Security and Privacy

DOJ Says It Has Never Used Key PATRIOT Provision

CDT Analysis

September 23, 2003

The Department of Justice announced on September 18 that it had never once used a contentious provision of the USA PATRIOT Act authorizing the FBI to obtain a court order for disclosure of business records. The announcement highlights some of the confusion caused by the excessive and unnecessary secrecy that has surrounded DOJ implementation of the PATRIOT Act. It leaves unanswered a host of questions about how the FBI actually does obtain business records.

The provision at issue is Section 215 of the USA PATRIOT Act, which amended a provision of the Foreign Intelligence Surveillance Act authorizing court orders to compel the disclosure of business records. Pre-PATRIOT, the law authorized the FBI to apply for a court order for disclosure of travel records (hotel, motel, car rental, airline reservation) and storage facility records, if there was reason to believe that the records pertained to a suspected spy or member of an international terrorist group. The PATRIOT Act amended the provision to apply to all business records (including, theoretically, records of non-profits like libraries). It also eliminated the requirement to show some factual basis for believing that the records pertain to a spy or a terrorist. Under the new provision, the government doesn't even have to target the records of a particular person; as we read the provision, it can ask for entire databases. And every Section 215 order includes a gag order, prohibiting recipients of such orders from telling anybody else they got one.

The controversy over libraries is in large part of the Justice Department's creation.

In repeated answers to Congressional questions, the DOJ has said that the PATRIOT Act provision could be used against libraries. In December 23, 2002 letter to Sen. Leahy, DOJ said, "This authority can be used for obtaining certain types of records from libraries that relate to FBI foreign intelligence investigations." Compounding the controversy, DOJ has said that post-PATRIOT, it has sought and obtained library records. At a May 20, 2003 hearing, Assistant Attorney General Viet Dinh said, in response to a question about the PATRIOT Act, "We have made, in light of recent public information concerning visits to library, we have conducted an informal survey of field offices relating to the -- its visits to library. And I think the result from this informal survey is that libraries have been contacted approximately 50 times based upon articulable suspicion or calls -- voluntary calls from librarians regarding suspicious activity. Most if not all of these contacts that we have identified were made in the context of a criminal investigation and pursuant to voluntary disclosure or a grand jury subpoena in that context."

As late as September 15, the Attorney General was ridiculing the American Library Association's criticism of the Act, not by saying that the FBI never sought library records, but by defending the law's "very particular and very demanding" requirements.

More generally, the DOJ cited Section 215 as one of the more effective provisions of the PATRIOT Act. As of September 22, the DOJ website http://www.lifeandliberty.gov/, cited Section 215 under the heading "The Act Improves Our Counter-Terrorism Efforts in Several Significant Ways:" The website goes on to say:

"Allows federal agents to ask a court for an order to obtain business records in national security terrorism cases. Examining business records often provides the key that investigators are looking for to solve a wide range of crimes. Investigators might seek select records from hardware stores or chemical plants, for example, to find out who bought materials to make a bomb, or bank records to see who's sending money to terrorists. Law enforcement authorities have always been able to obtain business records in criminal cases through grand jury subpoenas, and continue to do so in national security cases where appropriate. ... In national security cases where use of the grand jury process was not appropriate, investigators previously had limited tools at their disposal to obtain certain business records. Under the Patriot Act, the government can now ask a federal court (the Foreign Intelligence Surveillance Court), if needed to aid an investigation, to order production of the same type of records available through grand jury subpoenas."

The DOJ website even singles out libraries as holding potentially useful information that investigators can obtain under Section 215:

"Historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. If terrorists or spies use libraries, we should not allow them to become safe havens for their terrorist or clandestine activities. The Patriot Act ensures that business records - whether from a library or any other business - can be obtained in national security investigations with the permission of a federal judge." http://www.lifeandliberty.gov/subs/u_myths.htm

Congress has also conveyed the impression that Section 215 was being used effectively. On October 17, 2002, the House Judiciary Committee issued a press release indicating it was satisfied with the Department's use of section 215: "The Committee's review of classified information related to FISA orders for tangible records, such as library records, has not given rise to any concern that the authority is being misused or abused."

Now, the DOJ claims that criticism and defense were both misguided, for Section 215 has never been used, not for the travel records covered pre-PATRIOT, not for library records, not for records of people taking scuba lessons or buying bomb-making materials or anything else.

What gives?

It's a little hard to say what's really going on here. One factor to consider is that the DOJ has at its disposal many different authorities other than Sec. 215 for getting business records.

Conclusion

It's still not clear that we have the full picture. It seems very strange that since the PATRIOT Act was enacted in October 2001 the DOJ has never once used Section 215 to compel disclosure of travel records or car rentals records or records of the purchase of bomb-making material or anything else.

With that caveat, the recent DOJ disclosure that there have been zero Section 215 orders seems to have several implications:

  1. PATRIOT critics and defenders have been talking past each other, to the detriment of sound policy. DOJ is as much to blame for this as its critics. If anything, the DOJ, which is in possession of the facts, is more to blame, since in this case it definitely created the impression that it was using Section 215.
  2. The Attorney General's claim in the fall of 2001 that all the authorities in the PATRIOT Act were urgently needed to prevent an imminent new terror attack is shown to be hyperbole. Also misleading were subsequent DOJ defenses of the Act claiming without distinction that it had been used successfully in the war against terror.
  3. The release of the previously classified number "zero" illustrates that the DOJ can be much more forthcoming in describing publicly how the PATRIOT Act is being implemented.
  4. The provisions of the criminal law system and the more targeted provisions of the PATRIOT Act give the government considerable power to get the information it needs, without resorting to the unchecked type of authority granted by Section 215. Narrowly-focused powers with checks and balances are sufficient to the fight against terrorism. Further review of the PATRIOT Act and other government anti-terrorism initiatives should identify other authorities that are unnecessary or that could be equally effective with the addition of meaningful standards, oversight and public accountability. To that end, serious attention should be paid to current legislative efforts already under way, including such bills as the Protecting the Rights of Individuals Act (S. 1552, introduced by Senators Murkowski and Wyden), the Freedom To Read Protection Act (H. 1157, introduced by Rep. Sanders), and the Library, Bookseller, and Personal Records Privacy Act (S. 1507, introduced by Sen. Feingold).