This chapter assesses Section 215 of the U.S. PATRIOT Act (Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), which allows Federal agents to ask the Foreign Intelligence Surveillance (FISA) Court to issue an order directing the recipient to produce “Tangible things” in national security terrorism cases.
Before the PATRIOT Act, investigators had limited tools for obtaining certain business records. The Government needed at least a warrant and probable cause to access private records. Section 215 modifies the rules on records searches in two ways. First, there is expansion of the types of entities whose records can be searched. Under the old provisions, the FBI could obtain records only from “a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility.” After the PATRIOT act, third party holders of target’s financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without the target’s knowledge or consent. Second, there is expansion of the types of items subject to search and seizure. Under previous legislation, the FBI could only seek “records.” Under the PATRIOT Act, the FBI can seek “any tangible things (including books, records, papers, documents, and other items).” Now the FBI needs only to certify to a FISA judge without evidence or probable cause. The author of this chapter agrees with those critics of Section 215 who argue that Section 215 threatens citizens’ first amendment freedoms while undermining confidence in the strength of the Government’s commitment to traditional civil rights. 27 references
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