Your Library Records Are Safe. That is, Unless You Are an International Terrorist

Although almost four years have passed since the tragic attacks of September 11, 2001, it is imperative that we not forget the horror of that fateful day or the courageous efforts of countless individuals who went to the aid of others in need.  It is also imperative that we learn from the lessons of the attacks.

One such lesson is the critical need for our nation's intelligence and law enforcement officials to be working hand-in-hand in defending our citizens against terrorist threats.  Many parties, including the highly regarded 9/11 Commission, believe that the so-called "wall" that had been erected between our intelligence gathering and law enforcement agencies contributed significantly to the federal government's failure to prevent the September 11th attacks.

In the days since September 11, 2001, Congress has taken steps to implement the lessons learned in order to better protect our citizens against the threat of additional terrorist attacks.  One of the most important of these steps was the enactment of the Patriot Act.

21st Century Law Enforcement Tools for 21st Century Threats

Passed with overwhelming bipartisan support in the United States House of Representatives (357-66) and Senate (98-1), the Patriot Act helped to eliminate the "wall" between intelligence and law enforcement officials.  This legislation also greatly enhanced the investigative tools available to officials working to identify and deter terrorists' plans.  For example, "roving wiretaps" were authorized so as to prevent terrorists from escaping surveillance by switching cell phones or computers, and procedures regarding phone and e-mail traces were updated to match the procedures already in place for ordinary criminal investigations.

Many of the Patriot Act's provisions, including the more controversial provisions concerning library records and so-called "sneak and peak" searches, do not provide new and unprecedented investigative tools to law enforcement officials.  Rather, the Patriot Act allows law enforcement officials to now use tools long available to them regarding organized crime, child pornography, or drug investigations when conducting international terrorism investigations.

The Patriot Act includes various civil liberties protections to ensure that the constitutional rights of American citizens are not infringed upon wrongly.  Importantly, numerous provisions of the act are set to expire at the end of this year unless Congress reauthorizes them.  This "sunset" requirement was purposefully placed in the Patriot Act to ensure that Congress would re-visit the act and make sure it properly balances the needs of law enforcement with the constitutional rights of all Americans.

Unfortunately, much of the debate regarding the Patriot Act has become so exaggerated and distorted that the thoughtful deliberation which reauthorization of this important law deserves is too often missing.  Please allow me to address two examples of said distortions.

Business Record Searches

Of all the aspects of the Patriot Act, perhaps the most controversial is Section 215, which opponents frequently mischaracterize as "the library records provision."  In fact, the act does not mention library records at all. Rather, the Patriot Act amended the procedures and jurisdiction of the Foreign Intelligence Surveillance Court (FISC), which was authorized in 1978 to oversee the use of surveillance and the subpoenaing of business records in foreign intelligence cases.

Originally, a FISC judge could subpoena records only from specified businesses (e.g., airlines and hotels).  The Patriot Act broadens the authority of FISC judges to order the production of any relevant business records.  Section 215 could thus hypothetically be used to subpoena library records, although the Department of Justice has repeatedly stated that the provision has in fact never been used for library records.

Importantly, there are several protections against "fishing expeditions" under the FISC procedures.  First, Section 215 can only be used "to obtain foreign intelligence information not concerning a United States person" or "to protect against international terrorism or clandestine intelligence activities."  Section 215 cannot be used to investigate ordinary crimes or even domestic terrorism.  Second, in order to secure a court order for the production of business records under Section 215, the government must demonstrate to a FISC judge that the information in question is relevant to an investigation pertaining to international terrorism or clandestine intelligence activities.  Third, the government must demonstrate that its investigation is not based solely on the exercise of the First Amendment rights of a U.S. citizen.  Finally, all requests for FISC subpoenas must be reported to the Congressional intelligence committees, which consist of both Republican and Democrat members and their staffs.

It should be noted that grand juries impaneled in ordinary criminal investigations have long issued subpoenas on a routine basis for all sorts of business records, including library records.  Although grand juries are also governed by a requirement that an item subpoenaed is relevant to an investigation, grand juries issue subpoenas without prior court approval and without any express protection for First Amendment rights.  Additionally, unlike with FISC subpoenas, there is no mandated Congressional oversight of grand jury subpoenas.

As of March 2005, only 35 subpoenas have been issued under Section 215 since October 2001 and, once again, none of these subpoenas has been for library records.  The question then must be asked whether, in the absence of evidence showing that current law is not adequately protecting civil liberties, a blanket exemption should be created for library records that could potentially be exploited by terrorists.

Good people can certainly disagree on the correct balance regarding the FISC court's authority to order the production of business records.  The Administration itself has proposed to tighten FISC procedures, clarifying how FISC subpoenas can be challenged in court, as part of its proposal to reauthorize the Patriot Act.  However, the risk of innocent American citizens' library records being wrongly and secretly targeted for review by government officials is not nearly as legitimate as the rhetoric of Patriot Act critics suggest.

Delayed Notification of Search Warrants

A second controversial and often sensationalized provision in the Patriot Act is Section 213, which allows for delayed notification of search warrants.  Referred to derisively as "sneak-and-peak searches," this provision has been incorrectly portrayed as allowing federal agents to search people's homes without providing any notice.

In reality, Section 213 simply created a nationwide standard for when law enforcement may - pursuant to a court order - conduct a search but not serve notice of the search until a later time.  Delayed notification search warrants are a long-existing, crime fighting tool upheld by courts nationwide for decades in organized crime, drug trafficking, and child pornography cases.  Prior to the passage of the Patriot Act, courts across the nation used differing standards for delayed notification.  This lack of uniformity hindered complex terrorism cases.  The enactment of Section 213 of the Patriot Act resolved this problem by establishing a uniform statutory standard.

As with the business records provision, Section 213 of the Patriot Act includes safeguards to ensure that this important investigative tool is not misused.  Notification of a search can be temporarily delayed only when a court determines it is necessary to avoid the intimidation of witnesses, the destruction of evidence, flight from prosecution, physical injury, or death.  In addition, notification can only be delayed for as long a period of time as the court decides is reasonable.

Delayed notification search warrants are rarely used.  The Department of Justice has testified before the House Judiciary Committee that only about 0.2% of all federal search warrants issued nationwide allow for delayed notification.  Yet, given the seriousness and perhaps life and death aspects of international terrorism, organized crime, child pornography and similar crimes, it is essential that law enforcement officials retain this limited ability to conduct court-approved delayed notification searches.

Reauthorization of the Patriot Act

Congress certainly must carry out its oversight responsibilities pertaining to the reauthorization of the Patriot Act in a deliberate and responsible manner.  Although no law can guarantee that another terrorist attack will never again occur on our soil, it is imperative that our laws provide law enforcement officials with the tools they need to guard against the possibility of such attacks while dutifully protecting the constitutional rights of all Americans. 

I pledge to review Patriot Act reauthorization legislation with the seriousness it deserves and will be ever mindful of the delicate balance between the need for effective law enforcement tools to combat terrorism and other crimes and the importance of protecting the civil liberties of our nation's citizens.  The thousands of Americans who lost their lives on that fateful day of September 11, 2001 and the hundreds of thousands of citizens who have entrusted me to represent their best interests in Congress deserve no less.