“Any Tangible Thing”: Library Records, Information Privacy, and Section 215 of the USA PATRIOT Act

As part of the USA PATRIOT Act—the wide-ranging statute rushed into law in the weeks following the September 11 terrorist attacks—Section 215 amends and expands the reach of the Foreign Intelligence Surveillance Act of 1978 (FISA) by broadening federal agents' power to (without subpoena) review business records as part of foreign intelligence investigations to include access to “any tangible thing” (H.R. 3162, 2001)—including, as has received much attention, bookstore and library records. Additionally, those served with orders citing Section 215 are forbidden from communicating the fact “to any other person” (H.R. 3162, 2001)—including, for instance, the library patron(s) whose records are being compromised. There is no opportunity for independent judicial review of Section 215 orders. Though defenders of the provision insist that it has been fashioned to address the unique difficulties of investigating and pre-empting terrorist suspects, the section does not require that searches be limited to individuals suspected of terrorist collusion. The provision does make an obligatory gesture to the First Amendment, but critics fear that it unashamedly dismantles constitutional protections surrounding First Amendment activities.