Fundamental questions about the use of PATRIOT Act surveillance powers in bookstores and libraries remain unanswered. These include:

1. Why does the government need the power to search records of people who are not suspected of being terrorists or agents of a foreign government?

2. Why is it necessary that Section 215 orders be issued by the secret Foreign Intelligence Surveillance Court and not by courts or grand juries where booksellers and librarians retain the ability to challenge overly broad orders?

3. Why is it necessary to impose a gag order that prevents law-abiding citizens from learning that their records have come under scrutiny?

4. With the growing use of PATRIOT Act-authorized National Security Letters that allow federal investigators to seek records without securing FISA court orders, what guarantees exist that searches receive any independent review?

5. Why can't the number of bookstore and library searches be made public?

The USA PATRIOT Act dramatically expanded the government's authority to monitor the activities of people living in the United States, regardless of whether they are suspected of involvement in terrorism. The legislation, which passed with little debate just weeks after the September 11, 2001 attacks, included a number of provisions that will expire in 2005 unless extended by Congress. As FBI officials noted in a November 2001 memorandum explaining the agency's new authority to issue National Security Letters to gain information on individuals not suspected of terrorism or criminal activity, "in deciding whether or not to re-authorize the broadened authority, Congress certainly will examine the manner in which the FBI has exercised it."

In practice, however, it has been extremely difficult for Congress and the American people to get answers to basic questions about how federal investigators are exercising these new powers. This is partly due to secrecy requirements built into some PATRIOT Act provisions, such as the gag order attached to Section 215, which prohibits recipients of subpoenas for business or personal records from informing any other person that they have been served. But it is also due to clear resistance on the part of the Justice Department to releasing information even under the terms of the Act and freedom of information laws. Congressional oversight committees have repeatedly complained about the quantity and quality of information they have received. Although additional information has doubtless been made available in classified briefings, reactions of some who have had access to such briefings are not encouraging. Lee Hamilton, Vice Chair of the 9/11 Commission told the Senate Judiciary Committee in August that he has seen classified information that suggests "an astounding intrusion into the lives of ordinary Americans that is routine today in Government."

Citizens' groups seeking to exercise the rights of Americans under the Freedom of Information Act have also encountered resistance from the Justice Department. In 2002, the American Civil Liberties Union, the Electronic Privacy Information Center, the American Booksellers Foundation for Free Expression, and the Freedom to Read Foundation filed a FOIA request for records relating to the PATRIOT Act’s most controversial provisions, including Sections 206, 213, 214, 215, and 505. The Justice Department did not respond to the request. The groups filed suit and a judge ultimately ordered the government to process the request. A year later, after the Attorney General announced that the FBI had not used Section 215, the group filed a second FOIA request. Again the Justice Department would not comply, triggering a second lawsuit and another court order requiring that the requests be processed.

An ACLU letter describing the results of these FOIA actions and the information gleaned from the information that was released is attached. Though far from complete, the documents appear to confirm several book community concerns about PATRIOT Act powers. The documents indicate that FBI agents have been instructed that they may seek records of individuals not suspected of wrongdoing, using both Foreign Intelligence Surveillance Court subpoenas and National Security Letters that are agency-issued without any court review; that recipients of Section 215 subpoenas and NSLs are prevented by gag orders from disclosing the searches to anyone, including the person whose records have been sought; that Section 215 orders have been sought since the Attorney General announced the power had not been used and that dozens and perhaps hundreds of NSLs have been issued; and that, despite Justice Department assertions that Section 215 orders can be challenged, the FISA court that issues the orders operates in secret and has no procedural avenues for individuals to appear before it or appeal its decisions.

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