Section 215: Access to Records
Section 215 revises the Foreign Intelligence Surveillance Act (FISA) of 1978, legislation that was passed in response to domestic spying scandals under the Kennedy, Nixon and Johnson administrations. FISA created a distinction between the standards law enforcement is required to meet in order to obtain electronic surveillance warrants in criminal vs. intelligence investigations. The Justice Department contends these revisions will be a tremendous aid to fighting terrorism because they remove unnecessary bureaucracy and maintain the secrecy necessary for delicate terrorist investigations. The ACLU's Constitutional challenge claims that forbidding those served from acknowledging their role in an investigation is a violation of the First Amendment, and the requisition of information in secret is a violation of the Fourth Amendment. More generally, the ACLU suggests that the atmosphere of fear surrounding Section 215 discourages discussion and ultimately, free speech.
This section has also drawn the ire of librarians and booksellers, who are contentious about their role as third party providers of information during counterterrorism investigations. Under section 215, individual library records and bookstore sales lists can be acquired for an investigation, and the librarians and clerks who provide them are prohibited from disclosing the search. The outcry from librarians over this particular clause was significant enough to prompt John Ashcroft to disclose that, as of fall 2003, the tools provided by this controversial section had not been used.
Section 215 carefully lays out the provision that a person cannot be investigated solely upon the basis of activities protected by the first amendment to the Constitution. A "United States Person" is defined by FISA as a citizen of the United States or an alien lawfully admitted for permanent residence. This does not include foreign nationals.
SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.
Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:
"SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVES-TIGATIONS.
"(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
"(2) An investigation conducted under this section shall-
"(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
"(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
"(b) Each application under this section-
"(1) shall be made to-
"(A) a judge of the court established by section 103(a); or
"(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
"(2) 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.
"(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.
"(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).
"(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.
"(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.
"SEC. 502. CONGRESSIONAL OVERSIGHT.
"(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.
"(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period-
"(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and
"(2) the total number of such orders either granted, modified, or denied.".