medical records • magazinesubscriptions • e-mails •bookstore purchases •library circulation records •genetic information • aca-demic transcripts • books •psychiatric records • mem-bership lists • diaries • charitable contributions •airline reservations • hotelrecords • notes • social serv-ices files • medical records •magazine subscriptions • e-mails • bookstore pur-chases • library circulationrecords • genetic informa-tion • academic transcripts• books • psychiatric records• membership lists • diaries• charitable contributions •airline reservations • hotelrecords • notes • social serv-ices files • medical records •magazine subscriptions • e-mails • bookstore pur-chases • library circulationrecords • genetic informa-tion • academic transcripts• books • psychiatric records• membership lists • diaries• charitable contributions •airline reservations • hotelrecords • notes • diaries

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IC ACTSThe FBI’sPower toRifle ThroughYour Recordsand PersonalBelongingsWithoutTelling You

UNPATRIOTICACTS

The FBI's Power to Rifle Through Your Records and Personal Belongings

Without Telling You

UNPATRIOTIC ACTSThe FBI's Power to Rifle Through Your Records and Personal BelongingsWithout Telling You

Published July 2003.

Written by Ann Beeson and Jameel Jaffer.

THE AMERICAN CIVIL LIBERTIES UNION isthe nation’s premier guardian of liberty, workingdaily in courts, legislatures and communities todefend and preserve the individual rights and freedoms guaranteed by the Constitution and thelaws of the United States.

OFFICERS AND DIRECTORSNadine Strossen, PresidentAnthony Romero, Executive DirectorKenneth B. Clark, Chair,

Executive Advisory CouncilRichard Zacks, Treasurer

National Headquarters125 Broad Street, 18th Fl.New York, NY 10004-2400(212) 549-2500www.aclu.org

Table of Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Section 215 Vastly Expands The FBI’s Spying Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

SIDEBAR: The Foreign Intelligence Surveillance Court . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

SIDEBAR: Section 215 . . . . . . . . . . . . . . . . . . . . . . . . . .4

The FBI Can Use Section 215 To Demand Any Records Or “Tangible Things” . . . . . . . . . . . . . . . . . .6

Section 215 Violates The Constitution . . . . . . . . . . . . . . .7

The FBI Can Use Section 215 To Target Immigrants and Other Innocent People . . . . . . . . . . . . . .8

Congress And The Public Must Keep An Eye On The FBI . . . . . . . . . . . . . . . . . . . . . . . . . .9

SIDEBAR: Library Awareness Program . . . . . . . . . . .10

Congress Questions The Patriot Act . . . . . . . . . . . . .11

The Public’s Right To Know . . . . . . . . . . . . . . . . . . . .12

SIDEBAR: National Security Letters . . . . . . . . . . . . .13

SIDEBAR: Spies in the Stacks . . . . . . . . . . . . . . . . . .15

The Justice Department Is Spreading Disinformation About Section 215 . . . . . . . . . . . . . . . . .15

The ACLU Is Working To Restore Constitutional Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

FOREWORD

A MERICANS TEND to trust their govern-ment. No matter how partisan, nomatter how contentious, those of us

who studied the Constitution as childrenexpect the federal government and itsagents to ultimately do the right thing. Evennow, after almost two years of living underthe USA PATRIOT Act, most of us take ourfreedoms for granted – supposing that ourhomes, our medical records, our email aresafe from prying eyes.

Some hear of immigrants jailed for longperiods of time without charges or access tolawyers, of reputations sullied and mar-riages destroyed – and question the accura-cy of news reports, wanting to believe thereis a line our government will not cross.

But as this report, the eighth in a specialseries on civil liberties after 9/11, makesclear, the barriers have been lowered andthe lines redrawn. The PATRIOT Act thatwas rushed through Congress after theattacks, under pressure from the JusticeDepartment, greatly expanded the FBI’sauthority to monitor people living in theUnited States. One section in particular,giving the FBI unprecedented access topersonal records and other belongings inviolation of the First and FourthAmendments, is misunderstood becauseofficials haven’t leveled with the press andpublic. Section 215 targets innocent people,not terrorists; it specifically gives the FBIauthority to monitor people not engaged incriminal activity or espionage, and to do soin complete secrecy.

There should be no wiggle room in “inalien-able rights.” But according to informationdetailed in this report, the FBI can use theprovision to obtain personal belongingsdirectly from your home. It can also getyour medical or psychiatric records, andlists of people who have borrowed a partic-ular book, visited a particular Web site, orworshipped at a particular church, mosque,temple or synagogue.

Unpatriotic Acts is fact-filled, explicit anddeeply unsettling. Once you’ve read it, Ithink you will find it hard to be complacent.

ANTHONY D. ROMEROExecutive DirectorAmerican Civil Liberties Union

UNPATRIOTIC ACTS

IMAGINE THIS SCENARIO: You flee Iraq afterbeing imprisoned and persecuted for yourpolitical views. When you arrive in the

United States, a local charity helps you findhousing and medical care. You start a small busi-ness, join a mosque, and become active in aMuslim community association. You use email ata public library to keep in touch with yourextended family in Iraq, and to discuss politicswith friends. Two years later, you are grateful forthe freedoms you enjoy in your new home.

When the U.S. invades Iraq, you are thankful tobe rid of Saddam but angry about civilian casu-alties and the extended U.S. occupation. Youwrite a letter to the editor of your local newspa-per encouraging a quick transfer of power toIraqi civilians.

An FBI agent who is conducting an investigationof other Iraqi-Americans notices your letter andfinds it troubling. Based on the letter, the soundof your name, and the outside possibility that youmay be connected to the people he’s investigat-ing, he decides to investigate you. He goes to asecret court and gets an order that forces thelibrary and its Internet service provider to turnover all your email messages. Then he getsanother secret order to obtain records from thecharity that helped you when you first arrived inthe United States. Those records lead him to thelocal hospital, where he obtains records of med-ical treatment you received. He serves anotherorder on the local mosque to find out whether ornot you’re a member or serve in a leadershipposition. Though he uncovered nothing suspi-cious about you in his fishing expedition, he getsanother secret order forcing the Muslim commu-

nity association to turn over its entire member-ship list. If not you, he thinks, maybe anothermember has some connection to those peoplehe’s investigating ...

