Patriot Act Provision Challenged in Court

ACLU challenges FBI's expanded powers to search and seize private records.

The expanded powers that Congress gave the FBI to search and seize private records—as well as other personal information and belongings—have been a source of criticism since the new authorities were enacted as part of the Patriot Act shortly after the Sept. 11, 2001, terrorist attacks. More than 140 towns and other localities around the country have voted in opposition to the Act, and today, the American Civil Liberties Union is challenging the new powers in court.

The focus of the lawsuit is Section 215 of the Act, which gives the FBI greater powers to secretly procure records of people in the United States, including citizens. The FBI does not have to show probable cause that the target of an investigation is a criminal suspect or a foreign agent, and it never has to notify the target. The suit names Attorney General John Ashcroft and FBI Director Robert Mueller as defendants.

The government can use the provision to force Internet Service Providers and any other enterprise, including hospitals, telephone companies and universities, to hand over the records of any individual, as long as the records are being sought for a foreign intelligence, counterintelligence or international terrorism investigation.

Under a previous law, the FBI could demand business records from companies like car rental agencies, storage facilities, and telephone companies if it had specific facts leading it to believe that the records pertained to a foreign agent. Under the Patriot Act, the FBI can demand any records from any company and without showing criminal or foreign intelligence probable cause.

Any company served with a Section 215 order is prohibited from ever disclosing that the FBI sought records from it. The ACLU, filing the suit on behalf of several Muslim, Arab and refugee assistance organizations, charged that Section 215 violates the First Amendment by putting a gag order on ISPs and any other enterprise the FBI uses it on.

Now, the government can require a bookstore to hand over a list of people who had bought a particular book or require a healthcare facility to hand over a list of patients, the ACLU said in its lawsuit filed with the U.S. District Court for the Eastern District of Michigan, Southern Division.

Section 215 violates the Fourth Amendment right to privacy by empowering the FBI to conduct searches without criminal or foreign intelligence probable cause, and without ever notifying targets of the violation of their right.

The lawsuit details complaints by Muslim and Arab organizations, charging that they have been targets of investigations conducted under Section 215 authorities. It also charges that their First Amendment rights to free speech, religion and assembly have been violated.