The 107th United States Congress

Six weeks after the terrorist attacks of September 11, 2001, the 107th Congress overwhelmingly passed the USA PATRIOT Act. The Act's name is an acronym for a phrase that summarizes the purpose of the act: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." A number of provisions in the Act concern civil libertarians. Perhaps the most troubling is Section 215, a provision that has the potential to uniquely chill the exercise of First Amendment rights. Under Section 215, federal investigators are authorized to seek a search warrant for "any tangible things" in a library or bookstore, a category that easily includes book circulation or purchase records, library papers, Internet use records, floppy disks and computer hard drives.

While it is true that before Section 215 federal investigators could seek a search warrant for these items, the provision makes a number of changes that severely threaten our civil liberties. Investigators no longer need meet the standard of probable cause to obtain a search warrant. Rather, an agent need only allege that the requested records "may" be relative to an ongoing terrorism or intelligence investigation. Moreover, nearly every action taken under Section 215 is conducted in secret. The court that authorizes the search warrant meets in secret; the search warrants cannot mention the underlying investigation; and librarians and booksellers served with a warrant are prohibited, under threat of prosecution, from speaking of the investigation to anyone, including the patron or customer whose records were seized. Because of this last provision, it is impossible to know exactly how often investigators have made use of Section 215.

Regardless of the number of times it has been utilized, Section 215's very existence chills the exercise of First Amendment rights. As Vermont Congressman Bernie Sanders eloquently noted in an editorial on Section 215 appearing in The Baltimore Sun, "the right to read without the fear of government surveillance is a cornerstone of our democracy. Freedom of the press means nothing without a corresponding freedom to read. Open and democratic debate is impossible without free and open access to diverse views and a broad array of information."

The USA PATRIOT Act, including Section 215, did not originate in Congress but in the Justice Department. In the wake of September 11, the USA PATRIOT Act was passed by Congress with very little debate and, based on the public comments of a number of Congressman, it appears that Section 215 was unnoticed among the hundreds of pages that comprised the Act. Indeed, now that Section 215 has received public attention, there appears to be significant bipartisan support for legislation proposed by Bernie Sanders that would curtail the reach of the provision. But the carelessness with which the 107th Congress passed Section 215 serves to condemn rather than excuse. By passing Section 215 without assessing its potential impact on free speech, the 107th Congress severely threatened free expression and thereby earns a 2003 Jefferson Muzzle.