As it turns out, you never learn that the FBI isspying on you. The FBI certainly doesn’t tellyou. And the library, the charity, the hospital, themosque, and the community association are allprohibited – forever – from telling you or anyoneelse that the FBI has asked for your records. Yousimply never learn that the government has beenrifling through your life.

Could such a thing happen to you or someoneyou know? Perhaps it already has. The USAPATRIOT Act vastly expands the FBI’s authorityto monitor people living in the United States.These powers can be used not only against ter-rorists and spies but also against ordinary, law-abiding people – immigrants from Iraq or Italy,dentists from Detroit or Denver, truck driversfrom Tampa or Tulsa, painters from Peoria orPittsburgh. Indeed, the FBI can use these powersto spy on any United States citizen or resident.

This report examines in detail one PATRIOT Actprovision, Section 215, which gives the FBIunprecedented access to sensitive, personalrecords and any “tangible things.” The reportexplains why Section 215 is misguided, danger-ous, and unconstitutional. It reviews the historyof unlawful surveillance, and explains why itwould be a serious mistake for us to rely on thegovernment to police itself. The report also doc-uments attempts by Congress and the ACLU tochallenge the secrecy surrounding the FBI’s useof Section 215. It exposes a government disin-

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UNPATRIOTIC ACTSThe FBI's Power to Rifle Through Your Records and Personal Belongings Without Telling You

formation campaign apparently intended to mis-lead the American public about the nature andscope of this new power. And finally the reportexplains what the ACLU is doing – and what youcan do – to get Section 215 off the books.

SECTION 215 VASTLY EXPANDSTHE FBI’S SPYING POWERS.

What the Law Says

Section 215 vastly expands the FBI’s power tospy on ordinary people living in the UnitedStates, including United States citizens and per-manent residents. It lets the government obtainpersonal records or things about anyone – fromlibraries, Internet service providers, hospitals, orany business – merely by asserting that the itemsare “sought for” an ongoing terrorism investiga-tion. Section 215 threatens individual privacy,because it allows the government free reign tomonitor our activities. It also endangers freedom

of speech, because the threat of government sur-veillance inevitably discourages people fromspeaking out – and especially from disagreeingwith the government.

Section 215 amends an obscure law called theForeign Intelligence Surveillance Act (FISA),which became law in 1978. FISA set out the pro-cedures that the FBI had to follow when it want-ed to conduct surveillance for foreign intelli-gence purposes. The system is extraordinary –not least because the FISA Court meets in secret,almost never publishes its decisions, and allowsonly the government to appear before it. But ofcourse it applied only to foreign spies. Thanks tothe PATRIOT Act, the FBI can now use FISAeven in investigations that don’t involve foreignspies. In fact, under Section 215 the FBI can nowspy on ordinary, law-abiding Americans.

To obtain your personal records or things underSection 215, the FBI does not need to show

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“probable cause” – or any reason – to believethat you have done anything wrong. It does notneed to show that you are involved in terrorism,directly or indirectly, or that you work for acountry that sponsors terrorism. If you are aUnited States citizen or permanent resident, theFBI can obtain a Section 215 order against youbased in part on your First Amendment activity –based, for example, on the books that you bor-rowed from the library, the Web sites you visited,the religious services you attended, or the politi-cal organizations that you joined. If you are not acitizen or permanent resident, the FBI can obtaina Section 215 order against you based solely onyour First Amendment activity.

In fact, Section 215 authorizes federal officialsto fish through personal records and belongingseven if they are not investigating any person inparticular. Under Section 215, the FBI coulddemand a list of every person who has checkedout a particular book on Islamic fundamental-ism. It could demand a list of people who hadvisited a particular Web site. It could demand aclient list from a charity that offers social serv-ices to immigrants.

A gag order in the law prevents anyone servedwith a Section 215 order from telling anyone elsethat the FBI demanded information. Because thegag order remains in effect forever, surveillancetargets – even wholly innocent ones – are nevernotified that their privacy has been compro-mised. If the government uses Section 215 tokeep track of the books you read, the Web sitesyou visit, or the political events you attend, youwill simply never know.

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The Foreign IntelligenceSurveillance Court

Congress created the Foreign IntelligenceSurveillance Court (FISC) in 1978 to overseeFBI surveillance in foreign-intelligence inves-tigations. The FISC hears FBI applications forforeign-intelligence surveillance orders andwarrants, including Section 215 orders. It iscomprised of 11 district court judges who areappointed by the Chief Justice of the UnitedStates Supreme Court for terms of up to sevenyears. Since 1978, the FISC has heard approx-imately 15,000 FBI wiretap and electronicsurveillance applications. (This number doesnot include Section 215 orders, which the FBIis not required to report.) Of these applica-tions, the FISC summarily approved withoutmodification all but five, and it did not rejecteven one.

While the FISC has traditionally granted FBIsurveillance applications, in May 2002 itsjudges issued an extraordinary, unanimousopinion rejecting the Attorney General’s bid formore power to conduct electronic surveillanceunder the PATRIOT Act. Unfortunately, thathistoric opinion was overturned by the ForeignIntelligence Surveillance Court of Review(FISCR), an appeals court that had never con-vened before. (The ACLU filed a friend-of-the-court brief but was not permitted to arguebefore the Court. More information about theextraordinary litigation before the ForeignIntelligence Surveillance Court of Review isposted at http://www.aclu.org/SafeandFree.)After the FISCR opinion, it is less likely thatthe FISC will again attempt to serve as a mean-ingful check on FBI surveillance.

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Before the PATRIOT Act,the FBI could onlyobtain records. Now theFBI has the authority toobtain “any tangiblething.”

