Access to Business Records under FISA ("Libraries Provision")
Pen Register and Trap and Trace Authority under FISA
Section 215 revises substantially the authority under the FISA for seizure of business records, including third party records of individuals' transactions and activities. Previously, FISA section 501 permitted the FBI to apply to the Foreign Intelligence Surveillance Court ("FISC") for an order to seize business records of hotels, motels, car and truck rental agencies, and storage rental facilities. Section 215 broadens that authority by eliminating any limitation on the types of businesses or entities whose records may be seized. In addition, the section expands the scope of the items that the FBI may obtain using this authority from "records" to "any tangible things (including books, records, papers, documents, and other items)." The recipient of the order may not disclose the fact that the FBI has sought or obtained records.
Section 215 also eases the requirements for obtaining an order to seize business records. Previously, FISA required the FBI to present the FISC "specific articulable facts giving reason to believe" that the subject of an investigation was a "foreign power or the agent of a foreign power." After section 215, the government is required only to assert that the records or things are sought for a foreign intelligence investigation or to protect against international terrorism or clandestine intelligence activities, although the investigation of a United States person may not be "solely upon the basis of activities protected by the first amendment to the Constitution." There is no requirement for an evidentiary or factual showing and the judge has little discretion in reviewing an application. If the judge finds that "the application meets the requirements" of the section, he or she must issue an order as requested "or as modified."
Section 214 makes similar changes to procedures for obtaining pen register or trap and trace orders under FISA." Pen registers" and "trap and trace" devices record information about the recipient and source, respectively, of a communication. They do not intercept the contents of communications. Previously, FISA section 402 required the government to certify to the FISC that there was reason to believe a line monitored by one of these devices would be used by an individual or a foreign power engaged in international terrorism or spying that violates U.S. criminal laws. After section 214, there is no such certification required. Instead, the certification requirements are similar to those described above for business records.
Section 216, which does not sunset, changed the definitions of "pen register" and "trap and trace" to clarify that they apply to email and internet, as well as telephone communications.
Sections 214 and 215 of the Patriot Act expanded the government's authority under the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq. (2000 ed.)) to, respectively, conduct pen register/trap-and-trace surveillance, and compel production of business records. The lion's share of this discussion will focus on Section 215.
None of the Patriot Act's enhancements of government's investigative arsenal has been more assiduously libeled than Section 215. Indeed, in the public mind, it has become the "library records' provision notwithstanding that libraries are nowhere mentioned. While there are points of legitimate concern, most of the controversy is a tempest in a teapot. Section 215 is a good law. It merits being made permanent, albeit with some tailoring to provide expressly for the now-implicit ability of production-order recipients to seek judicial narrowing. Beyond that, altering this provision out of overwrought suspicions about potential abuse would likely, and perversely, result only in greater potential abuse.
Section 215 modified FISA in two ways. The first relates to what information may be compelled. Formerly, this was restricted to travel, lodging and storage records. Section 215 broadens the scope to include not merely such business records but "any tangible things (including books, records, papers, documents, and other items).'
This is not nearly as dramatic as it appears. For decades, Rule 17(c), Fed.R.Crim.P., has authorized compulsory production of "any books, papers, documents, data, or other objects' to criminal investigators by mere subpoena. Given the incontestable breadth of the federal criminal statutes implicated by terrorism and espionage, coupled with the broad license grand juries have to conduct investigations, there is no item now obtainable by Section 215 that could not already be compelled by simple subpoena (and thus made accessible to intelligence agents, who are now permitted to share grand jury information).
Andrew McCarthy has presented a defense of Sections 214 and 215 of the Patriot Act essentially as drafted, and stated that they should be renewed permanently rather than being allowed to sunset at the end of 2005. Mr. McCarthy gives a clear and articulate statement of positions that the U.S. Department of Justice has presented on these issues. In this response, I explain reasons for considerably greater skepticism toward the current Section 215, especially with respect to the so-called "gag rule" provision that Mr. McCarthy does not discuss. I also explain, much more briefly, some concerns with the current Section 214. My discussion here builds on my study on "The System of Foreign Intelligence Surveillance Law," published in the George Washington Law Review and available in the publications section of my web site at www.peterswire.net. It also builds on my experience chairing a White House Working Group in 2000 on how to update wiretap and surveillance laws for the Internet age.
