The House of Representatives recently considered "The Freedom to Read Act," which would limit the application of section 215 of the Patriot Act. The legislation, sponsored by Rep. Bernie Sanders (VT-Ind.), would prevent funds from being used to apply "for an order requiring the production of library circulation records, library patron lists, book sales records, or book customer lists." Sanders' legislation would limit the government's ability to conduct investigations relevant to terrorist and foreign activities that pose a substantial threat to United States security. Instead of protecting the privacy of citizens, it would turn libraries and other institutions into potential havens for terrorists.

Section 215 of the USA Patriot Act allows a specially designated federal court created under the Foreign Intelligence Surveillance Act of 1978 (FISA) to approve a search for "any tangible thing (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities" so long as any investigation of citizens is not based solely on activities protected by the First Amendment.[1] The goal of Sanders' legislation is to prevent court-approved lawful searches of certain library records, for fear that the law will violate borrowers' privacy and civil liberties.

Like the rest of the Patriot Act, this section was designed to give law enforcement the best tools to collect intelligence effectively. As Deputy Attorney General James B. Comey said in testimony to the House Judiciary Committee earlier this month, "You want to catch a terrorist with his hands on the check instead of his hands on the bomb. You want to be many steps ahead of the devastating event. The way we do that is through preventive and disruptive measures, by using investigative tools to learn as much as we can as quickly as we can and then incapacitating a target at the right moment."[2]

The Patriot Act has been at the center of a storm of hype and misinformation since its passage. Sanders' legislation perpetuates the myth that the Patriot Act is an overly broad law that gives the federal government police state powers. In reality, the activities of ordinary Americans are not of any interest to terrorism investigations. Moreover, there are already significant protections built into the USA Patriot Act that prevent abuse:

• First Amendment rights are expressly protected in Section 501: "An investigation conducted under this section shall 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."[3]
   
• Section 501 also limits investigative powers to obtaining "foreign intelligence information not concerning a United States person" or to protecting "against international terrorism or clandestine intelligence activities."[4] This ensures that investigative activity is aimed at terrorists and others seeking to do harm to the United States, and not aimed at citizens.
   
• Section 215 also provides for congressional oversight, ordering the Attorney General to "fully inform" Congress on how, specifically, the Act has been implemented.

With these safeguards, the likelihood of abuse is slim. Though the ACLU has cited alleged "abuses" of the USA Patriot Act, close review of these allegations shows that "each matter cited by the ACLU either did not, in fact, involve the USA PATRIOT Act, or was an entirely appropriate use of the Act."[5]

The tempest over section 215 is puzzling. Attorney General Alberto Gonzales and FBI Director Robert Mueller recently reported that the "FISA Court has issued 35 orders requiring the production of tangible things under section 215 from the effective date of the Act through March 30th of this year.[6] None of those orders was issued to libraries and/or booksellers, and none was for medical or gun records." With no evidence of abuse, what drives the critics' campaign?

It is certain that Sanders' act has the real potential to harm U.S. counterterrorism efforts. As Assistant Attorney General William Moschella wrote in a letter to Congress, bookstores and libraries "should not be carved out as safe havens for terrorists and spies."[7] He is right. The "tools" of the USA Patriot Act, including section 215 are an important part of the preventative effort to stop terrorist activity in the United States.

Alane Kochems is a Research Assistant, and James Jay Carafano, Ph.D., is Senior Research Fellow for National Security and Homeland Security, in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation. Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation. Chris Molitoris assisted in preparing this Webmemo.