA Patriot Act and the Constitutional Right to Information Privacy Michael J. O'Donnell Follow this and additional works at: http://scholarship.law.nd.edu/jleg Recommended Citation O'Donnell, Michael J. (2005) "Reading for Terrorism: Section 215 of the USA Patriot Act and the Constitutional Right to Information Privacy," Journal of Legislation: Vol. 31: Iss. 1, Article 5. Available at: http://scholarship.law.nd.edu/jleg/vol31/iss1/5 This Article is brought to you for free and open access by the Journal of Legislation at NDLScholarship. It has been accepted for inclusion in Journal of Legislation by an authorized administrator of NDLScholarship. For more information, please contact . ARTICLES READING FOR TERRORISM: SECTION 215 OF THE USA PATRIOT ACT AND THE CONSTITUTIONAL RIGHT TO INFORMATION PRIVACY Michael J. O'Donnell* I. INTRODUCTION The Anarchist's Cookbook. Slaughterhouse Five. Mein Kampf Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture. The Turner Diaries. What do these controversial books say about their readers? Is it safe to assume that they are anarchists? Anti-war activists? Nazis? Drug lords? Terrorists? In a culture fiercely protective of free speech, the answers to these questions at first blush seem obvious: of course not. Most of the readers are academics, students, concerned parents, or just curious citizens. Yet in the wake of the devastating terrorist attacks of September 11, entrenched American assumptions about the freedom to read without fear of persecution are under question. In particular, a controversial provision of the USA PATRIOT Act has sparked an intense debate about whether reading materials are an appropriate subject of inquiry for law enforcement officials investigating terrorism. Section 215 of the USA PATRIOT Act amended and expanded the Foreign Intelligence Surveillance Act's (FISA) 2 provisions governing access to "business records" for international terrorism and foreign intelligence investigations. 3 This provision of FISA allows FBI officials to order the production of documents and records; upon an application, an Article III or magistrate judge then enters an ex parte order compelling the release of the items sought. 4 Section 215 made several significant changes to FISA's business records section. First, it expanded the type of records that FBI officials could request. FISA had allowed requests for the records of transportation * Staff Law Clerk, United States Court of Appeals for the Seventh Circuit. J.D. Boston College Law School; B.A. Indiana University. Thanks to John Gordon and Kent Greenfield at Boston College Law School for their helpful suggestions, and to Lawrence Friedman of New England School of Law for his substantive comments and encouragement. Thanks also to Angela Petrucci and Juan Castaneda at the Notre Dame Journalof Legislation for their able editorial assistance. 1. See The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 § 215, 18 U.S.C. §§ 1861-62 (Supp. 1 2001) (hereinafter "USA PATRIOT Act"]. 2. The Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783, (codified as amended in scattered sections of 8, 18, 47, and 50 U.S.C.) [hereinafter "FISA"]. 3. See USA PATRIOT Act § 215. 4. See id. at § 215 (a)(l), (b)(1) & (2), (c)(l). Journalof Legislation [Vol. 31:1 carriers, hotels, storage locker facilities, and vehicle rental agencies only. 5 After amendment by the USA PATRIOT Act, the provision now allows requests for any relevant "tangible item (including books, records, papers, documents, and other items), ' 6 which, as interpreted by Attorney General John Ashcroft, authorizes the FBI to obtain such articles as education records, computer files, and, significantly for the purposes of this Article, book purchase and library borrowing records. 7 Second, section 215 amended FISA to allow the FBI to apply for an order without showing any suspicion that the target of the investigation is involved in terrorism or proof that the requested items show involvement in terrorist activity; the records merely must be "sought for" a foreign intelligence or terrorism investigation. 8 Third, section 215 imposes a gag order prohibiting all individuals, including those to whom the FBI directs '9 its section 215 requests, from disclosing the fact of the requests "to any other person. Section 215 has become the object of intense controversy and criticism. Civil 12 11 liberties organizations, the American Library Association, and the popular press have denounced the USA PATRIOT Act in general, and section 215 in particular. A bill entitled the "Freedom to Read Protection Act," introduced by Representative Bernard Sanders of Vermont and co-sponsored by 144 members of Congress in 2003, is among several legislative proposals seeking to exempt libraries and bookstores from the reach of section 215; it currently awaits further action in a House subcommittee. 13 The American Civil Liberties Union (ACLU), on behalf of six Arab and Islamic 5. See 50 U.S.C. § 1862(a) (2000) (prior to 2001 amendment). 6. USA PATRIOT Act § 215(a)(1). 7. See Hearingon the USA PATRIOT Act Before the House Comm. on the Judiciary, 108th Cong. 45 (2003) (testimony of John Ashcroft, Attorney General). 8. Compare USA PATRIOT Act § 215(b)(2), with 50 U.S.C. § 1862(b)(2)(B) (2000) (prior to 2001 amendment). 9. USA PATRIOT Act § 215(d). For further analysis of the section 215 changes to FISA, see generally CHARLES DOYLE, CRS REPORT FOR CONGRESS, LIBRARIES AND THE USA PATRIOT ACT (2003), available at http://www.ala.org/ala/washoff/WOissues/civilliberties/theusapatriotact/CRS215LibrariesAnalysis.pdf (last visited Oct. 21, 2004). 10. See, e.g., Ann Beeson & Jameel Jaffer, American Civil Liberties Union, UnpatrioticActs: The FBI's Power to Rifle Through Your Records and PersonalBelongings Without Telling You (2003), available at http://www.aclu.org/Files/OpenFile.cfm?id=13245 (last visited Oct. 21, 2004); Lawyers Committee for Human Rights, Assessing the New Normal: Liberty and Securityfor the Post-September11 United States 1530 (Fiona Doherty & Deborah Pearlstein eds., 2003), available at http://www.humanrightsfirst.org/pubs/descriptions/Assessing/AssessingtheNewNormai.pdf (last visited Oct. 21, 2004). 11. See American Library Ass'n, Resolution on the USA PATRIOT Act and Related Measures that Infringe on the Rights of Library Users (Jan. 29, 2003), available at http://www.ala.org/Template.cfm?Section=ifresolutions&Template=/ContentManagement/ContentDisplay.cf m&ContentlD=l 1891 (last visited Oct. 21, 2004) [hereinafter ALA Resolution]. 12. See, e.g., Editorial, Ashcroft's Dragnet, BOSTON GLOBE, Sept. 9, 2003, at A14; Editorial, Don't Let Patriot Act Go Overboard, ATLANTA J. CONST., Aug. 25, 2003, at 10A; Editorial (...truncated)