HOW SECTION 215 THREATENS READER PRIVACY

In 1953, Supreme Court Justice William O. Douglas wrote, "If the lady from Toledo can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land." Almost all states have since passed confidentiality laws protecting records of reading habits, believing, as a New York State legislator explained when that state passed its library confidentiality law in 1982, "[These] records must be protected from officials who might overreach their constitutional prerogatives. Without such protection, there would be a chilling effect on our library users as inquiring minds turn away from exploring varied avenues of thought because they fear the potentiality of others knowing their reading history."

Under the Foreign Intelligence Surveillance Act of 1978 (known as "FISA"), federal agents could seek an order from the secret Foreign Intelligence Surveillance Court to review certain business records "for purposes of conducting foreign intelligence" if the target was "linked to foreign espionage" or an "agent of a foreign power." Section 215 amends and greatly expands the scope of FISA by granting the FBI the power to access and review "any tangible thing," including bookstore and library records. Those served with Section 215 orders are prohibited from disclosing the fact to anyone else and subjects of surveillance are never notified that their privacy has been compromised. There is no possibility of appeal or independent court review of Section 215 FISA orders.

In addition, investigators are no longer required to limit searches to individuals suspected of involvement in terrorism; instead, they simply need to state to a FISA court judge that the records requested are in connection with a terrorist investigation. This assertion alone is sufficient: The FISA judge has no authority to reject this application. In 2002, the FISA court tried to reject 75 subpoena requests, saying FBI agents had misled the court on the purpose and nature of their investigations. When that decision was overruled by the Department of Justice’s review court—which claimed that all requests for FISA orders are acceptable even if the primary purpose of the investigation has nothing to do with terrorism—The New York Times expressed alarm, calling the ruling "a green light to spy."

Section 215 makes a nod to the First Amendment, but there is no guarantee that searches will not be launched in response to First Amendment–protected activities. Indeed, for non-citizens, no such protection exists at all; they can be investigated solely on the basis of First Amendment–protected activity if the government claims the search is part of a terrorism investigation. And although the section forbids the government from seeking the bookstore and library records of U.S. citizens on the sole basis of activities protected under the First Amendment, it allows a search if the government asserts there is another, not necessarily terrorism-related, basis to the investigation as well. Finally, the provision is shrouded in secrecy in ways that make it impossible to monitor the conduct of government agents, end improper investigations, or—perhaps most alarmingly—to know if or when an investigation has occurred.