People who are not U.S.citizens or permanentresidents can be inves-tigated solely becauseof their FirstAmendment activity –e.g., because they wrotea letter to the editorcriticizing governmentpolicy, or because theyparticipated in a partic-ular political rally. U.S.citizens and permanentresidents can be inves-tigated in part on thebasis of their FirstAmendment activity.

Applications for Section215 orders are ordinari-ly heard by judges ofthe Foreign IntelligenceSurveillance Court.

Section 215

Section 215 amended the Foreign IntelligenceSurveillance Act so that the relevant provision of that actnow reads:

Access to certain business records for foreign intelli-gence and international terrorism investigations

(a) (1) The Director of the Federal Bureau ofInvestigation or a designee of the Director (whoserank shall be no lower than Assistant SpecialAgent in Charge) may make an application for anorder requiring the production of any tangiblethings (including books, records, papers, docu-ments, and other items) for an investigation toobtain foreign intelligence information not con-cerning a United States person or to protectagainst international terrorism or clandestineintelligence activities, provided that such investi-gation of a United States person is not conductedsolely upon the basis of activities protected by thefirst amendment to the Constitution.

(2) An investigation conducted under this section shall

(A) be conducted under guidelines approved bythe Attorney General under ExecutiveOrder 12333 (or a successor order); and

(B) not be conducted of a United States personsolely upon the basis of activities protectedby the first amendment to the Constitutionof the United States.

(b) Each application under this section

(1) shall be made to—

(A) a judge of the court established by section1803(a) of this title; or

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Judges of the ForeignIntelligence SurveillanceCourt have little authori-ty to scrutinize or rejectFBI surveillance appli-cations. If the FBI speci-fies that – in its ownopinion – Section 215’srequirements are met,the judge must grant thesurveillance order.

The FBI need not show“probable cause” or anyreason at all to believethat the target of thesurveillance order isengaged in criminal orterrorist activity. All theFBI needs to do is“specify” that therecords are “soughtfor” an authorizedinvestigation. The sur-veillance target may becompletely innocent.

Those who are orderedto turn over theirrecords (or “tangiblethings”) are prohibitedfrom mentioning to any-one else that the FBImade the demand.

(B) a United States Magistrate Judge underchapter 43 of Title 28, who is publicly des-ignated by the Chief Justice of the UnitedStates to have the power to hear applica-tions and grant orders for the production oftangible things under this section on behalfof a judge of that court; and

(2) shall specify that the records concerned aresought for an authorized investigation conductedin accordance with subsection (a)(2) of this sec-tion to obtain foreign intelligence information notconcerning a United States person or to protectagainst international terrorism or clandestineintelligence activities.

(c) (1) Upon an application made pursuant to thissection, the judge shall enter an ex parte order asrequested, or as modified, approving the releaseof records if the judge finds that the applicationmeets the requirements of this section.

(2) An order under this subsection shall not dis-close that it is issued for purposes of an investi-gation described in subsection (a).

(d) No person shall disclose to any other person(other than those persons necessary to producethe tangible things under this section) that theFederal Bureau of Investigation has sought orobtained tangible things under this section.

(e) A person who, in good faith, produces tangiblethings under an order pursuant to this sectionshall not be liable to any other person for suchproduction. Such production shall not be deemedto constitute a waiver of any privilege in any otherproceeding or context.

THE FBI CAN USE SECTION 215TO DEMAND ANY RECORDS OR“TANGIBLE THINGS.”

There is no restriction on the kinds of records orthings that the FBI can demand under Section215. Before the PATRIOT Act, the FBI’sauthority under this provision was restricted toa discrete category of business records –records from vehicle rental agencies, storagefacilities and other similar businesses. Section215 expands this authority to reach “any tangi-ble things (including books, records, papers,documents, and other items),” held by anyorganization or person. The FBI could useSection 215 to demand:

• personal belongings, such as books, let-ters, journals, or computers, directly fromone’s home.

• a list of people who have visited a partic-ular Web site.

• medical records, including psychiatricrecords.

• a list of people who have borrowed a par-ticular book from a public library.

• a membership list from an advocacyorganization like Greenpeace, theFederalist Society, or the ACLU.

• a list of people who worship at a particu-lar church, mosque, temple, or syna-gogue.

• a list of people who subscribe to a partic-ular periodical.

In fact, the Attorney General himself hasacknowledged that the FBI could use the laweven more broadly. The following exchangebetween the Attorney General and Rep. TammyBaldwin (D-WI) took place before the HouseJudiciary Committee in June 2003:

BALDWIN: Prior to the enactment of the USAPATRIOT Act, a FISA order for businessrecords related only to common carriers,accommodations, storage facilities andvehicle rentals. Is that correct?

ASHCROFT: Yes, it is....BALDWIN: OK. Now, under section 215 of the

USA PATRIOT Act, now the governmentcan obtain any relevant, tangible items. Isthat correct?

ASHCROFT: I think they are authorized to askfor relevant, tangible items.

BALDWIN: And so that would include thingslike book purchase records?

ASHCROFT: ... [I]n the narrow arena in whichthey are authorized to ask, yes.

BALDWIN: A library book or computer records?ASHCROFT: I think it could include a library

book or computer records....BALDWIN: Education records?ASHCROFT: I think there are some education

records that would be susceptible todemand under the court supervision ofFISA, yes.

BALDWIN: Genetic information?ASHCROFT: ... I think [we] probably could.

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Attorney General John Ashcroft.

SECTION 215 VIOLATES THECONSTITUTION.

Section 215 violates the United StatesConstitution. It violates privacy and due processrights guaranteed by the Fourth Amendment, andfree speech rights guaranteed by the FirstAmendment.

The right of the people to besecure in their persons, houses,papers, and effects, againstunreasonable searches andseizures, shall not be violated,and no warrants shall issue, butupon probable cause, . . . .

– United States Constitution,Fourth Amendment

• Section 215 violates the FourthAmendment by allowing the governmentto search and seize your personal recordsor belongings without a warrant and with-out showing probable cause.

