What is Section 215?

What is Section 215?

Section 215 allows the FBI to order any person or entity to turn over "any
tangible things," so long as the FBI "specif[ies]" that the
order is "for an authorized investigation . . . to protect against international
terrorism or clandestine intelligence activities."

Section 215 vastly expands the FBI's power to spy on ordinary people living
in the United States, including United States citizens and permanent residents.

***The FBI need not show probable cause, nor even reasonable
grounds to believe, that the person whose records it seeks is engaged
in criminal activity.

***The FBI need not have any suspicion that the subject
of the investigation is a foreign power or agent of a foreign power.

***The FBI can investigate United States persons based in
part on their exercise of First Amendment rights, and it can investigate
non-United States persons based solely on their exercise of First Amendment
rights.

 
For example, the FBI could spy on a person because they
don't like the books she reads, or because they don't like the web sites
she visits. They could spy on her because she wrote a letter to the editor
that criticized government policy.

***Those served with Section 215 orders are prohibited from
disclosing the fact to anyone else. Those who are the subjects of the
surveillance are never notified that their privacy has been compromised.

 
If the government had been keeping track of what books a person had
been reading, or what web sites she had been visiting, the person would
never know.

Is Section 215 Constitutional?

Normally, the government cannot effect a search without
obtaining a warrant and showing probable cause to believe that the person
has committed or will commit a crime. Section 215 violates the Fourth
Amendment by allowing the government to effect Fourth Amendment searches
without a warrant and without showing probable cause.

 
*The violation of the Fourth Amendment is made more egregious
by the fact that Section 215 might be used to obtain information about
the exercise of First Amendment rights. For example, the FBI could invoke
Section 215 to require a library to produce records showing who had borrowed
a particular book or to produce records showing who had visited a particular
web site.

 
*Section 215 might also be used to obtain material that implicates privacy
interests other than those protected by the First Amendment. For example,
the FBI could use Section 215 to obtain medical records.

The provision violates the First Amendment by prohibiting
those served with Section 215 orders from disclosing that fact to others,
even where there is no real need for secrecy.

The provision violates the First Amendment by effectively
authorizing the FBI to investigate U.S. persons, including American citizens,
based in part on their exercise of First Amendment activity, and by authorizing
the FBI to investigate non-U.S. persons based solely on their exercise
of First Amendment activity.

The provision violates the Fourth and Fifth Amendments by
failing to require that those who are the subject of Section 215 orders
be told that their privacy has been compromised.

Doesn't the government need these powers?

The government already has the authority to prosecute anyone whom it has
probable cause to believe has committed or is planning to commit a crime.
It also has the authority to engage in surveillance of anyone whom it has
probable cause to believe is a foreign power or spy - whether or not the person
is suspected of any crime.

Section 215 takes away a great deal of our liberty and privacy but isn't likely
to get us any security in return.

 
The provision violates the Fourth and Fifth Amendments by
failing to require that those who are the subject of Section 215 orders
be told that their privacy has been compromised.

There's a real possibility that setting the FBI loose on the American public
will have a profound chilling effect on public discourse. If people think
that their conversations and their e-mails are their reading habits are being
monitored, people will inevitably feel less comfortable saying what they think,
especially if what they think is not what the government wants them to think.

Is the FBI abusing its powers?

Attorney General Ashcroft has gone to great lengths to keep secret even the
most basic information about the FBI's spying. For example, in answering questions
posed by the House Judiciary Committee, he classified information that should
not have been classified, including information that would have shown how
often the FBI is spying on people based on their exercise of First Amendment
rights.

The little information that we do have suggests that the FBI is abusing its
powers.

 
For example, a survey conducted by the University of Illinois
suggested that, by December 2001, the FBI had already approached 85 out
of some 1500 libraries.

The ACLU obtained some information about the FBI's use of Section 215 through
a Freedom of Information Act lawsuit. More information about our FOIA request
and related litigation can be found at:


http://www.aclu.org/Privacy/Privacy.cfm?ID=11048&c=130.