The much broader scope of records searches under Section 215. Section 215 of the Patriot Act expanded the sweep of Foreign Intelligence Surveillance Act ("FISA") orders to compel production of business records and other tangible objects. The original FISA had focused on electronic surveillance and had not created a FISA mechanism for the government to get business records. After the Oklahoma City and first World Trade Center bombings, Congress authorized the use of FISA orders for travel records only.Section 215 contained two statutory changes that greatly expanded this power. First, the type of records subject to the order went far beyond travel records. Now the search can extend to "any tangible things (including books, records, papers, documents, and other items) . . . ." By its terms, the statute apparently would allow a FISA order to trump other laws that usually govern the release of records, including for medical records and other categories of records that are generally subject to privacy protections.
Professor Peter Swire's thoughtful response goes wrong in three major respects.
First, he gives short shrift to the national security threat. If we were not actually facing a public safety challenge, individual interests in the privacy of financial, medical and reading records could sensibly be elevated. But national security is the highest public interest, and when it is truly threatened, as it is now, it makes no sense to give individual interests primacy over the public's need to have foreign enemies thoroughly checked—particularly when the Supreme Court has made plain that there are no expectations of privacy in third-party records.
This failing infects even the worthy concern over Section 215's "gag rule." The desirability of openness as a check on government over-reaching is unassailable if national security is not threatened. A public safety threat, however, requires reasonable balance between the public interest in disclosure and the reality that disclosure makes our enemies, to be blunt, more efficient at killing us. The appropriate balance is to presume that Justice Department personnel will perform their functions honorably, but to expect searching congressional oversight.
In reality, the vast majority of third-party subpoena recipients have no interest in disclosure. Given the stakes involved, any modification of the gag rule should put the onus on the few who do to explain why they should not remain mum. As for the suggestion that prosecution is an adequate check on irresponsible disclosures, that is classic pre-9/11 mindset. If a terror organization lives to kill another day because a subpoena recipient compromised an investigation, it will be cold comfort that the recipient can be prosecuted for obstruction of justice.
The second error is an inaccurate portrait of how government actually works. It begins the regulator's common failure to perceive that when government's hands are tied out of a hyper-fear of corrupt behavior, the only hands being tied belong to the honest people—the occasional rogue will be a rogue no matter what the rules are. Again, when public safety is at issue, it is perilous to hamper responsible officials in pursuit of an illusion that the few bad people will conform.
Further, there isn't time, in the information age, for investigators to be looking at everything we actually want them to look at. The thought that they have the time and inclination systematically to snoop on people's private affairs for illegitimate reasons is not reality, and is not an appropriate operating assumption. Watergate-era abuses are frequently raised in this context, betraying a counterfactual notion that we stopped growing in the 1970's. The executive branch knows that history as does the congress. Mindful of it, they perform and oversee. Complemented by the political check of the ballot box, this is our best assurance that the mistakes of the past will not recur.
Finally, the suggested regulations will not have the desired effect. They will merely chase investigations into the criminal justice system where none of the oversight mechanisms inherent in Section 215 exist. The claim that the criminal sphere somehow limits executive action because of a requirement "that a crime has been, is, or will be committed" is wrong. Grand juries may investigate on the rankest suspicion or even to satisfy themselves that no crime has been committed. Assuming arguendo that Justice Department practice could temper this limitless authority, the fact is that terrorist conspiracies (al Qaeda, Hezbollah, etc.) are ongoing. Crimes are being committed, the criminal statutes are tremendously broad, and there simply is no matter remotely touching on terrorism that a grand jury is barred from investigating.
Although Andrew McCarthy begins by describing my essay as "thoughtful,' he unfortunately then descends into rhetoric that has been far too common in the debates about the Patriot Act: my writing reveals "a classic pre-9/11 mindset"; it gives "short shrift to the national security threat"; and the documented history of abuse in Watergate and other eras is irrelevant because "the executive branch knows that history" and so abuses of power won't happen again. In fact, as Mr. McCarthy knows, my short essay draws on a much longer law review article, and that article addresses each of those points in detail.
Let's sum up the debate on Section 215. Mr. McCarthy and I agree that the law should be changed to allow lawyers to be contacted by the party who receives the order. We agree that the law should be changed to permit that party to go to court to seek to narrow an overbroad or unduly burdensome governmental request. (Although he does not address the issue, I hope he would agree that the same rights are appropriate for parties who are subject to National Security Letters.)>
On the gag rule, Mr. McCarthy relies on executive branch restraint and Congressional oversight. Under the gag rule as currently written, it is likely a crime for persons to tell Congress that they have been subject to a 215 order or National Security Letter. That leaves us with only executive branch self-restraint. I have proposed a number of possible modifications to the gag rule. All of them are designed to provide public accountability while minimizing the likelihood of leaking information to terrorists. I try in my writings never to be alarmist. That said, the current gag rule is wildly outside of the American tradition and should be amended.