The Fourth Amendment ordinarily prohibits thegovernment from searching your home or office,or from seizing your records, unless it firstobtains a warrant based on “probable cause” tobelieve that you are engaged in criminal activity.The Supreme Court has applied this protectionnot just to physical objects but to personal recordsand electronic data. Section 215 does not requirethe government to obtain a warrant or to establishprobable cause before it demands your personalrecords or belongings. In fact, the FBI can useSection 215 against you even if it knows for a factthat you are not engaged in crime or espionage.

• Section 215 also violates the FourthAmendment because it does not requirethe government to provide you with notice– ever – that your records or belongingshave been seized.

Ordinarily the Constitution requires that the gov-ernment notify you before it searches or seizesyour records or belongings. Indeed, the SupremeCourt has held that this “knock and announce”principle is at the core of the FourthAmendment’s protections; without notice, afterall, a person whose privacy rights have been vio-lated will never have an opportunity to challengethe government’s conduct. While in some cir-cumstances delayed notice is permitted to protectagainst the destruction of evidence, the SupremeCourt has never upheld a government search forwhich notice is never provided.

Congress shall make no law . . .abridging the freedom of speech,or of the press; or the right of thepeople peaceably to assemble,and to petition the government fora redress of grievances.

– United States Constitution,First Amendment

• Section 215 violates the First Amendmentbecause it allows the government to easilyobtain information about, for example, thebooks you read, the Web sites you visit, andthe religious institutions you attend.

Section 215 expressly authorizes the governmentto obtain books, records, and other items that areprotected by the First Amendment. The FBIcould use Section 215 to order a library or book-store to produce records showing that you hadborrowed or bought a particular book. It couldforce an Internet Service Provider to turn overyour email messages or records of which Websites you’ve visited. It could demand that a polit-ical organization confirm that you participated ina political rally. It could even order a mosque toprovide a list of all its members.

The Constitution’s warrant and probable causerequirements protect First Amendment interestsby prohibiting the government from spying on

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people based solely on their political views orreligious associations. In a 1972 case involvingelectronic surveillance, the Supreme Court wrote:

History abundantly documentsthe tendency of Government –however benevolent and benignits motives – to view with suspi-cion those who most ferventlydispute its policies. FourthAmendment protections becomethe more necessary when the tar-gets of official surveillance maybe those suspected of unortho-doxy in their political beliefs.

Section 215 is likely to chill lawful dissent. Ifpeople think that their conversations, theiremails, and their reading habits are being moni-tored, people will feel less comfortable sayingwhat they think – especially if they disagree withgovernment policies. Indeed, there is a real dan-ger that the FBI will wield its Section 215 powerspecifically to silence dissenters.

• Section 215 also violates the FirstAmendment by preventing those servedwith Section 215 orders from ever tellinganyone that the FBI demanded informa-tion, even if the information is not tied to aparticular suspect and poses no risk tonational security.

Section 215 prohibits people who receive ordersfor personal records or belongings from disclos-ing that fact to others even where there is no realneed for secrecy. The gag order is extremelybroad. It prevents people from even telling thepress and public that the government has soughtrecords, even if the statement is made in the mostgeneral terms, without identifying the specifictarget of the order. For example, it would preventa library from publicizing statistics about thenumber of times the FBI had sought patronrecords in a given time period. To ensure com-

pliance with the gag order, individual employeesserved with Section 215 orders must strictly limittelling even their fellow staff members that theFBI has demanded information.

Section 215 gag orders are automatic, and do notrequire the government to explain to the judgewhy secrecy is necessary. In other contexts, gagorders are imposed only where the governmenthas made a showing that secrecy is necessary inthe particular case. Section 215 gag orders are alsoindefinite, which means that surveillance targets –even wholly innocent ones – will never know theirprivacy was compromised. In certain investiga-tions, secrecy may sometimes be necessary, andshort-term gag orders may sometimes be unavoid-able. But Section 215 gag orders require no neces-sity and are unlimited. If the First Amendmentmeans anything, it means that the governmentcannot impose an indefinite gag order without ref-erence to the facts of the particular case.

THE FBI CAN USE SECTION 215TO TARGET IMMIGRANTS ANDOTHER INNOCENT PEOPLE.

Section 215 was specifically intended to author-ize the FBI to obtain information about innocentpeople – people who are not engaged in crimi-nal activity or in espionage. Of course, not allinnocent people are likely to be equally affect-ed. As it has done in the past, the FBI is onceagain targeting ethnic, political, and religiousminority communities disproportionately. In thewar on terrorism, the FBI has unfairly targetedminority and immigrant communities with itssurveillance and enforcement efforts. The FBIand the Immigration and Naturalization Service(INS) rounded up over a thousand immigrantsas “special interest” detainees, holding many ofthem without charges for months. A “SpecialRegistration” program now requires tens of

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thousands of Arab and Muslim immigrants tosubmit to a call-in interview from which otherimmigrants are exempted. During the war inIraq, many Iraqis and Iraqi-Americans wereasked to submit to “voluntary” interviews withthe FBI. And a Jan. 28, 2003 New York Timesarticle by Eric Lichtblau (“F.B.I. Tells Offices toCount Local Muslims and Mosques”) reportedthat the FBI ordered its field offices to “estab-lish a yardstick for the number of terrorism

investigations and intelligence warrants” bycounting the number of Muslims and mosquesin their districts.

There is little doubt, then, that Section 215 isbeing used against minorities and immigrantsdisproportionately. This doesn’t make us anysafer, of course. (It bears noting, for example,that none of the immigrants whom the FBI andINS held as “special interest” detainees wascharged with a terrorism-related offense.)Indeed, targeting minorities and immigrants sim-ply because of their ethnicity, religion, or nation-ality wastes resources that could be dedicated toapprehending real terrorists.

In fact, the FBI does not need the PATRIOT Actto investigate people who are legitimately sus-

pected of engaging in terrorist or criminal activi-ty; it has always had this power. Nor does theFBI need the PATRIOT Act to engage in surveil-lance of people who are legitimately suspected ofspying for foreign governments or terroristgroups; it has had this power since 1978. Thegovernment can use these powers – powers thatpre-date the PATRIOT Act – to vigorously pur-sue terrorists and other criminals, consistent withthe Constitution.

