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Grandmaster
Section 215. Access to business records and other items under the Foreign Intelligence Surveillance Act.Kaith Rustaz said:
- Summary: Allows the FISA court, in an investigation to protect against international terrorism or clandestine intelligence activities, to issue an ex parte order requiring the production of any tangible things.
- Myth: "Many [people] are unaware that their library habits could become the target of government surveillance. In a free society, such monitoring is odious and unnecessary. . . The secrecy that surrounds section 215 leads us to a society where the 'thought police' can target us for what we choose to read or what Websites we visit." [ACLU, July 22, 2003]
- Reality:
- The library habits of ordinary Americans are of no interest to those conducting terrorism investigations. However, historically terrorists and spies have used libraries to plan and carry out activities that threaten our national security. We should not allow libraries to become safe havens for terrorist or clandestine activities.
- Obtaining business records is a long-standing law enforcement tactic. Ordinary grand juries for years have issued subpoenas to all manner of businesses, including libraries and bookstores, for records relevant to criminal inquiries.
- In a recent domestic terrorism criminal case, a grand jury served a subpoena on a bookseller to obtain records showing that a suspect had purchased a book giving instructions on how to build a particularly unusual detonator that had been used in several bombings. This was important evidence identifying the suspect as the bomber.
- In the 1997 Gianni Versace murder case, a Florida grand jury subpoenaed records from public libraries in Miami Beach.
- In the 1990 Zodiac gunman investigation, a New York grand jury subpoenaed records from a public library in Manhattan. Investigators believed that the gunman was inspired by a Scottish occult poet, and wanted to learn who had checked out his books.
- Section 215 authorized the FISA court to issue similar orders in national-security investigations. It contains a number of safeguards that protect civil liberties.
- Section 215 requires FBI agents to get a court order. Agents cannot use this authority unilaterally to compel any entity to turn over its records. FISA orders are unlike grand jury subpoenas, which are requested without court supervision.
- Section 215 has a narrow scope. It can only be used (1) "to obtain foreign intelligence information not concerning a United States person"; or (2) "to protect against international terrorism or clandestine intelligence activities." It cannot be used to investigate ordinary crimes, or even domestic terrorism.
- Section 215 preserves First Amendment rights. It expressly provides that the FBI cannot conduct investigations "of a United States person solely on the basis of activities protected by the First Amendment to the Constitution of the United States."
- Section 215 provides for congressional oversight. Every six months, the Attorney General must "fully inform" Congress on how it has been implemented.
- On October 17, 2002, the House Judiciary Committee issued a press release indicating it is 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."
- There is much misinformation - even disinformation - about the supposed use of section 215 at libraries.
- On November 3, 2002, the Hartford Courant alleged that the FBI installed software on computers at the Hartford Public Library that lets agents track a person's use of the Internet and email messages. The article even said that individuals' library use could be surveilled even if they weren't suspected of being a terrorist. In reality, the FBI obtained a single search warrant to copy the hard drive of a specific computer that had been used to hack into a business computer system in California for criminal purposes. No software was installed on that or any other computer in the library. The Hartford Courant has retracted the story in full.
- Section 215 actually is more protective of privacy than the authorities for ordinary grand jury subpoenas.
- A court must explicitly authorize the use of section 215 to obtain business records. By contrast, a grand jury subpoena is typically issued without any prior judicial review or approval.
- Section 215 expressly protects the First Amendment, unlike federal grand jury subpoenas.
- Section 215 can only be used, in investigations of U.S. persons, to protect against international terrorism or clandestine intelligence activities. A grand jury can obtain business records in investigations of any federal crime.
- The requirement that recipients of these orders keep them confidential is based on "national security letter" statutes, which have existed for decades. (An NSL is a type of administrative subpoena used in certain national-security investigations.)
- The details of FISA-related investigations, including requests for business records, are classified. Classified details about the use of section 215 were provided to the House Permanent Select Committee on Intelligence on July 29, 2002, in response to a request by the House Committee on the Judiciary, and to the Senate Select Committee on Intelligence on January 7, 2003, in response to a request by the Constitution Subcommittee of the Senate Committee on the Judiciary.
