USA PATRIOT Act Request and Challenge

The FBI is reportedly demanding library records from a Connecticut institution as part of an intelligence investigation.^[1] The demand, conducted under the auspices of the USA PATRIOT Act, is the first confirmed instance of the Act being used in such a way.^[2] The American Library Association, however, claims that law enforcement officials have made such demands at least 200 times since 2001.^[3]

The demand has resulted in a lawsuit being filed against the Justice Department on August 9, in Bridgeport, Connecticut.^[4] The suit focuses on the FBI’s use of a “national security letter” which allows documents to be demanded without judicial approval and which prohibits institutions from disclosing the request.^[5] An edited copy of the complaint filed by the ALA and the ACLU notes that the FBI was seeking “subscriber information, billing information and access logs,” and that the institution, among other things, “provides Internet access for use by staff and patrons.”^[6]

It is very important to note that the use of national security letters in this scenario is slightly different than the so-called “library provision” of the USA PATRIOT Act, which allows the government to demand records from a range of businesses, including libraries.^[7] This particular part of the Act is codified at 50 U.S.C. § 1861. It provides that the Director of the FBI, or an appropriate designee, may make an application for an order requiring the production of any tangible thing, such as books, records, papers, or documents, for an investigation concerning terrorism or clandestine intelligence activities.^[8] An application under this section must be made to a designated judge or magistrate,^[9] and it must state that the records are being sought for an authorized investigation.^[10] No person is legally allowed to disclose that the FBI has sought or obtained such records.^[11]

It would seem that the reason the demand of information was carried out by using national security letters is that the information sought is of a different nature. Rather than seeking patron records, the government is seeking subscriber information, billing information, and access logs. The authorizing legislation in question here, therefore, is 18 U.S.C. § 2709, which is titled “Counterintelligence access to telephone toll and transactional records.” The statute was originally enacted in 1986, but it was most famously amended in 2001 as part of the USA PATRIOT Act.

Under section 2709, wire or electronic communication service providers are required to comply with requests for subscriber information, toll billing information, or transactional records.^[12] The Director of the FBI, a designated Deputy Assistant Director, or a Special Agent in Charge of a Bureau field office, can request the name, address, and length of service of a person or entity from an electronic communication service provider by certifying in writing that the information sought is relevant to an authorized investigation to protect against international terrorism.^[13] The investigation cannot be conducted solely on the basis of First Amendment activity.^[14] Finally, and perhaps most controversially, no service provider can disclose that the FBI has sought this information.^[15]

The ACLU has filed suit challenging the use of national security letters before. In Doe v. Ashcroft^[16], a District Court Judge in New York ruled that section 2709(c) was an unconstitutional prior restraint on speech in violation of the First Amendment, and because the court felt that subsections (a) and (b) were unseverable from subsection (c), those sections were unconstitutional as well.^[17] Furthermore, the court held that section 2709 violates the Fourth Amendment because it bars judicial challenge to the propriety of a national security letter request.^[18] The case is being appealed.

The national security letter provision might be amended when the USA PATRIOT Act legislation gets reauthorized. The House bill which reauthorizes the provisions of the Act, H.R. 3199, contains an amendment which would allow a person receiving such a letter to consult with a lawyer and seek to have a judge throw out the demand if compliance is deemed unnecessary or oppressive.^[19] The Senate form of reauthorization, S. 1389, would also allow a person receiving such a letter to consult with a lawyer and seek to have a judge review the demand.^[20]

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[1] Eric Lichtblau, F.B.I., Using Patriot Act, Demands Library’s Records, N.Y. Times, Aug. 26, 2005, at A11, available here.
[2] Id.
[3] Id.
[4] Dan Eggen, Library Challenges FBI Request, Wash. Post, Aug. 26, 2005, at A11, available here.
[5] Id.
[6] Id.
[7] Id.
[8] 50 U.S.C. § 1861(a)(1).
[9] Id. § 1861(b)(1).
[10] Id. § 1861(b)(2).
[11] Id. § 1861(d).
[12] 18 U.S.C. § 2709(a).
[13] Id. § 2709(b).
[14] Id.
[15] Id. § 2709(c).
[16] 334 F. Supp. 2d 471 (S.D.N.Y. 2004).
[17] Id. at 475.
[18] Id. at 476.
[19] Eric Lichtblau, House Beats Back Challenge to Patriot Act, N.Y. Times, Jul. 21, 2005 at A11, not readily available on-line.
[20] USA PATRIOT Improvement and Reauthorization Act of 2005, S. 1389, 109th Cong. § 9 (2005).