CONGRESS AND THE PUBLICMUST KEEP AN EYE ON THE FBI.The FBI has a troubled history. Its predecessororganization was responsible for the 1920Palmer Raids in which thousands of immigrantswere arrested and imprisoned solely because oftheir political beliefs. During the McCarthy era,the FBI supplied Senator McCarthy with infor-mation that ruined the careers of many innocentpeople. In the 1960s, the FBI engaged in a cam-paign to discredit Martin Luther King. Theywiretapped his hotel rooms, tried to block hispublications, and even threatened to disclose per-sonal information about him if he did not commitsuicide. (The ACLU’s soon-to-be-releasedreport, “J. Edgar Hoover Tactics in the 21st

Century,” discusses this history in more detail.)

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"OUR CLIENTS have come to the United States seeking refugefrom persecution. We help them get the services they need inorder to adjust to life here. Of course, we can't get them thehelp they need if they won't trust us with their personal infor-mation. And they won't trust us with their personal informationif they think we're going to hand it over to the FBI. Remember,many of our clients are people who came to the United States toescape totalitarianism. The last thing they want to be told whenthey arrive here is that the government is demanding access totheir medical and social service records."

– MARY LIEBERMAN, Director, Bridge Refugee and Sponsorship Services (East Tennessee).

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Library Awareness Program

The FBI has sent spies into publiclibraries before. In June of 1987, FBIagents approached Paula Kaufman, thedirector of Academic Information Servicesat Columbia University, and demanded thatshe assist them in identifying possible KGBagents. The FBI told Ms. Kaufman that KGBagents were using libraries to gather tech-nical science data and to recruit librarypatrons or the librarians themselves asspies. Instead of cooperating with the FBI,Ms. Kaufman exposed the FBI’s dubiouscounterintelligence program in a letter tothe library association. The disclosure ofthe FBI’s Library Awareness Programcaused a national uproar, particularly afterit became known that the FBI had operatedsuch programs in libraries since at leastthe early 1960s.

Other librarians spoke out – alarmedat the extent of the intrusion into patrons’privacy and academic freedom, and doubt-ful that they would be able to discern KGBspies from legitimate library patrons. WhenThe New York Times asked an FBI spokes-woman, Susan Schnitzer, to define the typeof behavior that librarians were being askedto report, she replied, “It’s hard to define;anything not quite right.” Statements suchas these added to the anxiety that librariansfelt about profiling their patrons.

Many public-interest organizationsalso reacted strongly to the disclosure ofthe Library Awareness Program. TheAmerican Library Association passed a res-olution calling on the FBI to end the pro-gram. The National Security Archives filed aFreedom of Information Act request in July1987 demanding that the FBI release alldocuments related to the program. (Thebureau stalled at first but was forced to

release the records a year later.) The ACLUsent letters to Congress expressing concernabout the legality and efficacy of the pro-gram and arguing that the FBI should limitits investigations to people who were rea-sonably suspected of spying on behalf offoreign governments.

In May 1988, the FBI issued a report,The K.G.B. and the Library Target 1962-Present. In it, the FBI admitted askinglibrary directors to provide the circulationrecords of patrons “with Eastern Europeanor Russian-sounding names,” and to lookout for people copying large quantities oftechnical information or placing “micro-fiches in a briefcase without …checkingthem out.”

While Congress failed to enact legis-lation to prevent a recurrence of misguidedinitiatives such as the Library AwarenessProgram, congressional and public atten-tion to the program did eventually persuadethe FBI to abandon – at least temporarily –its intrusive activities in public libraries.This dark episode was documented byHerbert N. Foerstel in his book Surveillancein the Stacks: The FBI’s Library AwarenessProgram. Now Section 215 of the PATRIOTAct has put FBI agents back in the stacks.

The ACLU of Southern California and the California Library Association created this bookmark to inform library patrons about thethreats to their privacy.

In the late 1970s, a Senate report catalogued FBIabuses during the previous decades and conclud-ed that, “…unless new and tighter controls areestablished by legislation, domestic intelligenceactivities threaten to undermine our democraticsociety and fundamentally alter its nature.” In thelate 1980s, the FBI’s “Library AwarenessProgram” was exposed – a decades-old initiativeto recruit librarians to spy on library patrons forconnections to the KGB. In June of 1997, LouisFreeh, who was then FBI director, went beforethe House Judiciary Subcommittee on Crime totry to persuade the legislators that he and hisagency should be given greater power. His candorstood out. “We are potentially the most dangerousagency in the country,” he stated.

Especially now, when the FBI has far more sur-veillance power than it has ever had before, canwe really afford to let this agency police itself?

Congress Questions the PATRIOT Act

Almost immediately after the PATRIOT Actbecame law, some members of Congress beganto harbor doubts about the Act’s surveillance pro-visions and about the manner in which the FBIappeared to be implementing them. In June 2002,the House Judiciary Committee sent AttorneyGeneral John Ashcroft a letter asking him torespond to 50 questions about the JusticeDepartment’s implementation of the PATRIOTAct. Many of the questions related to the Act’ssurveillance provisions and to Section 215 inparticular. Over the subsequent months, othercongressional committees began to ask questionsof their own.

The Attorney General refused to cooperate fullywith these congressional oversight efforts. Of thequestions posed by the various congressionalcommittees, many still remain unanswered. Evenmore problematic, while the Attorney Generaleventually answered some of Congress’s ques-tions, he declared many of the answers classified

and insisted that they be withheld from the public.The Attorney General furnished even these classi-fied answers only after the chairman of the HouseJudiciary Committee threatened to subpoena himin order to obtain the requested information.

