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Debating the Patriot Act: Is the sun setting on Section 215?
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

If you know nothing else about the 342-page USA Patriot Act, you probably know about Section 215 — the controversial provision that expands the power of federal investigators to obtain library, bookstore and other records secretly.

That’s because 215 has become a rallying cry for librarians, civil libertarians and other Americans across the political spectrum who worry that the Patriot Act gives the government too much police power without enough accountability. Grassroots opposition to this and other parts of the Patriot Act has grown around the nation since the act was rushed into law a month after the terrorist attacks of 9/11.

At last count, seven states and 382 cities and counties have passed resolutions opposing the Patriot Act — and Section 215 is always at the center of the debate. Clearly, the prospect of getting checked out by the FBI for checking out the wrong book just plain scares people.

On June 15, the House of Representatives weighed in, voting 238-to-187 to block the part of Section 215 that applies to library and bookstore records. After failing to pass a similar measure last year, lead sponsor Rep. Bernard Sanders, I-Vt., won more support by keeping the provision that allows the FBI to access records covering Internet usage at the library.

The House vote could be reversed in negotiations with the Senate or by a presidential veto. But since 38 Republicans (many of them conservatives suspicious of big government) joined with 199 Democrats, the House action sends a message that reauthorizing Section 215 and 15 other provisions set to expire in December will be a tough fight.

How did 215 change the law when it was enacted in 2001? Before the Patriot Act, federal investigators needed a warrant and probable cause that a crime had been committed to obtain otherwise private library records. Today, however, records of people who aren’t themselves suspects can be searched with little meaningful judicial oversight as long as the government says that the search is part of an investigation to protect against terrorism.

Moreover, 215 places a gag order on the person who must turn over the records. A librarian, for example, would be prohibited from notifying anyone that the records were being searched.

It’s difficult to say how 215 has been implemented, because so much information about that is classified. According to the Justice Department, federal investigators haven’t yet used the Patriot Act to obtain library or bookstore records (a claim disputed by some civil libertarians). Nevertheless, the department believes this power is needed to ensure that libraries don’t become “safe havens for terrorist or clandestine activities.”

However much 215 is or isn’t used, critics contend that the threat of secret searches has a chilling effect on First Amendment freedoms. Librarians and booksellers, for example, worry that people will avoid borrowing or buying books that might trigger FBI interest. A number of cities have adopted resolutions calling on libraries to post Section 215 warnings and advising bookstores to regularly destroy customer records.

According to an American Civil Liberties Union lawsuit challenging the constitutionality of Section 215, fear of the Patriot Act has caused a dramatic decline in memberships and donations at mosques. The ACLU charges that the provision “has inhibited organizations and individuals from publicly expressing their political views, attending mosque and practicing their religion, engaging in political activity, donating money to legitimate charitable organizations, and visiting particular websites, for fear such activity will be disclosed to the government and investigated.”

All of this controversy raises the question: If the government hasn’t used this power (as it claims), why keep it as is? If the law were modified to give libraries or bookstores (or any other institution) the right to seek an independent judicial review of an order, then Section 215 might cease to be a lightning rod for opposition to the Patriot Act.

As Congress debates extending or amending the law, more than 200 more towns and cities are considering resolutions opposing it. Anyone who thinks Americans have forgotten “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” as guaranteed by the First Amendment hasn’t been paying attention to the emotional exchanges in crowded city council meetings in hundreds of communities across the nation since fall 2001.

The argument is as old as the Republic: To what extent, if any, does the demand for more security necessitate restrictions on fundamental rights? At critical moments in our history — from the passage of the Alien and Sedition Acts in 1798 to the anti-communist crusades of the 1950s to the current “war on terrorism” — Americans exercise their First Amendment rights to negotiate the tension between security and freedom.

Like apple pie and motherhood, using freedom to preserve freedom is the American way of life.


House votes to rein in Patriot Act

Despite White House veto threat, lawmakers vote to limit investigators' access to library, bookstore records. 06.16.05

House, Senate panel heads disagree on renewing Patriot Act
Judiciary committee chairmen back different measures for addressing law's expiring provisions, but both plan to call for modifications to 'library provision.' 07.12.05

Patriot Act is Exhibit A on the risks of secrecy
By Paul K. McMasters The problem with excessive government secrecy is that it is a refuge for incompetence — or worse. 07.17.05

Patriot Act

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