Section 215 of the USA PATRIOT Act, known as the “library records” provision, applies to any tangible thing —medical, tax, gun and other records.

This section allows the federal government to get a secret court order for any records or other “tangible things” by certifying merely that they are “sought for” an authorized counter-intelligence, which the Justice Department says is the equivalent of “relevant to.”

USA PATRIOT Act / PATRIOT Reauthorization

Does not require a connection between the records sought and a suspected terrorist. The Patriot Act eliminated the requirement that there be “specific and articulable” facts connecting records sought to a target of an intelligence investigation (still defined to be a person there is probable cause to believe was an agent of a foreign power, including a terrorist group).

Secrecy forever. The business recipients are barred from telling their customers about them. Customers may never get notice their records were obtained. And businesses that receive these orders are not advised that they inherently have a right to consult an attorney and challenge the demand.

Four-year sunset.

This power was scheduled to expire on December 31, 2005.

Does not require a connection between the records sought and aterrorist organization, a suspected terrorist, or even someone in contact with a suspected terrorist, although requires “reason to believe” the records are relevant to an intelligence investigation. Without such a required connection, this leaves opportunities for fishing expeditions.

Illusory right to challenge secrecy. A library can challenge secrecy but the court must accept, as “conclusive,” the government’s assertion of harm to national security, diplomatic relations, or criminal investigation.

Limited right to challenge order. A recipient can tell counsel about the order but must inform the FBI. The recipient has a limited right to file a challenge to the order in the Foreign Intelligence Surveillance Act (FISA) court. Challenge will be heard by a three-judge panel of the FISA Court that can only examine whether the order is authorized by Section 215 or is unlawful. Does not cure the failure to limit order in first place.

New reporting/audits and “study” of minimization do not cure failure to limit. Information collected can be shared inside federal government procedures established.

Seven-year sunset--for the rest of this administration and almost all of the next one, ignoring the will of bipartisan majorities in favor of a shorter four-year sunset.