A bipartisan report issued in February 2003 bysenior members of the Senate JudiciaryCommittee expressed deep frustration with theJustice Department’s refusal to submit to con-gressional oversight:

[W]e are disappointed with thenon-responsiveness of the DOJand FBI. Although the FBI andthe DOJ have sometimes cooper-ated with our oversight efforts,often, legitimate requests wentunanswered or the DOJ answerswere delayed for so long or wereso incomplete that they were ofminimal use in the oversightefforts of this Committee. Thedifficulty in obtaining responsesfrom DOJ prompted SenatorSpecter to ask the AttorneyGeneral directly, “how do wecommunicate with you and areyou really too busy to respond?”

The report castigated the Attorney General forhis refusal to explain to the public why new sur-veillance powers were necessary and how thosepowers are being used. “It is our sincere hope,”the report stated, “that the FBI and [JusticeDepartment] will reconsider their approach tocongressional oversight in the future.” Thereport concluded: “The Congress and theAmerican people deserve to know what theirgovernment is doing.”

In May 2003, in response to increasing criticismfrom Congress and the public, the JusticeDepartment finally released a few shreds ofinformation about its use of new surveillance

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powers. The release included information thatthe Justice Department had – for the previous 18months – insisted could not be disclosed withoutjeopardizing national security. Still, the letterwas more notable for what it refused to disclose.The letter refused to disclose guidelines that gov-ern the FBI’s use of foreign-intelligence surveil-lance powers, including Section 215. It alsorefused to say whether the FBI had ever used cer-tain sections of the PATRIOT Act, includingSections 215 – let alone in what contexts thatsection had been invoked. As described below,the ACLU and other public interest organizationshave been able to obtain slightly more detailedinformation through a Freedom of InformationAct request.

The Public’s Right to Know

In August 2002, the ACLU and other publicinterest organizations filed a request under theFreedom of Information Act to obtain informa-tion about the FBI’s reliance on new surveillancepowers. The request asked the Attorney Generalto disclose, among other things:

• the number of times that the FBI hadused Section 215;

• the number of times that the FBI hadused Section 215 to obtain records froma library, bookstore, or newspaper;

• the number of times that the FBI hadused Section 215 to obtain records relat-ing to a specific United States citizen orpermanent resident; and

• the number of times that the FBI hadused Section 215 against a specific per-son because of that person’s engagementin activity protected by the FirstAmendment, e.g. her attendance at apolitical rally, or her membership in aparticular political organization.

When the Attorney General failed to respond tothe FOIA request, the ACLU and its coalitionpartners filed suit to force a response. After thesuit was filed in October 2002, the AttorneyGeneral released approximately 350 pages ofresponsive material.

The records that the Attorney General was forcedto release provide an intriguing – and often chill-ing – glimpse at the pervasiveness and nature ofFBI surveillance under the PATRIOT Act. Onereleased memorandum, apparently produced bythe FBI’s legal arm, emphasizes to FBI fieldoffices that certain new surveillance powers –including Section 215 – can now be used notonly against terrorists but also against ordinarypeople – including U.S. citizens and permanentresidents – who are not suspected of criminalactivity or espionage. Another document, aredacted list which is six pages long, suggeststhat the FBI has also invoked its NationalSecurity Letter (NSL) authority dozens – perhapshundreds – of times since the PATRIOT Act wasenacted. The NSL power allows the governmentto obtain some personal records without anycourt oversight whatsoever.

Still another released document lists the occa-sions on which the FBI has invoked Section 215.The list is relatively short – less than a page long– but, because the FBI has blacked out almost allinformation from the list, it is impossible toknow how many times the FBI has invokedSection 215 or – just as important – in what con-texts it has done so. The secrecy simply has nojustification. No one expects the FBI to disclosethe names of its surveillance targets or the detailsof its intelligence strategy. But there is no goodreason why the Attorney General could not dis-close, at least in general terms, how often newsurveillance powers have been used, and inwhich contexts.

In May 2003, a federal district judge in D.C. heldthat the Freedom of Information Act does not

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National Security Letters

National Security Letters (NSLs)allow the FBI to obtain certain kinds of sen-sitive personal records without obtainingany kind of court order. Three differentstatutory provisions provide NSL authority.One authorizes the FBI to order a tele-phone company or internet service providerto disclose your name, address, length ofservice, and local and long distance tollbilling records. The second authorizes theFBI to order a bank to disclose your finan-cial records. The third authorizes the FBI toorder a credit reporting agency to discloseyour credit report or to disclose the finan-cial institutions with which you haveaccounts. Each of the NSL provisionsincludes “gag” language that prohibitsbusinesses from telling you that the FBIdemanded your records.

The principle difference betweenNSLs and Section 215 orders is that theFBI can issue NSLs unilaterally, withoutprior judicial approval, whereas Section215 orders must be obtained in advancefrom the Foreign Intelligence SurveillanceCourt. The absence of judicial oversightmeans that, when it comes to the use ofNSLs, the FBI has a free hand. Anotherdifference, of course, is that NSLs aremeant to be used only to obtain specifickinds of information, like credit reports. Itnow seems that the FBI is using NSLsmuch more broadly. In response to ques-tions from a Congressional oversight com-mittee, Assistant Attorney General DanielBryant recently conceded that the FBImight even be using NSLs to obtainrecords from libraries and bookstores.

The Assistant Attorney General’sconcession is particularly troubling since

NSL power was expanded under thePATRIOT Act. Before the PATRIOT Actbecame law in October 2001, the FBI couldissue an NSL against you only if it hadreason to believe that you were a foreignspy. Now, however, the FBI can issue anNSL against you even if it knows you arecompletely innocent of any such activity.The only requirement is that the NSL be“sought for” an ongoing investigation. Andof course, there is no judicial oversight toensure that even that minimal standard ismet. The FBI is expected to police itself.

