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January 07, 2005


In the interest of facilitating your research, a redacted version of the Attorney General's Guidelines for FBI, National Security Investigations and Foreign Intelligence Collection is available at

The form used by the government to get a section 215 order is available at
All the government does is make a statement that the investigation "is not being conducted solely on the basis of activities protected by the First Amendment."
This is the government's way of complying with Section 215. There have been no reports that this form has been turned down by the FISA courts as noncompliant, and certainly no case law interpreting the form.

Thanks for the response, though it was about as helpful as the typical DOJ flack response e.g. pretty much left me still wondering!

In terms of section 215 the difficulty is that the way its phrased indicates that the judge has discretion in deciding whether or not the application meets the statutory requirements, one of which concerns materials covered by first ammendment protections (2b): "...not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States." It also mentions specific AG guidelines wh. I have not yet found, to wh. the judge would also have to agree that the application conformed.

But as I wrote before, just because something appears to be clearly stated in a law doesn't mean that it's not, in fact, anything but. So, does this really mean that the legal opinion in this instance is so varied only a court case will do?

Libraries will not be surveillance free zones if probable cause is required for
searching libray records. It's not that hard to get a search warrant, and every
state now allows library records to be requested pursuant to a search warrant.
The warrant requirement assures every user of the library that the government
will not go on fishing expeditions to find out what people are reading and viewing.
Fear of these fishing expeditions chills people's desire to go to libraries to read
and surf the web, and it's a fair trade-off, in my view, to let the majority of
people use the library free of fear. A warrant will suffice to get the bad guys.

Regarding your other two questions, we need court decisions to answer them.
Just note that the language of section 215 is mandatory: if an application meets
the statutory requirement, the court has no discretion about issuing the the

I'm still trying to track down whether or not the difference between Section 213's time frame for delayed notification is significantly greater or more variable than that used in other FBI and law-enforcement requests. What does the law consider to be a "reasonable period", do you know?

I'd also like to know how the language of 215 (ammended Sec. 501) to wit: "if the judge finds that the application meets the requirements of this section" affects the "shall order" portion of 501(c)(1). I know in law-land what appears an obvious check is often anything but. Can you help?

Finally: Why is it useful to have our library's free internet computers declared an "anti-terrorism-monitoring-free zone?" [SAFE et. al]? I support the raising to probable cause the request to seize reading records, but I don't want our public libraries to appear unduly attractive to terrorist cells. I'd like to see ammendments to the Patriot Act that make such monitoring more responsive to oversight but I'm leary of the consequences of removing them alltogether. Your thoughts?

Thanks for re-introducing this into our field of vision!

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