- The new tool improved on FISA's original business-records authority in a number of respects:
- It expanded the types of entities that can be compelled to disclose information. Under the old provision, the FBI could obtain records only from "a common carrier, public accommodation facility, physical storage facility or vehicle rental facility." The new provision contains no such restrictions.
- It expanded the types of items that can be requested. Under the old authority, the FBI could only seek "records." Now, the FBI can seek "any tangible things (including books, records, papers, documents, and other items)."
- This provision will sunset on December 31, 2005.
Section 213. Authority for delaying notice of the execution of a warrant.
- Summary: Allows courts, in certain narrow circumstances, to give delayed notice that a search warrant has been executed.
- Myth: "It expands the government's ability to search private property without notice to the owner." [ACLU, Apr. 3, 2003]
- Reality:
- Delayed notification warrants are a long-existing, crime-fighting tool upheld by courts nationwide for decades in organized crime, drug cases and child pornography.
- Section 213 of USA PATRIOT Act simply codified the authority law enforcement already had for decades. Because of differences between jurisdictions, the law was a mix of inconsistent standards that varied widely across the country. This lack of uniformity hindered complex terrorism cases. Section 213 resolved the problem by establishing a uniform statutory standard. Section 213 is a vital aspect of our strategy of prevention - detecting and incapacitating terrorists before they are able to strike.
- The Supreme Court has held the Fourth Amendment does not require law enforcement to give immediate notice of the execution of a search warrant. The Supreme Court emphasized "that covert entries are constitutional in some circumstances, at least if they are made pursuant to a warrant." In fact, the Court stated that an argument to the contrary was "frivolous." Dalia v. U.S., 441 U.S. 238 (1979). In yet another case, the Court said, "officers need not announce their purpose before conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence." Katz v. U.S., 389 U.S. 347 (1967).
- If the Otter Amendment, passed in the House July 22, 2003, becomes law, it would have a devastating effect on our ongoing efforts to detect and prevent terrorism, as well as to combat other serious crimes. This amendment could tip off terrorists or criminals to investigations before law enforcement could obtain the needed information to locate their terrorists or criminal associates, identify and disrupt their plans, or initiate their arrests.
- Premature notification of a search warrant could result in the intimidation of witnesses, destruction of evidence, flight from prosecution, physical injury, and even death.
- In all cases, section 213 requires law enforcement to give notice that property has been searched or seized. It simply allows agents to temporarily delay when the required notification is given.
- This authority can be used only upon the issuance of a court order, in extremely narrow circumstances. Courts can delay notice only when immediate notification may result in death or physical harm to an individual, flight from prosecution, evidence tampering, or witness intimidation.
- Under section 213, courts can delay notice if there is "reasonable cause" to believe that immediate notification may have a specified adverse result. The "reasonable cause" standard is consistent with pre-PATRIOT Act caselaw for delayed notice of warrants. See, e.g., United States v. Villegas, 899 F.2d 1324, 1337 (2d Cir. 1990) (government must show "good reason" for delayed notice of warrants).
- Section 213 is important to law-enforcement investigations of a wide variety of serious crimes, including domestic and international terrorism, drug trafficking, organized crime, and child pornography.
- In United States v. Odeh, a recent narco-terrorism case, a court issued a section 213 warrant in connection with the search of an envelope that had been mailed to a target of an investigation. The search confirmed that the target was operating a hawala money exchange that was used to funnel money to the Middle East, including to an individual associated with someone accused of being an operative for Islamic Jihad in Israel. The delayed-notice provision allowed investigators to conduct the search without fear of compromising an ongoing wiretap on the target and several of the confederates. The target was later charged and notified of the search warrant.
- During an investigation into a nationwide organization that distributes marijuana, cocaine and methamphetamine, the court issued a delayed notice warrant to search the residence in which agents seized in excess of 225 kilograms of drugs. The organization involved relied heavily on the irregular use of cell phones, and usually discontinued the use of cell phones after a seizure of the drugs and drug proceeds, making continued telephone interception difficult. Interceptions after the delayed notice seizure indicated that the suspects thought other drug dealers had stolen their drugs, and none of the telephones intercepted were disposed of, and no one in the organization discontinued their use of telephones. The government was able to prevent these drugs from being sold, without disrupting the larger investigation.
- Delayed notification warrants are a long-existing, crime-fighting tool upheld by courts nationwide for decades in organized crime, drug cases and child pornography.
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