Records obtained by the ACLU andother public interest organizations underthe Freedom of Information Act makeclear that the FBI is using its expandedNSL power aggressively. In fact, the list ofNSLs issued between Oct. 26, 2001 andJan. 21, 2003 takes up six full pages. Doesit really serve national security to allowthe FBI to engage in such aggressive sur-veillance – including surveillance of ordi-nary, law-abiding Americans – without anyjudicial oversight whatsoever?

require the Attorney General to disclose furtherinformation about the FBI’s use of new surveil-lance power. The judge found, however, thatpublic advocacy groups had advanced a “com-pelling argument that the disclosure of this infor-mation will help promote democratic values andgovernment accountability.” Given the districtcourt’s decision, whether the public will be pro-vided additional information about FBI surveil-lance is now up to the Attorney General andCongress. (For more information about theACLU’s FOIA, go to www.aclu.org/patriot_foia.)

If we want to avoid a repeat of the kinds of abuses that occurred in the past, public oversightis essential. The February 2003 Senate reportnoted that past FBI abuses have come to lightonly after “extended periods when the public

and the Congress did not diligently monitor theFBI’s activities.” The report also emphasizedthat statutory reporting requirements, which arevery limited, “are no substitute . . . for thewatchful eye of the public.” It stated: “Publicscrutiny and debate regarding the actions of gov-ernment agencies as powerful as the DOJ andFBI are critical to explaining actions to the citi-zens to whom these agencies are ultimatelyaccountable.” The Senate report got it absolute-ly right: Democracies work only if the publichas the information it needs in order to hold thegovernment accountable for its policies.Overbroad secrecy about government surveil-lance is wholly inconsistent with the most basicdemocratic principles. And as one judge elo-quently put it, “An informed public is the mostpotent of all restraints upon misgovernment.”

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THE JUSTICE DEPARTMENT ISSPREADING DISINFORMATIONABOUT SECTION 215.

At the same time the Attorney General refuses todisclose even the most basic information about theway new surveillance powers are being used, gov-ernment spokespeople are engaged in a campaignof disinformation concerning how new surveil-lance powers – and Section 215 in particular –could be used. (A recent ACLU report, “SeekingTruth From Justice: PATRIOT Propaganda - TheJustice Department’s Campaign to Mislead ThePublic About the USA PATRIOT Act,” atwww.aclu.org/SafeandFree, documents this disin-formation campaign in detail.)

FBI spokespeople have repeatedly asserted, forexample, that Section 215 cannot be used toobtain information about United States citizens.Here’s just one of many examples:

“This is limited only to foreignintelligence,” said Mark Corallo,a spokesman with the Departmentof Justice. “U.S. citizens cannotbe investigated under this act.”

– Florida Today, Sept. 23, 2002

In fact, Section 215 explicitly states that UnitedStates citizens and permanent residents can betargeted under the provision – on condition thatthey not be targeted solely because of activitythat is protected by the First Amendment.

Government spokespeople have also repeatedlyasserted that the FBI cannot obtain a person’srecords under Section 215 without probablecause. Again, here’s one example of many:

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Spies in the Stacks

There is evidence that the FBI is using itssurveillance authority to monitor activity inpublic libraries. In October 2002, the LibraryResearch Center at the University of Illinoisat Urbana-Champaign conducted a survey of1505 public libraries serving populations ofmore than 5000 people. The survey foundthat at least 178 libraries had been visited bythe FBI. In addition, responding to a ques-tion from the House Judiciary Subcommitteeon the Constitution, a senior JusticeDepartment official confirmed that the FBIhas asked for or demanded informationfrom public libraries:

We have made, in light of therecent public information con-cerning visits to the library, wehave conducted an informalsurvey of the field offices,relating to its visits to library.And I think the results fromthis informal survey is thatlibraries have been contactedapproximately 50 times, basedon articulable suspicion or vol-untary calls from librariansregarding suspicious activity.

This response makes clear that the FBI hasbeen monitoring activity at public libraries,but it does not indicate whether the FBI hasused Section 215 in particular. The FBI hasrefused to say, and the gag provision pre-vents anyone else from talking. A questionon the Library Research Center’s survey,however, asked libraries whether they haddeclined to answer any question becausethey thought that they were prohibited bylaw from doing so. Disturbingly, fifteenlibraries answered “yes.”

The Justice Department spokes-man, Mark Corallo, says theassertions about the Act are com-pletely wrong because, for theFBI to check on a citizen’s read-ing habits, it must get a searchwarrant. And to get a warrant, itmust convince a judge “there isprobable cause that the personyou are seeking the informationfor is a terrorist or a foreign spy.”

– Bangor [ME] Daily News,April 9, 2003

In fact, Section 215 does not require the FBI toshow probable cause. All the FBI has to do inorder to invoke the provision is specify that therecords are “sought for” an ongoing investiga-tion. (This standard is sometimes called a “rele-vance” standard.) The FBI does not have to showany reason at all to believe that the target of theinvestigation is a criminal or spy, let alone a ter-rorist. Indeed, the FBI can use Section 215 evenagainst people whom it knows to be wholly inno-cent of any wrongdoing. The government’sassertions to the contrary are simply wrong.

The Justice Department’s own documents –obtained through the ACLU’s Freedom ofInformation Act request – acknowledge thatSection 215 does not require probable cause. AnOct. 26, 2001 memo to “All Divisions” from theFBI’s Office of General Counsel (and approvedby FBI Director Robert S. Mueller III) includes asection on “Changes in FISA Business RecordsAuthority.” It reads:

[Field offices] may continue torequest business records…through FBIHQ in the estab-lished manner. However, suchrequests may now seek produc-tion of any relevant information,

and need only contain informa-tion establishing such relevance.

In a December 2002 letter to Congress, DeputyAttorney General Larry D. Thompson madeessentially the same point:

Under the old language, the FISACourt would issue an order com-pelling the production of certaindefined categories of businessrecords upon a showing of rele-vance and “specific and articula-ble facts” giving reason to believethat the person to whom therecords related was an agent of a foreign power. The USAPATRIOT Act changed the stan-dard to simple relevance.

The government has misrepresented Section 215in yet another way by asserting that the provisioncan be used only against terrorists and spies:

Justice Department spokesmanMark Corallo called [librarians’opposition to the PATRIOT Act]“absurd.” The legislation “doesn’tapply to the average American,”he said. “It’s only for people whoare spying or members of a terror-ist organization.”

