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It's the "shall" language that's at issue. Changing it to "may" would give the judges' discretion to reject an application that technically meets the low relevance (not probable cause) requirements but is not warranted in their opnion.

If for some reason it made it through to the court, it's possible the court would have to grant the request with the 215 language that says "shall".

"Would have to grant"? Please see again Section 215:

Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

Not true, Mary.

Actually, I think 215 is written broadly enough that an ongoing investigation into terrorism is enough - I just find it unlikely that that set of facts would make it through the FBI/DOJ hierarchy to reach the FISA court. If for some reason it made it through to the court, it's possible the court would have to grant the request with the 215 language that says "shall". I believe that the attorney general is also willing to change that to permissive language.

I think Orin Kerr is probably making the same argument we hear many times that 215 offers more privacy because a judge is necessarily involved, unlike criminal subpoenas which are sufficient to get the records. A huge difference, in my opinion (and one I've discussed previously somewhere on this blog), is that the criminal subpoena requires a suspect. Moreover, the library has the option to challenge a subpoena before a judge, so the court review is still possible. Moreover, it's an adversarial court, unlike the FISA court which customarily issues orders based on hearing only the FBI's side.

The article says that the Patriot Act allows the FBI to go to a secret court to request library and bookstore records considered relevant to a national security investigation.

Airoldi's conditional statement "If it had returned with an order from a secret court under the Patriot Act" obviously entails that the FBI had the option of doing so--which you have already allowed in your first comment is not true since the request for records would not have been "relevant to an ongoing investigation into terrorism or clandestine intelligence activities."

The article says that the Patriot Act allows the FBI to go to a secret court to request library and bookstore records for a handwritten note in a library book. Not true, Mary.

Why does Orin Kerr say that there is "probably" more privacy protection under 215 than previously under criminal law? I'm asking you now.

As for the law, it varies by state.

A 2002 criminal case in Colorado strongly protected readers' records in a bookstore, even without the beneift of a state statute. It based the privacy on the state constitution. See Tattered Cover...

In the 1997 Quad/Graphics case based on NY law, a library patron's reading privacy is protected under NY state law, though this is not a criminal case. The NY library confidentiality statute is quite strong.

For criticism of the 1984 Iowa case, see Carolyn M. Hinz, "Brown v. Johnston: The Unexamined Issue of Privacy in Public Library Circulation Records in Iowa," 69 Iowa L. Rev. 535 (January 1984).

The article says that the Patriot Act allows the FBI to go to a secret court to request library and bookstore records considered relevant to a national security investigation.

Minow: True, though I find the term "secret court" overdone. The hearings are closed and the records are sealed, but the judges names are public and they have even issued at least one published decision (on the wall between criminal and FISA investigations.)

"It does not have to show that the people whose records are sought are suspected of any crime or explain why they are being investigated. In addition, librarians and booksellers are forbidden to reveal that they have received an order to surrender customer data."

Minow: All true.

"Our government has always possessed the power to obtain library records, but that power has been subject to safeguards. The Patriot Act eliminated those safeguards and made it impossible for people to ask a judge to rule whether the government needs the information it is after."

Minow: This last sentence is arguably accurate - the law says that the judge shall issue the order, without giving discretion based on whether the government really needs the info, so long as it meets a simple relevance standard. Compare this with the very high standards enunciated in the Tattered Cover decision (Colo) which sets up a balancing test to determine if the government really needs reading records if other evidence is available.

"In the current debate over extending or amending the Patriot Act, one of the key questions is whether a library or any other institution can seek an independent review of an order. Even the attorney general conceded in a recent oversight hearing that this is a problem with the law as written."

Minow: True. It appears that 215 orders are challengeable, but we need clarification in the law and procedures... Alberto Gonzales has conceded that he would support an amendment to clarify this.

"Fortunately for our patrons, we were able to mount a successful challenge to what seems to have been a fishing expedition. If it had returned with an order from a secret court under the Patriot Act, the FBI might now know which residents in our part of Washington State had simply tried to learn more about bin Laden."

Minow: True, though I like to think the request would not likely make it through the channels necessary to get up to the FISA court, at least under these particular facts.

"With a Patriot Act order in hand, I would have been forbidden to disclose even the fact that I had received it and would not have been able to tell this story."

Minow: Definitely true - the gag order is not disputed by anyone. Some people think you can't even tell your own attorney, which is not true. The law, however is muddy enough on whether you can tell your own lawyer that Alberto Gonzales said, ""We support a change in the law to allow for specific challenges to Section 215 orders and would support changes in law that would allow someone to talk to an attorney in preparation of that order."

Sorry, that should have been the Iowa Supreme Court, as you will have seen if you've read through Kerr's post.

It would, at least, need to be relevant to an ongoing investigation into terrorism or clandestine intelligence activities.

But it doesn't seem to bother you at all that Ms. Airoldi spread false information about library law in the pages of a national newspaper.

With respect to a requirement for an "actual target," George Washington University law professor Orin Kerr has suggested that "Section 215 on the whole probably offers more privacy protection in the terrorism context than the law has traditionally offered in the criminal law context."

Kerr cites a 1983 case in which the Ohio Supreme Court rejected a library's argument that an ordinary subpoena could not be used to collect library records. From the decision:

"It is true the State's investigation was only preliminary; and as Brown and the library board argue, no suspects were identified nor was the search for information limited to any named library patrons. This does not diminish the need for the information, however [...]"

It's unlikely that a request like this one would make it through the long chain that would get it before the FISA court in the first place. It would, at least, need to be relevant to an ongoing investigation into terrorism or clandestine intelligence activities.

However, the real problem with 215 is exactly the language you quote - all that it requires is an open authorized investigation. It does not require an actual target. In fact, I've been on panels with FBI and Justice Dept lawyers who have thought (until I point out otherwise) that 215 requires a target since that's what FISA usually requires.

Yet as you point out, only an authorized investigation is required - no suspected target. This provision would legally authorize an entire library database of patron records to be seized ...

There was no actual suspect, but instead it was a fishing expedition with the thinnest of evidence of a real risk.

The same argument would also seem to suggest that the FBI's request for records would not have risen to the standard set in Section 215 itself ("shall specify that the records concerned are sought for an authorized investigation," etc.). This would mean that Airoldi's references to the Patriot Act are to that extent groundless and misleading.

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