– Journal News [NY], April 13, 2003

Before demanding records from alibrary or bookstore under thePATRIOT Act, he [Corallo] said,“one has to convince a judge thatthe person for whom you’re seek-ing a warrant is a spy or a mem-ber of a terrorist organization.”

– San Francisco Chronicle,March 10, 2003

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In fact, nothing in Section 215 prevents the FBIfrom using the provision against ordinary, law-abiding people. As noted above, the FBI cannotinvoke Section 215 unless the records it demandsare “sought for” an ongoing investigation. It is theFBI itself, however, that determines whether thisrequirement is met, and in any event the rele-vance standard certainly does not require the FBIto say – let alone convince a judge – that the tar-get of the Section 215 order is a terrorist or spy.

Especially in light of the Attorney General’srefusal to disclose information about how newsurveillance powers are being used, the govern-

ment’s misleading statements about how thosepowers could be used are exceedingly troubling.The public needs accurate information about thePATRIOT Act.

Misrepresentations about new surveillance pow-ers undermine the public’s ability to determinewhether the new powers are too broad, whetherthey are being abused, and whether they shouldbe renewed before they sunset in 2005. The dis-information campaign short-circuits democraticcontrol over government policy.

THE ACLU IS WORKING TORESTORE CONSTITUTIONALRIGHTS.

The ACLU is drawing on all of its advocacytools to fight Section 215.

First, we are filing in late July 2003 a lawsuit tohave Section 215 declared unconstitutional andunenforceable. Our legal papers argue thatSection 215 violates the Fourth Amendmentbecause it authorizes the FBI to conduct intru-sive investigations without probable cause and

without notice. We argue that Section 215 alsoviolates the First Amendment because it chillsfree speech and unjustifiably prevents organiza-tions from disclosing even to innocent peoplethat their privacy has been compromised. Among the plaintiffs in the suit are:

• Muslim Community Association of AnnArbor (Ann Arbor, Michigan) – a non-profitorganization that serves the religious needsof Muslims in and around Ann Arbor. TheMCA, which has approximately 1000 regis-

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"IN THE BEGINNING, I hesitated to participate in this law-suit because I feared government retaliation. FBI agentsrecently singled me out for a visit at home. I am a U.S. citi-zen, but perhaps they singled me out because of my reli-gion, or because I was active in rallying local communitiesand civil rights groups to support some of my friends whowere imprisoned for minor immigration violations. The visitwas not a pleasant experience. The FBI has no right toinvestigate me or my fellow Arab and Muslim immigrantswhen we have done nothing wrong. Eventually, I decided tospeak out and join this lawsuit because I care about what'shappening to the country and to the Constitution."

– HOMAM ALBAROUDI, Member, Muslim CommunityAssociation of Ann Arbor

tered members, owns and administers amosque and an Islamic school.

• American-Arab Anti-Discrimination Com-mittee (Washington, DC) – a national civilrights organization committed to defendingthe rights of people of Arab descent. ADC,which was founded in 1980 by former U.S.Senator James Abourezk, is the largest Arab-American grassroots organization in theUnited States.

• Arab Community Center for Economicand Social Services (Dearborn, Michigan) –a human services organization committed tothe development of the Arab-American com-munity in all aspects of its economic and cul-tural life. ACCESS provides a wide range ofsocial, mental health, educational, artistic,employment, legal and medical services.

• Bridge Refugee and Sponsorship Services(Knoxville, Tennessee) – an ecumenical,nonprofit organization dedicated to helpingrefugees navigate the road to United Statescitizenship. Bridge recruits and trains churchsponsors to help refugees create new lives inEast Tennessee; and manages refugees’ casesuntil the refugees are eligible to apply forUnited States citizenship.

• Council on American-Islamic Relations(Washington, DC) – a non-profit, grassrootsmembership organization dedicated to pre-senting an Islamic perspective on issues of

importance to the American public, and toempowering Muslims in the United Statesthrough social and political activism. CAIRhas chapters nationwide.

Second, the ACLU is actively urging Congress torepeal or amend Section 215. Bills to repeal or atleast limit Section 215 have been introduced inboth the House and Senate. Other proposed leg-islation would provide for increased public andCongressional oversight of PATRIOT Act pow-ers. (See www.aclu.org/SafeandFree.)

Finally, as part of a growing grassroots move-ment, the ACLU is supporting coalitions aroundthe country that are working to pass communityresolutions opposing the PATRIOT Act. As thisreport goes to press, 142 communities in 27 stateshave passed resolutions opposing the USAPATRIOT Act, and dozens more are preparing todo so. Communities that have adopted resolutionsrange from the small, such as the North Pole,Alaska and Carrboro, North Carolina, to the verylarge, such as Philadelphia, Baltimore, Detriotand San Francisco. (For more on community res-olutions, see www.aclu.org/resolutions.)

The strength of our democracy depends on ourcommitment to individual privacy, equality, andfreedom of expression. The ACLU is fundamen-tally committed to protecting those rights. Wewill not forget the surveillance abuses of thepast, or allow a return to the mistakes of that era.We urge you to join us in this important battlefor liberty.

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OTHER SAFE & FREE REPORTS

Civil Liberties After 9-11: The ACLU DefendsFreedom (September 2002)

Insatiable Appetite: The Government’sDemand for New and Unnecessary PowersAfter September 11 (October 2002)

Bigger Monster, Weaker Chains: The Growthof an American Surveillance Society (January 2003)

Freedom Under Fire: Dissent in Post-9/11America (May 2003)

Independence Day 2003: Main Street AmericaFights the Federal Government’s InsatiableAppetite for New Powers in the Post 9/11 Era(July 2003)

Seeking Truth From Justice: PATRIOTPropaganda – The Justice Department’sCampaign to Mislead The Public About theUSA PATRIOT Act (July 2003)

J. Edgar Hoover Tactics in the 21st Century:History gives African Americans reason foralarm over new federal police powers(forthcoming September 2003)

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National Headquarters125 Broad Street, 18th Fl.New York, NY 10004-2400

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